<PAGE>
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report: August 6, 1999
- ---------------------------------
(Date of earliest event reported)
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION ON BEHALF OF THE
TOYOTA AUTO RECEIVABLES 1999-A OWNER TRUST
--------------------------------------------------------------
(Exact name of registrant as specified in its charter)
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CALIFORNIA 333-76505 33-036836
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(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer Identification No.)
of Incorporation)
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19001 South Western Avenue
Torrance, California 90509
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(Address of principal executive offices)
Registrant's telephone number, including area code: (310) 787-3541
ITEM 5. OTHER EVENTS
On July 22, 1999, Toyota Motor Credit Receivables Corporation
("TMCRC") and Toyota Motor Credit Corporation ("TMCC") entered into that certain
Receivables Purchase Agreement dated as of July 1, 1999 (the "Receivables
Purchase Agreement"), pursuant to which TMCC transferred to TMCRC certain retail
installment sales contracts relating to certain new and used automobiles and
light duty trucks (the "Receivables") and related property. On July 22, 1999,
the Toyota Auto Receivables 1999-A Owner Trust, a Delaware business trust
created pursuant to that certain Amended and Restated Trust Agreement dated as
of July 1, 1999 (the "Trust Agreement"), by and between TMCRC, as depositor,
U.S. Bank National Association, as Owner Trustee, and First Union Trust Company,
National Association, as Delaware Co-trustee, (the "Trust"), TMCRC, as seller,
and TMCC, as servicer, entered into that certain Sale and Servicing Agreement
dated as of July 1, 1999 (the "Sale and Servicing Agreement"), pursuant to which
the Receivables and related property were transferred to the Trust. Also on July
22, 1999, the Trust caused the issuance, pursuant to an Indenture dated as of
July 1, 1999 (the "Indenture"), by and between the Trust, as issuer, and U.S.
Bank National Association, as indenture trustee, and pursuant to the Sale and
Servicing Agreement, of the Notes, issued in the following classes: Class A-1,
Class A-2, Class A-3, Class B and Class C (collectively, the "Notes"). The
Notes, with an aggregate scheduled principal balance, as of July 1, 1999, of
$961,976,000., were sold to Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Bear, Stearns & Co., Inc., Credit Suisse First Boston
Corporation, Morgan Stanley & Co. Incorporated, Lehman Brothers Inc., and
Salomon Smith Barney Inc., as underwriters (the "Underwriters"), pursuant to an
Underwriting Agreement dated as of July 13, 1999, by and between TMCRC, TMCC and
the Underwriters. The Notes have been registered pursuant to the Securities Act
of 1933, as amended, under a Registration Statement on Form S-3 (Commission File
No. 333-76505).
Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Sale and Servicing Agreement.
<PAGE>
Attached as Exhibit 4.1 is the Sale and Servicing Agreement,
as Exhibit 4.2 is the Indenture, as Exhibit 4.3 is the Receivables Purchase
Agreement, as Exhibit 4.4 is the Trust Agreement and as Exhibit 4.5 is the
Administration Agreement.
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EXHIBIT INDEX
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Not applicable.
(b) Not applicable.
(c) Exhibits
The exhibit number corresponds with Item 601(a) of Regulation S-K.
Exhibit No. Description
----------- -----------
Exhibit 4.1 Sale and Servicing Agreement dated as of
July 1, 1999, by and among the Registrant,
as issuer, TMCRC, as seller, and TMCC, as
servicer.
Exhibit 4.2 Indenture dated as of July 1, 1999, by and
between the Registrant, as issuer and U.S.
Bank National Association, as indenture
trustee.
Exhibit 4.3 Receivables Purchase Agreement dated as of
July 1, 1999, between TMCRC, as purchaser
and TMCC, as seller.
Exhibit 4.4 Trust Agreement dated as of July 1, 1999,
between TMCRC, as depositor, U.S. Bank
National Association, as Owner Trustee, and
First Union Trust Company, National
Association, as Delaware Co-trustee.
Exhibit 4.5 Administration Agreement dated as of July 1,
1999, among the Registrant, as issuer, TMCC,
as administrator, U.S. Bank National
Association, as indenture trustee and U.S.
Bank National Association, as owner trustee.
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on behalf of the
Registrant by the undersigned thereunto duly authorized.
TOYOTA MOTOR CREDIT RECEIVABLES
CORPORATION
By: /s/ Lloyd Mistele
---------------------------------
Name: Lloyd Mistele
Title: President
August 6, 1999
<PAGE>
EXHIBIT INDEX
Item 601(a) of Regulation S-K
Exhibit No. Description
- ----------- -----------
Exhibit 4.1 Sale and Servicing Agreement dated as of
July 1, 1999, by and among the Registrant,
as issuer, TMCRC, as seller, and TMCC, as
servicer.
Exhibit 4.2 Indenture dated as of July 1, 1999, by and
between the Registrant, as issuer and U.S.
Bank National Association, as indenture
trustee.
Exhibit 4.3 Receivables Purchase Agreement dated as of
July 1, 1999, between TMCRC, as purchaser
and TMCC, as seller.
Exhibit 4.4 Trust Agreement dated as of July 1, 1999,
between TMCRC, as depositor, U.S. Bank
National Association, as Owner Trustee, and
First Union Trust Company, National
Association, as Delaware Co-trustee.
Exhibit 4.5 Administration Agreement dated as of July 1,
1999, among the Registrant, as issuer, TMCC,
as administrator, U.S. Bank National
Association, as indenture trustee and U.S.
Bank National Association, as owner trustee.
<PAGE>
EXHIBIT 4.1
SALE AND SERVICING AGREEMENT
among
TOYOTA AUTO RECEIVABLES 1999-A OWNER TRUST
as Issuer,
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION,
as Seller,
and
TOYOTA MOTOR CREDIT CORPORATION,
as Servicer
Dated as of July 1, 1999
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
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SECTION 1.01 Definitions...........................................................................1
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01 Conveyance of Receivables............................................................21
SECTION 2.02 Custody of Receivables Files.........................................................23
SECTION 2.03 Acceptance by Owner Trustee..........................................................23
ARTICLE III
THE RECEIVABLES
SECTION 3.01 Representations and Warranties of the Seller with Respect to the
Receivables .........................................................................23
SECTION 3.02 Repurchase upon Breach...............................................................27
SECTION 3.03 Duties of Servicer as Custodian......................................................27
SECTION 3.04 Instructions; Authority To Act.......................................................28
SECTION 3.05 Custodian's Indemnification..........................................................28
SECTION 3.06 Effective Period and Termination.....................................................28
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.01 Duties of Servicer...................................................................29
SECTION 4.02 Collection and Allocation of Receivable Payments.....................................30
SECTION 4.03 Rebates on Full Prepayments..........................................................30
SECTION 4.04 Realization upon Receivables.........................................................31
SECTION 4.05 Physical Damage Insurance............................................................31
SECTION 4.06 Maintenance of Security Interests in Financed Vehicles...............................31
SECTION 4.07 Covenants of Servicer................................................................31
SECTION 4.08 Purchase of Receivables upon Breach..................................................32
SECTION 4.09 Servicing Fee and Expenses...........................................................32
SECTION 4.10 Servicer's Certificate...............................................................33
SECTION 4.11 Annual Statement as to Compliance; Notice of Default.................................33
SECTION 4.12 Annual Accountants' Report...........................................................33
SECTION 4.13 Access to Certain Documentation and Information
Regarding Receivables................................................................34
SECTION 4.14 Appointment of Subservicer...........................................................34
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SECTION 4.15 Amendments to Schedule of Receivables................................................34
SECTION 4.16 Reports to Securityholders and Rating Agencies.......................................34
ARTICLE V
ACCOUNTS; PAYMENTS AND DISTRIBUTIONS; STATEMENTS TO SECURITYHOLDERS
SECTION 5.01 Establishment of Collection Account and Payahead Account.............................35
SECTION 5.02 Collections..........................................................................36
SECTION 5.03 Application of Collections...........................................................37
SECTION 5.04 Advances.............................................................................38
SECTION 5.05 Additional Deposits..................................................................39
SECTION 5.06 Payments and Distributions...........................................................40
SECTION 5.07 Reserve Account......................................................................45
SECTION 5.08 Statements to Certificateholders and Noteholders.....................................46
SECTION 5.09 Net Deposits.........................................................................47
ARTICLE VI
THE SELLER
SECTION 6.01 Representations of Seller............................................................47
SECTION 6.02 Corporate Existence..................................................................48
SECTION 6.03 Liability of Seller; Indemnities.....................................................49
SECTION 6.04 Merger or Consolidation of, or Assumption of the Obligations of
Seller...............................................................................49
SECTION 6.05 Limitation on Liability of Seller and Others.........................................50
SECTION 6.06 Seller May Own Certificates or Notes.................................................50
ARTICLE VII
THE SERVICER
SECTION 7.01 Representations of Servicer..........................................................50
SECTION 7.02 Indemnities of Servicer..............................................................52
SECTION 7.03 Merger or Consolidation of, or Assumption of the Obligations of
Servicer.............................................................................53
SECTION 7.04 Limitation on Liability of Servicer and Others.......................................54
SECTION 7.05 TMCC Not To Resign as Servicer.......................................................54
ARTICLE VIII
DEFAULT
SECTION 8.01 Servicer Default.....................................................................54
SECTION 8.02 Appointment of Successor.............................................................56
SECTION 8.03 Repayment of Advances................................................................57
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SECTION 8.04 Notification.........................................................................57
ARTICLE IX
TERMINATION
SECTION 9.01 Optional Purchase of All Receivables.................................................57
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Amendment............................................................................58
SECTION 10.02 Protection of Title to Trust.........................................................60
SECTION 10.03 Notices..............................................................................61
SECTION 10.04 Assignment by the Seller or the Servicer.............................................62
SECTION 10.05 Limitations on Rights of Others......................................................62
SECTION 10.06 Severability.........................................................................62
SECTION 10.07 Separate Counterparts................................................................62
SECTION 10.08 Headings.............................................................................62
SECTION 10.09 Governing Law........................................................................62
SECTION 10.10 Assignment by Issuer.................................................................62
SECTION 10.11 Nonpetition Covenants................................................................62
SECTION 10.12 Limitation of Liability of Owner Trustee and Indenture Trustee.......................63
SCHEDULE A Schedule of Receivables
EXHIBIT A Form of Servicer's Certificate
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<PAGE>
SALE AND SERVICING AGREEMENT dated as of July 1, 1999, among TOYOTA
AUTO RECEIVABLES 1999-A OWNER TRUST, a Delaware business trust (the "Issuer"),
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION, a California corporation ("TMCRC"
or the "Seller"), and TOYOTA MOTOR CREDIT CORPORATION, a California corporation
("TMCC" or the "Servicer").
WHEREAS the Issuer desires to purchase a portfolio of receivables
arising in connection with retail installment sales contracts secured by new or
used automobiles and light duty trucks generated by Toyota Motor Credit
Corporation in the ordinary course of business and sold to the Seller;
WHEREAS the Seller is willing to sell such receivables to the Issuer;
and
WHEREAS the Servicer is willing to service such receivables;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
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:
"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.
"ADMINISTRATIVE PURCHASE PAYMENT" means, with respect to a Payment Date
and to (1) an Administrative Receivable which is a Precomputed Receivable
purchased by the Servicer as of the close of business on the last day of the
related Collection Period, (a) the sum of (i) all Scheduled Payments on such
Receivable due after the last day of such Collection Period, (ii) an amount
equal to any reimbursement of Outstanding Advances made pursuant to Section
5.04(c) with respect to such Receivable and (iii) all past due Scheduled
Payments for which an Advance has not been made, minus (b) all Payments Ahead
with respect to such Receivable then on deposit in the Payahead Account and (2)
an Administrative Receivable which is a Simple Interest Receivable purchased by
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
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such unpaid Principal Balance at a rate equal to the related APR to the last day
of the related Collection Period.
"ADMINISTRATION AGREEMENT" means the Administration Agreement dated as
of July 1, 1999, among the Administrator, the Issuer and the Indenture Trustee.
"ADMINISTRATIVE RECEIVABLE" means a Receivable which the Servicer is
required to purchase pursuant to Section 3.02 or 4.08 or which the Servicer has
elected to purchase pursuant to Section 9.01.
"ADMINISTRATOR" means TMCC, or any successor Administrator under the
Administration Agreement.
"ADVANCE" means a Precomputed Advance or Simple Interest Advance.
"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 the sum of (x) all Net
Liquidation Proceeds collected during such Collection Period with respect to
Defaulted Receivables and (y) all amounts received during such Collection Period
in respect of the Receivables liquidated in prior Collection Periods net of any
Liquidation Expenses incurred during such Collection Period in connection with
the recovery of such amounts.
"AGREEMENT" means this Sale and Servicing Agreement among the Toyota
Auto Receivables 1999-A Owner Trust, as Issuer, TMCRC, as seller, and TMCC, as
servicer, 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.
"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.
2
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"AVAILABLE COLLECTIONS" means, with respect to any Payment Date, the
total of the following amounts received by the Servicer on or in respect of the
Receivables during (or for application with respect to) 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 all (i) collections on or in respect of all
Receivables other than Defaulted Receivables (including Applied
Payments Ahead, but otherwise excluding Payments Ahead), (ii) Net
Liquidation Proceeds, (iii) Advances made by the Servicer, (iv) all
Warranty Purchase Payments and (v) all Administrative Purchase
Payments, less
(b) the sum of all (i) amounts received on or in respect of a
particular Receivable (other than a Defaulted Receivable) to the extent
of the aggregate Outstanding Advances in respect of such Receivable,
(ii) Net Liquidation Proceeds with respect to a particular Receivable
to the extent of the aggregate Outstanding Advances in respect of such
Receivable, (iii) recoveries from collections on other Receivables to
the extent of Advances made by the Servicer on a particular Receivable
that the Servicer has determined are Nonrecoverable Advances, (iv) late
fees, extension fees and other administrative fees and expenses or
similar charges (which are payable to the Servicer as Supplemental
Servicing Fees) collected by the Servicer and (v) Rebates.
"BASIC DOCUMENTS" means the Receivables Purchase Agreement, the Trust
Agreement, the Certificate of Trust, this Sale and Servicing Agreement, the
Indenture, the Administration Agreement, the Securities Account Control
Agreement, the Note Depository Agreement and the other documents and
certificates delivered in connection herewith and therewith.
"BASIC SERVICING FEE" means the fee payable to the Servicer on each
Payment Date, calculated pursuant to Section 4.09, 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 Payment Date, the
Original Pool Balance.
"BOOK-ENTRY NOTES" means beneficial interests in Notes, ownership and
transfer of which shall be made through book entries by a Clearing Agency as
described in the Trust Agreement and the Indenture, respectively.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York, San Francisco, California,
or Chicago Illinois are authorized or obligated by law, executive order or
governmental decree to be closed.
"CERTIFICATE BALANCE" means the Initial Certificate Balance less any
amounts distributed to the holder of the Certificates pursuant to Section
5.06(c)(ii)(F), 5.06(d)(ix) and/or 5.06(e)(ii)(E) hereof (but in no event less
than zero).
"CERTIFICATES" has the meaning assigned in the Trust Agreement.
"CERTIFICATEHOLDERS" has the meaning assigned to such term in the Trust
Agreement.
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"CERTIFICATE REGISTER" means the register maintained by the Owner
Trustee pursuant to the Trust Agreement recording the name of each registered
holder of a Certificate.
"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 aggregate Principal Balance on the last day of the Collection Period
immediately preceding such Collection Period and (ii) the aggregate Principal
Balance on the last day of such Collection Period; such quotient is then
multiplied by twelve to arrive at an annualized percentage.
"CLASS" means any one of the classes of Notes.
"CLASS A-1 FINAL SCHEDULED PAYMENT DATE" means the Payment Date in July
2000.
"CLASS A-1 INITIAL PRINCIPAL BALANCE" $303,000,000.00.
"CLASS A-1 INTEREST CARRYOVER SHORTFALL" means, with respect to any
Payment Date, the excess, if any, of (x) the Class A-1 Interest Distributable
Amount for such Payment Date and any outstanding Class A-1 Interest Carryover
Shortfall from the immediately preceding Payment Date (together with interest on
such outstanding Class A-1 Interest Carryover Shortfall at the Class A-1 Rate,
to the extent lawful, calculated on the same basis as interest on the Class A-1
Notes for the same period), over (y) the amount of interest distributed to the
Class A-1 Noteholders on such Payment Date.
"CLASS A-1 INTEREST DISTRIBUTABLE AMOUNT" means the amount of interest
accrued during the related Interest Period (calculated on the basis of the
actual number of days in such Interest Period and a year assumed to consist of
360 days) on the Class A-1 Principal Balance as of the immediately preceding
Payment Date (after giving effect to payments of principal made on such
immediately preceding Payment Date) at the Class A-1 Rate or, in the case of the
first Payment Date, on the Class A-1 Initial Principal Balance.
"CLASS A-1 NOTE" means any of the 5.365% Asset Backed Notes, Class A-1,
issued under the Indenture.
"CLASS A-1 NOTEHOLDER" means any of the Person in whose name a Class
A-1 Note is registered in the Note Register.
"CLASS A-1 PRINCIPAL BALANCE" as of any date means the Class A-1
Initial Principal Balance less all amounts paid to the holders of Class A-1
Notes in respect of principal pursuant to Section 5.06 hereof.
"CLASS A-1 RATE" means 5.365% per annum.
"CLASS A-2 FINAL SCHEDULED PAYMENT DATE" means the Payment Date in
December 2001.
"CLASS A-2 INITIAL PRINCIPAL BALANCE" $284,000,000.00.
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"CLASS A-2 INTEREST CARRYOVER SHORTFALL" means, with respect to any
Payment Date, the excess, if any, of (x) the Class A-2 Interest Distributable
Amount for such Payment Date and any outstanding Class A-2 Interest Carryover
Shortfall from the immediately preceding Payment Date (together with interest on
such outstanding Class A-2 Interest Carryover Shortfall at the Class A-2 Rate,
to the extent lawful, calculated on the same basis as interest on the Class A-2
Notes for the same period), over (y) the amount of interest distributed to the
Class A-2 Noteholders on such Payment Date.
"CLASS A-2 INTEREST DISTRIBUTABLE AMOUNT" means the amount of interest
accrued during the related Interest Period (calculated on the basis of such
Interest Period being assumed to consist of 30 days and a year assumed to
consist of 360 days) on the Class A-2 Principal Balance as of the immediately
preceding Payment Date (after giving effect to payments of principal made on
such immediately preceding Payment Date) at the Class A-2 Rate or, in the case
of the first Payment Date, on the Class A-2 Initial Principal Balance.
"CLASS A-2 NOTE" means any of the 5.800% Asset Backed Notes, Class A-2,
issued under the Indenture.
"CLASS A-2 NOTEHOLDER" means the Person in whose name a Class A-2 Note
is registered in the Note Register.
"CLASS A-2 PRINCIPAL BALANCE" as of any date means the Class A-2
Initial Principal Balance less all amounts paid to the holders of Class A-2
Notes in respect of principal pursuant to Section 5.06 hereof.
"CLASS A-2 RATE" means 5.800% per annum.
"CLASS A-3 FINAL SCHEDULED PAYMENT DATE" means the Payment Date in
August 2004.
"CLASS A-3 INITIAL PRINCIPAL BALANCE" $334,093,000.00.
"CLASS A-3 INTEREST CARRYOVER SHORTFALL" means, with respect to any
Payment Date, the excess, if any, of (x) the Class A-3 Interest Distributable
Amount for such Payment Date and any outstanding Class A-3 Interest Carryover
Shortfall from the immediately preceding Payment Date(together with interest on
such outstanding Class A-3 Interest Carryover Shortfall at the Class A-3 Rate,
to the extent lawful, calculated on the same basis as interest on the Class A-3
Notes for the same period), over (y) the amount of interest distributed to the
Class A-3 Noteholders on such Payment Date.
"CLASS A-3 INTEREST DISTRIBUTABLE AMOUNT" means the amount of interest
accrued during the related Interest Period (calculated on the basis of such
Interest Period being assumed to consist of 30 days and a year assumed to
consist of 360 days) on the Class A-3 Principal Balance as of the immediately
preceding Payment Date (after giving effect to payments of principal made on
such immediately preceding Payment Date) at the Class A-3 Rate or, in the case
of the first Payment Date, on the Class A-3 Initial Principal Balance.
"CLASS A-3 NOTEHOLDER" means the Person in whose name a Class A-3 Note
is registered in the Note Register.
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"CLASS A-3 NOTE" means any of the 6.150% Asset Backed Notes, Class A-3,
issued under the Indenture.
"CLASS A-3 PRINCIPAL BALANCE" as of any date means the Class A-3
Initial Principal Balance less all amounts paid to the holders of Class A-3
Notes in respect of principal pursuant to Section 5.06 hereof.
"CLASS A-3 RATE" means 6.150% per annum.
"CLASS B FINAL SCHEDULED PAYMENT DATE" means the Payment Date in August
2004.
"CLASS B INITIAL PRINCIPAL BALANCE" $26,454,000.00.
"CLASS B INTEREST CARRYOVER SHORTFALL" means, with respect to any
Payment Date, the excess, if any, of (x) the Class B Interest Distributable
Amount for such Payment Date and any outstanding Class B Interest Carryover
Shortfall from the immediately preceding Payment Date (together with interest on
such outstanding Class B Interest Carryover Shortfall at the Class B Rate, to
the extent lawful, calculated on the same basis as interest on the Class B Notes
for the same period), over (y) the amount of interest distributed to the Class B
Noteholders on such Payment Date.
"CLASS B INTEREST DISTRIBUTABLE AMOUNT" means the amount of interest
accrued during the related Interest Period (calculated on the basis of such
Interest Period being assumed to consist of 30 days and a year assumed to
consist of 360 days) on the Class B Principal Balance as of the immediately
preceding Payment Date (after giving effect to payments of principal made on
such immediately preceding Payment Date) at the Class B Rate or, in the case of
the first Payment Date, on the Class B Initial Principal Balance.
"CLASS B NOTE" means any of the 6.300% Asset Backed Notes, Class B,
issued under the Indenture.
"CLASS B NOTEHOLDER" means the Person in whose name a Class B Note is
registered in the Note Register.
"CLASS B PRINCIPAL BALANCE" as of any date means the Class B Initial
Principal Balance less all amounts paid to the holders of Class B Notes in
respect of principal pursuant to Section 5.06 hereof.
"CLASS B RATE" means 6.300% per annum.
"CLASS C FINAL SCHEDULED PAYMENT DATE" means the Payment Date in August
2004.
"CLASS C INITIAL PRINCIPAL BALANCE" $14,429,000.00.
"CLASS C INTEREST CARRYOVER SHORTFALL" means, with respect to any
Payment Date, the excess, if any, of (x) the Class C Interest Distributable
Amount for such Payment Date and any outstanding Class C Interest Carryover
Shortfall from the immediately preceding Payment Date (together with interest on
such outstanding Class C Interest Carryover Shortfall at the Class C
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Rate, to the extent lawful, calculated on the same basis as interest on the
Class C Notes for the same period), over (y) the amount of interest distributed
to the Class C Noteholders on such Payment Date.
"CLASS C INTEREST DISTRIBUTABLE AMOUNT" means the amount of interest
accrued during the related Interest Period (calculated on the basis of such
Interest Period being assumed to consist of 30 days and a year assumed to
consist of 360 days) on the Class C Principal Balance as of the immediately
preceding Payment Date (after giving effect to payments of principal made on
such immediately preceding Payment Date) at the Class C Rate or, in the case of
the first Payment Date, on the Class C Initial Principal Balance.
"CLASS C NOTEHOLDER" means the Person in whose name a Class C Note is
registered in the Note Register.
"CLASS C NOTE" means any of the 6.700% Asset Backed Notes, Class C,
issued under the Indenture.
"CLASS C PRINCIPAL BALANCE" as of any date means the Class C Initial
Principal Balance less all amounts paid to the holders of Class C Notes in
respect of principal pursuant to Section 5.06 hereof.
"CLASS C RATE" means 6.700% per annum.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"CLOSING DATE" means July 22, 1999.
"CODE" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"COLLECTION ACCOUNT" means the account or accounts designated as such
and established and maintained pursuant to Section 5.01.
"COLLECTION PERIOD" means, with respect to any Payment Date, the
calendar month immediately preceding the month in which such Payment Date occurs
(or, in the case of the first Payment Date, the period of time since the Cutoff
Date through the end of the calendar month immediately preceding the month in
which such first Payment Date occurs).
"COMMISSION" means the Securities and Exchange Commission, and any
successor thereto.
"CURRENT RECEIVABLE" means each Receivable that is not a Defaulted
Receivable or a Liquidated Receivable.
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"CUTOFF DATE" means July 1, 1999.
"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" and "DEFINITIVE NOTES" shall have the
meanings ascribed thereto in the Trust Agreement and the Indenture,
respectively.
"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
(excluding Receivables as to which the Financed Vehicle has been liquidated
during that 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.
"DEPOSITOR" means the Seller in its capacity as Depositor under the
Trust Agreement.
"DETERMINATION DATE" means, with respect to any Payment Date, the
second Business Day preceding such Payment Date.
"DTC" means The Depository Trust Company, and its successors.
"ELIGIBLE DEPOSIT ACCOUNT" means either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States of America or any one of the states thereof or the District of
Columbia (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as any
of the securities of such depository institution shall have a credit rating from
each Rating Agency in one of its generic rating categories that signifies
investment grade.
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"ELIGIBLE INSTITUTION" means (a) the corporate trust department of the
Indenture Trustee or the Owner Trustee or (b) a depository institution organized
under the laws of the United States of America or any one of the states thereof
or the District of Columbia (or any domestic branch of a foreign bank), which
(i) has either (A) a long-term unsecured debt rating of "AA-" or better by
Standard & Poor's and "Aa3" or better by Moody's or (B) an account or accounts
in which funds will be held therein for 30 days or less which are maintained
with a depository institution or trust company, the short-term unsecured debt
obligations of which are rated "A-1" or better by Standard & Poor's or if not
rated by Standard & Poor's then otherwise approved by Standard & Poor's and
rated "P-1" or better by Moody's, or if not rated by Moody's then otherwise
approved by Moody's, and (ii) whose deposits are insured by the FDIC. If so
qualified, the Indenture Trustee or the Owner Trustee may be considered an
Eligible Institution for the purposes of clause (b) of this definition.
"ELIGIBLE INVESTMENTS" means, at any time, any one or more of the
following obligations and securities:
(a) 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;
(b) (i) general obligations of or obligations guaranteed by
FNMA, or (ii) 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;
(c) certificates of deposit issued by any depository
institution or trust company (including the Indenture 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;
(d) certificates of deposit, demand or time deposits of,
bankers' acceptances issued by, or federal funds sold by, any
depository institution or trust company (including the Indenture
Trustee) incorporated under the laws of the United States or any State
and subject to supervision and examination by federal and/or State
banking authorities and the deposits of which are fully insured by the
Federal Deposit Insurance Corporation, so long as at the time of such
investment or contractual commitment providing for such investment
either such depository institution or trust company is an Eligible
Institution (or if such investment will mature after more than one
month, the long-term, unsecured debt of the issuer has the highest
available rating from each Rating Agency) or as to which the Indenture
Trustee shall have received a letter from each Rating Agency to the
effect that such investment would not result in the qualification,
downgrading or withdrawal of the ratings then assigned to any Notes
issued by the Issuer;
(e) certificates of deposit issued by any bank, trust company,
savings bank or other savings institution that is an Eligible
Institution and is fully insured by the FDIC (or
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if such investment will mature after more than one month, the
long-term, unsecured debt of the issuer has the highest available
rating from each Rating Agency);
(f) repurchase obligations held by the Indenture Trustee that
are acceptable to the Indenture Trustee with respect to any security
described in clauses (a), (b) or (g) 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 (d) above (including the Indenture Trustee); PROVIDED,
HOWEVER, that repurchase obligations entered into with any particular
depository institution or trust company (including the Indenture
Trustee) will not be Eligible Investments to the extent that the
aggregate principal amount of such repurchase obligations with such
depository institution or trust company held by the Indenture Trustee
on behalf of the Noteholders or the Seller, as the case may be, shall
exceed 10% of either the Pool Balance or of the principal balance of
all the face amount of all Eligible Investments so held thereby;
(g) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States or
any State so long as at the time of such investment or contractual
commitment providing for such investment (i) the long-term, unsecured
debt of such corporation has the highest available rating from each
Rating Agency or (ii) the Indenture Trustee shall have received a
letter from each Rating Agency to the effect that such investment would
not result in the qualification, downgrading or withdrawal of the
ratings then assigned to any of the Notes;
(h) 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),
including any such fund for which the Indenture Trustee or an Affiliate
thereof serves as an investment advisor, administrator, shareholder
servicing agent and/or custodian or subcustodian, and notwithstanding
that (i) such Person charges and collects fees and expenses from such
funds for services rendered, (ii) such Person charges and collects fees
and expenses for services rendered pursuant to the Trust Agreement, the
Indenture or the Securities Account Control Agreement and (iii)
services performed for such funds and pursuant to any such agreement
may converge at any time. Each of the Seller and the Servicer hereby
specifically authorizes the Indenture Trustee, Owner Trustee,
Securities Intermediary or an Affiliate thereof to charge and collect
all fees and expenses from such funds for services rendered to such
funds, in addition to any fees and expenses such Person may charge and
collect for services rendered pursuant to any such Agreement; and
(i) 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 ratings then
assigned by such Rating Agency to any of the Notes; provided that each
of the foregoing investments shall mature no later than the day
preceding the Payment Date next succeeding such investment, and shall
be required to be held to such maturity.
None of the foregoing will be considered a Eligible Investment
if:
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(j) it constitutes a certificated security, bankers'
acceptance, commercial paper, negotiable certificate of deposit or
other obligation that constitutes "financial assets" within the meaning
of Section 8-102(a)(9)(c) of the UCC unless a security entitlement with
respect to such Eligible Investment has been created, in favor of the
Indenture Trustee or Owner Trustee, as appropriate, in accordance with
Section 8-501(b) of the UCC and the related securities intermediary has
agreed not to comply with entitlement orders of any secured party other
than the Indenture Trustee, Seller or Owner Trustee, as the case may
be; or
(k) it constitutes a book-entry security held through the
Federal Reserve System pursuant to federal book-entry regulations,
unless, in accordance with applicable law, (A) a book-entry
registration thereof is made to an appropriate book-entry account
maintained with a Federal Reserve Bank by the Indenture Trustee,
Securities Intermediary or Owner Trustee, as appropriate, or by a
custodian therefor, (B) a deposit advice or other written confirmation
of such book-entry registration is issued to such Person, (C) any such
custodian makes entries in its books and records identifying that such
book-entry security is held through the Federal Reserve System pursuant
to federal book-entry regulations and belongs to such trustee and
indicating that such custodian holds such Eligible Investment solely as
agent for the Indenture Trustee, Securities Intermediary or Owner
Trustee, as appropriate, (D) the Indenture Trustee, Securities
Intermediary or Owner Trustee, as appropriate, makes entries in its
books and records establishing that it holds such security solely in
such capacity, and (E) any additional or alternative procedures as may
hereafter become necessary to effect complete transfer of ownership
thereof to such trustee are satisfied, consistent with changes in
applicable law or regulations or the interpretation thereof.
Notwithstanding anything to the contrary contained in this
definition, no Eligible Investment may be purchased at a premium and no Eligible
Investment shall be an "interest only" instrument.
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 (excluding any "+" signs associated with such
rating), 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 by such Rating Agency to any of the Notes. Also for
purposes of this definition, any reference to a Rating Agency refers only to a
Rating Agency that has, at the request of TMCC, rated the Notes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EVENT OF DEFAULT" shall have the meaning specified in the Indenture.
"EXCESS PAYMENT" means, with respect to a Receivable and a Collection
Period, the amount, if any, by which the Actual Payment exceeds the sum of (i)
the Scheduled Payment, and (ii) any Overdue Payment.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
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"FDIC" means the Federal Deposit Insurance Corporation, and its
successors.
"FIRST PRIORITY PRINCIPAL DISTRIBUTION AMOUNT" means, with respect to
any Payment Date, an amount equal to the excess, if any, of (a) the Outstanding
Amount of the Class A Notes as of the preceding Payment Date (after giving
effect to any principal payments made on such preceding Payment Date) or Closing
Date, as the case may be, over (b) the Pool Balance as of the close of business
on the last day of the related Collection Period; provided, however, that the
First Priority Principal Distribution Amount shall not exceed the sum of the
Outstanding Amount of all the Notes and the Certificate Balance on such Payment
Date (prior to giving effect to any principal payments made on such Payment
Date); and provided further, that (i) the First Priority Principal Distribution
Amount on the Class A-1 Final Scheduled Payment Date will not be less than the
amount that is necessary to reduce the Outstanding Amount of the Class A-1 Notes
to zero; (ii) the First Priority Principal Distribution Amount on the Class A-2
Final Scheduled Payment Date will not be less than the amount that is necessary
to reduce the Outstanding Amount of the Class A-2 Notes to zero; and (iii) the
First Priority Principal Distribution Amount on the Class A-3 Final Scheduled
Payment Date will not be less than the amount that is necessary to reduce the
Outstanding Amount of the Class A-3 Notes to zero.
"FNMA" means the Federal National Mortgage Association, and its
successors.
"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.
"HOLDER" or "SECURITYHOLDER" means the registered holder of any
Certificate or Note as evidenced by the Certificate Register or Note Register
except that, solely for the purposes of giving certain consents, waivers,
requests or demands pursuant to the Trust Agreement or the Indenture, the
interest evidenced by any Certificate or Note registered in the name of TMCRC or
TMCC, or any Person actually known to a Trust Officer of the Owner Trustee or
the Indenture Trustee to be controlling, controlled by or under common control
with TMCRC or TMCC, 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.
"INDENTURE" means the Indenture dated as of July 1, 1999, between the
Issuer and the Indenture Trustee.
"INDENTURE TRUSTEE" means the Person acting as Indenture Trustee under
the Indenture, its successors in interest and any successor trustee under the
Indenture.
"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.
"INITIAL CERTIFICATE BALANCE" $586.54.
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"INSOLVENCY EVENT" means, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in an
involuntary case under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person's affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or (b)
the commencement by such Person of a voluntary case under any applicable federal
or state bankruptcy, insolvency or other similar law now or hereafter in effect,
or the consent by such Person to the entry of an order for relief in an
involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing.
"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.
"INTEREST PERIOD" with respect to any Payment Date and (i) the Class
A-1 Notes, means the period from, and including, the preceding Payment Date (or,
in the case of the initial Interest Period, from and including the Closing Date)
to, but excluding, such Payment Date; and (ii) in the case of each other Class
of Notes, means the period from, and including, the 15th day of the preceding
calendar month (or, in the case of the initial Interest Period, from and
including the Closing Date) to, but excluding, the 15th day of the month in
which such Payment Date occurs.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended.
"ISSUER" means Toyota Auto Receivables 1999-A Owner Trust.
"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 as to which
the Servicer has determined that 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 REMITTANCE CONDITIONS" means, collectively, (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 are acceptable
to the Rating Agencies and (iii) no Event of Default or Servicer Default shall
have occurred and be continuing (unless waived by the appropriate Noteholders).
"MOODY'S" means Moody's Investors Service, Inc., or its successor.
"NET LIQUIDATION PROCEEDS" means, with respect to a Defaulted
Receivable, Liquidation Proceeds less Liquidation Expenses.
"NONRECOVERABLE ADVANCE" means any Outstanding Advance as to which the
Servicer determines that any recovery from payments made on or with respect to
such Receivable is unlikely; provided that the Servicer cannot deem any
Outstanding Advance made at the option of the Servicer pursuant to Section 4.02
to be a Nonrecoverable Advance unless it delivers to the Indenture Trustee and
Owner Trustee an Independent Certificate to the effect that such Outstanding
Advance, when made, was reasonably likely to be reimbursed from collections in
respect of interest on the related Receivable representing interest accrued on
such Receivable at the related APR less the sum of the Class C Rate and the
Servicing Fee Rate.
"NOTE" means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note, a
Class B Note or a Class C Note.
"NOTE DEPOSITORY AGREEMENT" has the meaning assigned in the Indenture.
"NOTEHOLDER" means any Holder of a Note.
"NOTE OWNER" has the meaning assigned in the Indenture.
"NOTE POOL FACTOR" means, with respect to each Class of Notes as of the
close of business on any Payment Date, a seven-digit decimal figure equal to the
outstanding principal balance of such Class of Notes (after giving effect to any
reductions thereof to be made on such Payment Date) divided by the original
outstanding principal balance of such Class of Notes. The Note Pool Factor for
each Class of Notes will be 1.0000000 as of the Closing Date; thereafter, the
related Note Pool Factor will decline to reflect reductions in the outstanding
principal balance of such Class of Notes.
"NOTE REGISTER" means the register maintained by the Indenture Trustee
pursuant to the Indenture recording the name of each registered holder of a
Note.
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"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.
"OFFICERS' CERTIFICATE" means a certificate signed by the President,
any Vice President, the Chief Financial Officer, the Chief Accounting Officer,
the Treasurer or any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Issuer, the Seller or the Servicer, as the case may be.
"OPINION OF COUNSEL" means one or more written opinions of counsel who
may, except as otherwise provided herein, be an employee of or counsel to the
Issuer, the Seller or the Servicer, which counsel shall be acceptable to the
Indenture Trustee, the Owner Trustee or the Rating Agencies, as the case may be.
"OPTIONAL PURCHASE PRICE" means the Outstanding Amount plus all accrued
and unpaid interest on each Class of Notes (including, without duplication, any
Class A-1 Interest Carryover Shortfall, Class A-2 Interest Carryover Shortfall,
Class A-3 Interest Carryover Shortfall, Class B Interest Carryover Shortfall or
Class C interest Carryover Shortfall) through the Payment Date on which the
Owner Trust Estate is to be purchased by the Servicer, or successor to the
Servicer.
"OPTIONAL PURCHASE PERCENTAGE" means 10.00%.
"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 5.04(b) as applied to reimburse all unpaid Advances with
respect to such Receivable.
"OUTSTANDING AMOUNT" means the aggregate principal amount of all Notes,
or, if indicated by the context, all Notes of any Class, outstanding at the date
of determination.
"OVERDUE PAYMENT" means, with respect to any 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 and therefor
shall be applied first to reimburse the Servicer for Outstanding Advances made
with respect to such Receivable pursuant to Section 5.03(a).
"OWNER TRUST ESTATE" means all right, title and interest of the Trust
in and to the property and rights assigned to the Trust pursuant to Article II
of this Agreement, all funds on deposit from time to time in the accounts
created pursuant to Section 5.01 of the Sale and Servicing Agreement (excluding
any net investment income with respect to amounts held in such accounts) and all
other property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to this Agreement and the Administration
Agreement, and as assignee of the rights and Interests of the Depositor under
the Receivables Purchase Agreement.
"OWNER TRUSTEE" means the Person acting as Owner Trustee under the
Trust Agreement, its successors in interest and any successor owner trustee
under the Trust Agreement.
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"PAYAHEAD" on a Receivable that is a Precomputed Receivable means the
amount, as of the close of business on the last day of a Collection Period,
computed in accordance with Section 5.03 with respect to such Receivable.
"PAYAHEAD ACCOUNT" means the account or accounts designated as such and
established and maintained pursuant to Section 5.01.
"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.
"PAYMENT 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 August 16, 1999.
"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.
"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 Payment Date, means a seven-digit decimal
figure equal to the Pool Balance as of such Payment Date divided by the Original
Pool Balance.
"PRECOMPUTED ADVANCE" means an advance in respect of principal or
interest on a Precomputed Receivable in the amount determined as set forth in
Section 5.04(a).
"PRECOMPUTED RECEIVABLE" means any Actuarial Receivable or Rule of 78s
Receivable.
"PREPAYMENT" means (i) with respect to any Precomputed Receivable and
any Collection Period, any prepayment in full or Excess Payment which the
Servicer, in accordance with its customary servicing practices, will apply
towards the payment of Scheduled Payments due during or prior to such Collection
Period or (ii) with respect to any Simple Interest Receivable, any prepayment,
whether in part or in full, in respect of such Simple Interest Receivable.
"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. The Principal Balance of a Defaulted Receivable is zero.
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"PRINCIPAL DISTRIBUTION ACCOUNT" means the administrative subaccount
established within the Collection Account by the Indenture Trustee pursuant to
the Indenture and the Trust Agreement.
"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, 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 July 1, 1999, between the Seller and TMCC.
"RECORD DATE" means, with respect to the Notes of any Class or the
Certificates and each Payment Date, the calendar day immediately preceding such
Payment Date or, if Definitive Notes representing any Class of Notes or
Definitive Certificates representing the Certificates have been issued, the last
day of the month immediately preceding the month in which such Payment 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 payments and
distributions to any party under this Agreement, the Indenture and the Trust
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.
"RECOVERIES" means, with respect to any Receivable that becomes a
Liquidated Receivable, monies collected in respect thereof, from whatever
source, during any Collection Period following the Collection Period in which
such Receivable became a Liquidated Receivable, net of the sum of any amounts
expended by the Servicer for the account of the Obligor and any amounts required
by law to be remitted to the Obligor.
"REGULAR PRINCIPAL DISTRIBUTION AMOUNT" means, with respect to any
Payment Date, an amount not less than zero equal to (i) the excess, if any, of
(a) the sum of the Outstanding Amount of all of the Notes and the Certificate
Balance as of the preceding Payment Date (after giving effect to any principal
payments made on such preceding Payment Date) or Closing Date, as the case may
be, over (b) the Pool Balance as of the close of business on the last day of the
related Collection Period minus (ii) the sum of the First Priority Principal
Distribution Amount, if any, and the Second Priority Principal Distribution
Amount, if any, each with respect to such Payment Date; provided, however, that
the Regular Principal Distribution Amount shall not exceed the sum of the
Outstanding Amount of all the Notes and the Certificate Balance on such Payment
Date (after giving effect to any principal payments made
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on such Payment Date in respect of the First Priority Principal Distribution
Amount, if any, and the Second Priority Principal Distribution Amount, if any);
and provided further, that the Regular Principal Distribution Amount on the
Class C Final Scheduled Payment Date will not be less than the amount that is
necessary to cause the aggregate amount paid to Class C Noteholders in respect
of principal from the Closing Date to equal the Class C Initial Principal
Balance.
"RELEASED ADMINISTRATIVE AMOUNT" means, with respect to a Payment Date
and to an Administrative Receivable, the Deferred Prepayment, if any, for such
Administrative Receivable.
"RELEASED WARRANTY AMOUNT" means, with respect to a Payment Date and to
a Warranty Receivable, the Deferred Prepayment, if any, for such Warranty
Receivable.
"RELEVANT TRUSTEE" means (i) with respect to the control over or
appropriate designation denoting ownership or control over any property
comprising a portion of the Owner Trust Estate (as defined in the Trust
Agreement) that either is not conveyed or pledged to the Indenture Trustee for
the benefit of the Noteholders and Certificateholders pursuant to the Granting
Clause of the Indenture or that has been released from the lien of the
Indenture, the Owner Trustee, and (ii) with respect to any property comprising a
portion of the Trust Estate (as defined in the Indenture) that has not been
released from the lien of the Indenture, the Indenture Trustee; PROVIDED,
HOWEVER, that with respect to any property that is under the joint or separate
control of a co-trustee or separate trustee under the Trust Agreement or the
Indenture, respectively, "Relevant Trustee" shall refer to either or both of the
Owner Trustee and such co-trustee or separate trustee or to either or both of
the Indenture Trustee and such co-trustee or separate trustee, as the case may
be.
"RESERVE ACCOUNT" means the account designated as such, established and
maintained pursuant to Section 5.07.
"RESERVE ACCOUNT INITIAL DEPOSIT" means $7,214,824.
"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 schedule of receivables attached as
Schedule A to this Agreement, as it may be amended from time to time.
"SCHEDULED PAYMENT" means, with respect to any Payment Date and to a
Receivable, the payment set forth in such Receivable as due from the Obligor in
the related Collection Period; provided, however, that in the case of the first
Collection Period, the Scheduled Payment shall include all such payments due
from the Obligor on or after the Cutoff Date.
"SECOND PRIORITY PRINCIPAL DISTRIBUTION AMOUNT" means, with respect to
any Payment Date, an amount not less than zero equal to (i) the excess, if any,
of (a) the Outstanding Amount of the Class A and Class B Notes as of the
preceding Payment Date (after giving effect to any principal payments made on
such preceding Payment Date) or Closing Date, as the case may be, over (b) the
Pool Balance as of the close of business on the last day of the related
Collection
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Period minus (ii) the First Priority Principal Distribution Amount, if any, with
respect to such Payment Date; provided, however, that the Second Priority
Principal Distribution Amount shall not exceed the sum of the Outstanding Amount
of all of the Notes and the Certificate Balance on such Payment Date (after
giving effect to any principal payments made on such Payment Date in respect of
the First Priority Principal Distribution Amount, if any); and provided further,
that the Second Priority Principal Distribution Amount on the Class B Final
Scheduled Payment Date will not be less than the amount that is necessary to
cause the aggregate amount paid to Class B Noteholders in respect of principal
from the Closing Date to equal the Class B Initial Principal Balance.
"SECURITIES ACCOUNT CONTROL AGREEMENT" means the Securities Account
Control Agreement dated July 1, 1999, among the Seller, U.S. Bank National
Association, as Securities Intermediary thereunder, and U.S. Bank National
Association, as Indenture Trustee, pursuant to which the Reserve Fund will be
established and maintained.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITYHOLDER" see the definition of "Holder."
"SELLER" means TMCRC, and its successors in interest to the extent
permitted hereunder.
"SERVICER" means TMCC, as the servicer of the Receivables, and each
successor to TMCC (in the same capacity) pursuant to Section 7.03 or 8.02.
"SERVICER'S CERTIFICATE" means an Officers' Certificate of the Servicer
delivered pursuant to Section 4.10, substantially in the form attached hereto as
Exhibit A.
"SERVICER DEFAULT" means an event specified in Section 8.01.
"SERVICING FEE RATE" means 1.00% per annum.
"SIMPLE INTEREST ADVANCE" means an advance in respect of interest on
any Simple Interest Receivable in the amount determined as set forth in Section
5.04(a).
"SIMPLE INTEREST METHOD" means the method of allocating a fixed level
payment to principal and interest, pursuant to which the portion of such payment
that is allocated to interest is equal to the product of the fixed rate of
interest multiplied by the unpaid principal balance multiplied by the period of
time elapsed since the preceding payment of interest was made and the remainder
of such payment is allocable to principal.
"SIMPLE INTEREST RECEIVABLE" means any Receivable which provides for
the allocation of payments according to the simple interest method.
"SPECIFIED RESERVE ACCOUNT BALANCE" means with respect to any Payment
Date, an amount equal to $7,214,824, except that, if on any Payment 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% or (iii) any payment of accrued
interest on a Class B or Class C Note is not paid on the Payment Date on
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which it is due, and such default remains uncured for five or more days (but
this clause (iii) will cease to be operative on the date on which such default
is cured), then the Specified Reserve Account Balance for such Payment Date will
be an amount equal to the greater of (a) $7,214,824 or (b) 5.50% of the sum of
the Outstanding Amount and the Certificate Balance (in each case, after giving
effect to payments of principal to be made on such Payment Date); PROVIDED,
HOWEVER, that the Specified Reserve Account Balance shall in no event be greater
than the sum of the Outstanding Amount and the Certificate Balance as of such
Payment Date (in each case, after giving effect to payments of principal on such
Payment Date).
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a
Division of the McGraw-Hill Companies, and its successors.
"SUCCESSOR SERVICER" means any entity appointed as a successor to the
Servicer pursuant to Section 8.02.
"SUPPLEMENTAL SERVICING FEE" means, with respect to any Payment 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.
"TMCRC" means Toyota Motor Credit Receivables Corporation, a California
corporation, or its successors.
"TOTAL SERVICING FEE" means the sum of the Basic Servicing Fee and the
Supplemental Servicing Fee.
"TRUST" means the Issuer.
"TRUST AGREEMENT" means the Amended and Restated Trust Agreement dated
as of July 1, 1999, among the Seller, the Owner Trustee and the Delaware
Trustee.
"TRUST ESTATE" means all money, instruments, rights and other property
that are subject or intended to be subject to the lien and security interest of
this Indenture for the benefit of the Noteholders (including, without
limitation, all property and interests granted to the Indenture Trustee pursuant
to the granting clause of the Indenture), including all proceeds thereof.
"TRUST OFFICER" means, in the case of the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Secretary, Assistant Secretary or
any other officer of the Indenture 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 the
particular subject and, with respect to the Owner Trustee, any officer in the
Corporate Trust Administration Department of the Owner Trustee with direct
responsibility for the administration of the Trust Agreement and the Basic
Documents on behalf of the Owner Trustee.
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"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
"UNITED STATES" means the United States of America.
"WARRANTY PURCHASE PAYMENT" means, with respect to a Payment Date and
to (1) a Warranty Receivable which is a Precomputed Receivable repurchased by
the Seller as of the close of business on the last day of the related Collection
Period, (a) the sum of (i) all Scheduled Payments on such Receivable due after
the last day of such Collection Period, (ii) all past due Scheduled Payments for
which an Advance has not been made, (iii) an amount equal to any reimbursement
of Outstanding Advances made pursuant to Section 5.04(b) with respect to such
Receivable and (iv) an amount equal to all other Outstanding Advances made
pursuant to Section 5.04(c) with respect to such Receivable, minus (b) the sum
of (i) any Rebate (except to the extent specified in Section 4.03) and (ii) any
other proceeds in respect of such Receivable previously received (to the extent
applied to reduce the Principal Balance of such Receivable on such Payment
Date), and (2) a Warranty Receivable which is a Simple Interest Receivable
repurchased by the Seller as of the close of business on the last day of the
related Collection Period, the sum of (a) the unpaid principal balance owed by
the Obligor in respect of such Receivable plus (b) interest on such unpaid
principal balance at a rate equal to the related APR to the last day in the
related Collection Period.
"WARRANTY RECEIVABLE" means a Receivable which the Seller is required
to repurchase pursuant to Section 4.08.
SECTION 1.02 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."
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01 CONVEYANCE OF RECEIVABLES. (a) Upon the execution of this Agreement
by the parties hereto, the Seller, pursuant to the mutually agreed upon terms
contained in this Agreement, shall sell, transfer, assign and otherwise convey
to the Owner Trustee on behalf of the Issuer, 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. Concurrently therewith and in exchange therefor, the Issuer shall
deliver to, or to the order of, the Seller the Notes and the Certificates.
(b) In consideration of the foregoing and other good and valuable
consideration to be delivered to the Seller hereunder, on behalf of the Issuer,
the Seller does hereby sell, transfer,
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assign and otherwise convey to the Owner Trustee on behalf of the Issuer, 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 3.02 or the purchase of Receivables by the
Servicer pursuant to Section 4.08 or 9.01) on or after the Cutoff Date;
(ii) the interest of the Seller in the security interests in
the Financed Vehicles granted by the Obligors pursuant to the
Receivables and any accessions thereto;
(iii) the interest of the Seller in any proceeds of any
physical damage insurance policies covering Financed Vehicles and in
any proceeds of any credit life or credit disability insurance policies
relating to the Receivables or the Obligors;
(iv) the interest of the Seller in any Dealer Recourse;
(v) the right of the Seller to realize upon any property
(including the right to receive future Liquidation Proceeds) that shall
have secured a Receivable and have been repossessed pursuant to the
terms thereof;
(vi) the rights and interests of the Seller under the
Receivables Purchase Agreement;
(vii) all other assets comprising the Owner Trust Estate; 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 Issuer 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 Owner Trustee on
behalf of the Issuer 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 Owner Trustee on behalf of the Issuer,
and the Owner Trustee on behalf of the Issuer 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 Owner Trustee on behalf of the Issuer under this Agreement,
the Servicer's master computer records (including
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any back-up archives) that refer to any Receivable indicate clearly the interest
of the Issuer in such Receivables and that the Receivable is owned by the Issuer
and controlled by the Owner Trustee on behalf of the Issuer. Indication of the
Issuer'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) Ownership and control of the receivables, as between the Issuer,
the Owner Trustee and the Indenture Trustee (on behalf of the Noteholders and
Certificateholders) shall be governed by the Indenture.
SECTION 2.02 CUSTODY OF RECEIVABLES FILES. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Owner Trustee
on behalf of the Issuer, upon the execution and delivery of this Agreement,
appoints the Servicer, and the Servicer accepts such appointment, to act as the
agent of the Issuer as custodian of the following documents or instruments which
are hereby constructively delivered to the Owner 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 OWNER TRUSTEE. The Owner Trustee hereby
acknowledges its acceptance, on behalf of the Issuer, 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 Owner Trustee holds and shall hold such right,
title and interest, upon the terms and conditions set forth in this Agreement.
ARTICLE III
THE RECEIVABLES
SECTION 3.01 REPRESENTATIONS AND WARRANTIES OF THE SELLER WITH RESPECT
TO THE RECEIVABLES. The Seller makes the following representations and
warranties as to the Receivables on which the Issuer is deemed to have relied in
acquiring the Receivables. Such
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representations and warranties speak as of the execution and delivery of this
Agreement and as of the Closing Date, but shall survive the sale, transfer and
assignment of the Receivables to the Issuer, and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(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
Owner Trustee on behalf of the Issuer hereby, (iii) shall, except as
otherwise provided in this Agreement, provide for monthly payments that
fully amortize the Amount Financed by maturity and provide for a
finance charge or yield interest at its APR, in either case calculated
based on the Rule of 78s, the simple interest method or the actuarial
method, (iv) shall contain customary and enforceable provisions, such
that the rights and remedies of the holder thereof shall be adequate
for realization against the collateral of the benefits of the security
and (v) shall provide for, in the event that such Receivable is
prepaid, a prepayment that fully pays the Principal Balance and
includes accrued but unpaid interest.
(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 Securityholders 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. To the knowledge of the Seller, 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, except with respect to
applicable Florida documentary stamp taxes as to which the effect of
noncompliance will not have a material adverse effect on such
Receivable.
(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
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bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such enforceability
shall be considered in a proceeding in equity or at law.
(e) NO BANKRUPT OBLIGORS. None of the Receivables shall be
due, to the best knowledge of the Seller, from any Obligor who is
presently the subject of a bankruptcy proceeding or is bankrupt or is
insolvent.
(f) NO GOVERNMENT OBLIGORS. None of the Receivables shall be
due from the United States or any state, or from any agency, department
or instrumentality of the United States or any state or local
government.
(g) EMPLOYEE OBLIGORS. None of the Receivables shall be due
from any employee of the Seller, TMCC or any of their respective
affiliates.
(h) SECURITY INTEREST IN FINANCED VEHICLES. Immediately prior
to the sale, assignment and transfer thereof, each Receivable shall be
secured by a validly perfected first priority security interest in the
related Financed Vehicle in favor of TMCC as secured party or all
necessary and appropriate action with respect to such Receivable shall
have been taken to perfect a first priority security interest in such
Financed Vehicle in favor of TMCC as secured party.
(i) RECEIVABLES IN FORCE. No Receivable shall have been
satisfied, subordinated or rescinded, nor shall any Financed Vehicle
have been released in whole or in part from the lien granted by the
related Receivable.
(j) NO WAIVERS. No provision of a Receivable shall have been
waived in such a manner that such Receivable fails to meet all of the
other representations and warranties made by the Seller herein with
respect thereto.
(k) NO AMENDMENTS. No Receivable shall have been amended or
modified in such a manner that the total number of Scheduled Payments
has been increased or that the related Amount Financed has been
increased or that such Receivable fails to meet all of the other
representations and warranties made by the Seller herein with respect
thereto.
(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 as of the date of this Agreement,
including liens for work, labor or materials relating to a Financed
Vehicle, that shall be liens prior to, or equal or coordinate with, the
security interest in such Financed Vehicle granted by the related
Receivable, which Liens shall not have been released or satisfied as of
the Closing Date.
(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
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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. The terms of each Receivable require the
Obligor to obtain and maintain physical damage insurance covering the
related Financed Vehicle in accordance with TMCC's normal requirements.
The terms of each Receivable allow, but do not require TMCC to (and
TMCC, in accordance with its current normal servicing procedures, does
not) obtain any such coverage on behalf of the Obligor.
(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 Issuer 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 Issuer, 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 Issuer shall
have good and marketable title to each Receivable, free and clear of
all Liens and rights of others; and the transfer and assignment herein
contemplated has been perfected under the UCC.
(q) LAWFUL ASSIGNMENT. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable under
this Agreement or pursuant to a transfer of the related certificate of
title shall be unlawful, void or voidable.
(r) ALL FILINGS MADE. As of the Closing Date, 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 Owner
Trustee and to give the Owner Trustee on behalf of the Issuer 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) ADDITIONAL REPRESENTATIONS AND WARRANTIES. (i) 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; (ii)
each Receivable provides for the payment of a finance charge based on
an APR ranging from 8% to 15%; (iii) each Receivable shall have had an
original principal
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balance of not less than $1,090.01 and not more than $50,000 and, as of
the Cutoff Date, an unpaid principal balance of not less than $250 nor
more than $50,000; (iv) no Receivable was originated under a special
financing program; (v) no Receivable shall have a Scheduled Payment
that is more than 30 days past due as of the Cutoff Date; (vi) no
Financed Vehicle was subject to force-placed insurance as of the Cutoff
Date; (vii) there is no Receivable as to which payments ahead of 6 or
more Scheduled Payments have been received from or on behalf of the
related Obligor; and (viii) each Receivable is being serviced by Toyota
Motor Credit Corporation.
(v) 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 Owner Trustee and
the Indenture Trustee as provided in Section 3.03(b).
SECTION 3.02 REPURCHASE UPON BREACH. The Seller, the Servicer or the
Owner Trustee, as the case may be, shall inform the other parties to this
Agreement and the Indenture Trustee promptly, in writing, upon the discovery of
any breach of the Seller's representations and warranties made pursuant to
Section 3.01 or 6.01 that materially and adversely affects the interests of the
Issuer in any Receivable. 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. Notwithstanding the foregoing, the
obligation of the Seller to repurchase a Receivable shall not be conditioned on
the performance by TMCC of its obligation to repurchase such Receivable from the
Seller pursuant to the Receivables Purchase Agreement. 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 Payment Date, the Seller
shall remit the Warranty Purchase Payment of such Receivable to the Collection
Account in the manner specified in Section 5.05 and shall be entitled to receive
the Released Warranty Amount. The sole remedy of the Owner Trustee, the Issuer,
the Indenture Trustee (by operation of the assignment of the Owner Trustee's
rights hereunder pursuant to the Indenture) or any Securityholder with respect
to a breach of the Seller's representations and warranties pursuant to this
Agreement shall be to require the Seller to repurchase the related Receivable
pursuant to this Section and to enforce TMCC's obligation to the Seller to
repurchase such Receivables pursuant to the Receivables Purchase Agreement. The
Owner 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. In connection with such repurchase, the Owner Trustee
and Indenture Trustee shall take all steps necessary to effect a transfer of
such Receivable as set forth in Section 9.01(d).
SECTION 3.03 DUTIES OF SERVICER AS CUSTODIAN.
(a) SAFEKEEPING. The Servicer shall hold the Receivable Files as
custodian for the benefit of the Issuer and maintain such accurate and complete
accounts, records and computer
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systems pertaining to each Receivable File as shall enable the Issuer 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 the
Servicer exercises with respect to the receivable files relating to comparable
automotive receivables that the Servicer services for itself or others. The
Servicer shall promptly report to the Issuer and the Indenture Trustee any
failure on its part to hold the Receivable Files and maintain its accounts,
records and computer systems as herein provided and shall promptly take
appropriate action to remedy any such failure. Nothing herein shall be deemed to
require an initial review or any periodic review by the Issuer, the Owner
Trustee or the Indenture Trustee of the Receivable Files.
(b) MAINTENANCE OF AND ACCESS TO RECORDS. The Servicer shall maintain
each Receivable File at one of its offices specified in Schedule B or at such
other office as shall be specified to the Issuer and the Indenture Trustee by
written notice not later than 90 days after any change in location. The Servicer
shall make available to the Issuer and the Indenture Trustee or their respective
duly authorized representatives, attorneys or auditors a list of locations of
the Receivable Files and the related accounts, records and computer systems
maintained by the Servicer at such times during normal business hours as the
Issuer or the Indenture Trustee shall instruct with reasonable advance notice.
(c) RELEASE OF DOCUMENTS. Upon instruction from the Indenture Trustee,
the Servicer shall release any Receivable File to the Indenture Trustee, the
Indenture Trustee's agent or the Indenture Trustee's designee, as the case may
be, at such place or places as the Indenture Trustee may designate, as soon as
practicable.
SECTION 3.04 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 Trust Officer of the Owner
Trustee or the Indenture Trustee. A certified copy of a bylaw or of a resolution
of the board of directors of the Owner Trustee or of the Indenture Trustee shall
constitute conclusive evidence of the authority of such Trust Officer to act,
and shall be considered conclusive evidence of the authority of such Trust
Officer to act until receipt by the Servicer of written notice to the contrary
given by the Owner Trustee or Indenture Trustee, as the case may be.
SECTION 3.05 CUSTODIAN'S INDEMNIFICATION. The Servicer as custodian
shall indemnify the Issuer, the Owner Trustee and the Indenture Trustee and each
of their respective officers, directors, employees and agents for any and all
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses of any kind whatsoever that may be imposed on, incurred by or asserted
against any of them as the result of any improper act or omission in any way
relating to the maintenance and custody by the Servicer as custodian of the
Receivable Files; PROVIDED, HOWEVER, that the Servicer shall not be liable to
the Owner Trustee for any portion of any such amount resulting from the willful
misfeasance, bad faith or negligence of the Owner Trustee and the Servicer shall
not be liable to the Indenture Trustee for any portion of any such amount
resulting from the willful misfeasance, bad faith or negligence of the Indenture
Trustee or Owner Trustee.
SECTION 3.06 EFFECTIVE PERIOD AND TERMINATION. The Servicer's
appointment as custodian shall become effective as of the date hereof, and shall
continue in full force and effect
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until terminated pursuant to this Section. If TMCC shall resign as Servicer in
accordance with the provisions of this Agreement or if all of the rights and
obligations of any Servicer shall have been terminated under Section 8.01, the
appointment of TMCC (as Servicer) as custodian shall be terminated hereunder
without further action by the Indenture Trustee, Owner Trustee, Noteholders or
Certificateholders. The Indenture Trustee or, with the consent of the Indenture
Trustee, the Owner Trustee may terminate the Servicer's appointment as
custodian, with cause, at any time upon written notification to the Servicer,
and without cause upon 30 days' prior written notification to the Servicer. The
Owner Trustee, Indenture Trustee or Noteholders may terminate the Servicer as
custodian hereunder in the same manner as the Owner Trustee, Indenture Trustee
or Noteholders may terminate the rights and obligations of the Servicer under
Section 8.01. As soon as practicable after any termination of such appointment,
the Servicer shall deliver the Receivable Files to the Relevant Trustee or the
agent thereof at such place or places as the Relevant Trustee may reasonably
designate.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.01 DUTIES OF SERVICER. The Servicer, for the benefit of the
Issuer and the Securityholders (to the extent provided herein), shall manage,
service, administer and make collections on the Receivables with reasonable
care, using that degree of skill and attention that the Servicer exercises with
respect to comparable automotive receivables that it services for itself or
others. The Servicer's duties shall include collection 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, accounting
for collections, furnishing monthly and annual statements to the Owner Trustee
and the Indenture Trustee with respect to payments and distributions and making
Advances and performing the other duties specified herein. The Servicer shall
follow its customary standards, policies and procedures as in effect from time
to time and shall have full power and authority, acting alone, to do any and all
things in connection with such managing, servicing, administration and
collection that it may deem necessary or desirable. Nothing in the foregoing or
in any other section of this Agreement shall be construed to prevent the
Servicer from implementing new programs, whether on an intermediate, pilot or
permanent basis, or on a regional or nationwide basis, or from modifying its
standards, policies and procedures as long as, in each case, the Servicer does
or would implement such programs or modify its standards, policies and
procedures in respect of comparable assets serviced for itself in the ordinary
course of business.
Without limiting the generality of the foregoing, the Servicer is
authorized and empowered to execute and deliver, on behalf of itself, the
Issuer, the Owner Trustee, the Indenture Trustee, the Securityholders or any of
them, any and all instruments of satisfaction or cancellation, or partial or
full release or discharge, and all other comparable instruments, with respect to
such Receivables and the Financed Vehicles. The Servicer is hereby authorized to
communicate with Obligors in the ordinary course of its servicing of the
Receivables and Financed Vehicles in its own name. The Servicer is hereby
authorized to commence, in its own name or in the name of the Issuer, a legal
proceeding to enforce a Defaulted Receivable or to
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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 shall commence or participate in a legal
proceeding to enforce a Receivable, the Issuer shall thereupon be deemed to have
automatically assigned to the Servicer, 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 Issuer hereby with respect to such
Receivable for purposes of commencing or participating in any such proceeding as
a party or claimant, and the Servicer is authorized and empowered by the Owner
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 ground that it shall not be a real party in interest or a holder entitled to
enforce such Receivable, the Owner Trustee on behalf of the Issuer shall, at the
Servicer's expense and direction, take steps to enforce such Receivable,
including bringing suit in its name or the name of the Owner Trustee, the
Indenture Trustee, the Certificateholders and/or the Noteholders. The Owner
Trustee shall furnish the Servicer with any powers of attorney and other
documents and take any other steps which the Servicer may deem necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement.
SECTION 4.02 COLLECTION AND ALLOCATION 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 automotive 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 Owner Trustee, Indenture
Trustee or any Securityholder; provided, however, that if, as a result of any
change in the related APR or the Amount Financed, any increase in the total
number of Scheduled Payments or any extension of payments such that the
Receivable will be outstanding later than the Class C Final Scheduled Payment
Date 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 4.08 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 to release the security interest in the related Financed Vehicle or
constitute a cancellation of such Receivable and the creation of a new
automobile or light duty truck receivable, the Servicer shall purchase such
Receivable pursuant to Section 4.08, and the receivable created shall not be
included as an asset of the Issuer. 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 4.03 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
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servicing procedure is to credit a greater Rebate, the Servicer, as part of its
servicing duties, shall remit such difference by deposit into the Collection
Account pursuant to Section 5.05.
SECTION 4.04 REALIZATION UPON RECEIVABLES. On behalf of the Issuer, 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 Relevant 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 to realize upon such a Receivable. The
Servicer shall be entitled to recover its 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 5.02. 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 4.05 PHYSICAL DAMAGE INSURANCE. The Servicer shall, in
accordance with its customary servicing procedures, require that each Obligor
shall have delivered proof that it has obtained physical damage insurance
covering the related Financed Vehicle at the date of origination of the related
Receivable, but shall not obtain any such coverage on behalf of any Obligor.
SECTION 4.06 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 Issuer hereby authorizes the Servicer to take such steps as are necessary to
again perfect such security interest on behalf of the Issuer and the Indenture
Trustee in the event of the relocation of a Financed Vehicle or for any other
reason. In the event that the assignment of a Receivable to the Issuer is
insufficient, without a notation on the related Financed Vehicle's certificate
of title, to grant to the Issuer a first priority perfected security interest in
the related Financed Vehicle, the Servicer hereby agrees to serve as the agent
of the Issuer for the purpose of perfecting the security interest of the Issuer
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 Issuer.
SECTION 4.07 COVENANTS OF SERVICER. The Servicer hereby makes the
following covenants to the Issuer on which the Issuer has relied in purchasing
the Receivables and issuing the Certificates, and on which the Indenture Trustee
will rely in undertaking the trusts set forth in the Indenture and issuing the
Notes.
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(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 Securityholders in the Receivables.
(c) NO AMENDMENTS. Except as provided in Section 4.02, 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 extend the maturity of such Receivable beyond the Class
C Final Scheduled Payment Date.
SECTION 4.08 PURCHASE OF RECEIVABLES UPON BREACH. The Servicer or the
Owner Trustee shall inform the other party and the Indenture Trustee promptly,
in writing, upon the actual knowledge of one of its Trust Officers of any breach
pursuant to Section 4.06 or 4.07 that materially and adversely affects the
interests of the Issuer in a Receivable, or if an extension, rescheduling or
modification of a Receivable is made by the Servicer as described in Section
4.02 and the Servicer does not elect to make Advances to cover resulting
reductions in interest accruals as provided in Section 4.02, the party
discovering such event 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 event (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 event shall have been cured in all material respects or such
modification has been rescinded or the Servicer has elected to and does make all
required Advances, purchase from the Issuer such Receivable. In consideration of
the purchase of any such Receivable, on the Business Day immediately preceding
the related Payment Date the Servicer shall remit the Administrative Purchase
Payment to the Collection Account in the manner specified in Section 5.05, 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 Owner Trustee, the Issuer, the Indenture Trustee or any
Securityholders against the Servicer with respect to a breach pursuant to
Section 4.02, 4.06 or 4.07 shall be to require the Servicer to purchase the
related Receivables pursuant to this Section, except as otherwise provided in
Section 7.02. The Owner 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
7.02. In connection with such repurchase, the Owner Trustee and Indenture
Trustee shall take all steps necessary to effect a transfer of such Receivable
to the Servicer as set forth in Section 9.01(d).
SECTION 4.09 SERVICING FEE AND EXPENSES. As compensation for the
performance of its obligations hereunder, the Servicer shall be entitled to
receive on each Payment Date, out of Available Collections, 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 Owner Trustee, the Delaware Co-Trustee,
the Administrator and the
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independent accountants, taxes imposed on the Servicer, expenses incurred by the
Servicer in connection with its preparation of reports hereunder and all other
fees and expenses not expressly stated under this Agreement to be for the
account of the Certificateholders).
SECTION 4.10 SERVICER'S CERTIFICATE. On or before each Determination
Date, the Servicer shall deliver to the Owner Trustee, each Paying Agent, the
Indenture Trustee and the Seller, with a copy to each Rating Agency, a
Servicer's Certificate substantially in the form of Exhibit A hereto, containing
the information necessary to make the payments to be made on the related Payment
Date and the information necessary for the Owner Trustee and the Indenture
Trustee to send statements to the Securityholders pursuant to the Trust
Agreement or Indenture, as the case may be. The Servicer shall also specify
therein the identity of any Receivable that the Servicer or the Seller became
obligated to repurchase or that the Servicer has determined to be a Defaulted
Receivable during the related 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 last day of such
Collection Period shall be identified by the related Obligor's account number
(as specified in the Schedule of Receivables).
SECTION 4.11 ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF DEFAULT. (a)
Within 120 days after September 30 of each calendar year (commencing with the
fiscal year ended September 30, 1999), the Servicer shall deliver an Officer's
Certificate to the Owner Trustee and the Indenture Trustee to the effect that a
review of the activities of the Servicer during the prior fiscal year (or since
the Closing Date in the case of the first such Officer's Certificate) has been
made under the supervision of the officer executing such Officer's Certificate
with a view to determining whether during such period the Servicer has performed
and observed all of its obligations under this Agreement, and either (i) stating
that, to the best of his or her knowledge, no default by the Servicer under this
Agreement has occurred and is continuing, or (ii) if such a default has occurred
and is continuing, specifying such default and the nature and status thereof.
(b) The Servicer shall deliver to the Owner Trustee, the Indenture
Trustee and the Rating Agencies, promptly after having obtained knowledge
thereof, but in no event later than five Business Days thereafter, written
notice in an Officer's Certificate of any event which with the giving of notice
or lapse of time, or both, would become a Servicer Default under Section 8.01(a)
or (b).
SECTION 4.12 ANNUAL ACCOUNTANTS' REPORT. Within 120 days after
September 30 of each fiscal year for the Servicer (commencing with the year
ended September 30, 1999), the Servicer shall deliver to the Owner Trustee and
the Indenture Trustee a report prepared by the Independent Accountants of the
Servicer 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
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the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
In the event such Independent Accountants require the Owner
Trustee or Indenture Trustee to agree to the procedures performed by such firm,
the Servicer shall direct the Owner Trustee or Indenture Trustee in writing to
so agree; it being understood and agreed that the Owner Trustee or Indenture
Trustee will deliver such letter of agreement in conclusive reliance upon the
direction of the Servicer, and the Owner Trustee and Indenture Trustee need 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.
SECTION 4.13 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
RECEIVABLES. The Servicer shall provide to the Owner Trustee and Indenture
Trustee reasonable access to the documentation regarding the Receivables as
provided in Section 3.03(b). The Servicer will provide such access to any
Securityholder only in such cases where the Certificateholders or Noteholders
shall be 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 the 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 to information as a result of such obligation shall not
constitute a breach of this Section.
SECTION 4.14 APPOINTMENT OF SUBSERVICER. The Servicer may at any time
appoint a subservicer to perform all or any portion of its obligations as
Servicer hereunder if each Rating Agency has received reasonable advance notice
of the Servicer's intention to do so and has not notified the Servicer that such
an appointment would or might result in the qualification, reduction or
withdrawal of a rating then assigned by such rating Agency to any Class of
Notes; PROVIDED, HOWEVER, that the Servicer shall remain obligated and be liable
to the Issuer, the Owner Trustee, the Indenture Trustee, the Certificateholders
and the Noteholders for the servicing and administering of the Receivables in
accordance with the provisions hereof without diminution of such obligation and
liability by virtue of the appointment of such subservicer and to the same
extent and under the same terms and conditions as if the Servicer alone were
servicing and administering the Receivables. The fees and expenses of the
subservicer shall be as agreed between the Servicer and its subservicer from
time to time, and none of the Issuer, the Owner Trustee, the Indenture Trustee,
the Certificateholders or the Noteholders shall have any responsibility
therefor.
SECTION 4.15 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 Issuer, the Owner
Trustee and the Indenture Trustee, on or before the Payment 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 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.
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SECTION 4.16 REPORTS TO SECURITYHOLDERS AND RATING AGENCIES. The Owner
Trustee shall send a copy of each Officer's Certificate delivered pursuant to
Section 4.11 and each report of independent accountants delivered pursuant to
Section 4.12 to the Rating Agencies within five days of its receipt thereof from
the Servicer or accountants. A copy of any such Officer's Certificate or
accountants report may be obtained by any Certificateholder, Noteholder or Note
Owner by a request in writing to the Owner Trustee addressed as set forth in
Section 10.03 hereof. Upon the telephone request of the Owner Trustee, the
Indenture Trustee will promptly furnish the Owner Trustee a list of Noteholders
as of the date specified by the Owner Trustee.
ARTICLE V
ACCOUNTS; PAYMENTS AND DISTRIBUTIONS;
STATEMENTS TO SECURITYHOLDERS
SECTION 5.01 ESTABLISHMENT OF COLLECTION ACCOUNT AND PAYAHEAD ACCOUNT.
(a) The Servicer on behalf of the Owner Trustee and the Indenture
Trustee, shall establish the Collection Account and Payahead Account in the name
of the Indenture Trustee for the benefit of the Securityholders. Except as
otherwise provided in this Agreement, each such account shall be an account
initially established with the Indenture Trustee and maintained with the
Indenture Trustee so long as (i) the commercial paper or other short-term
unsecured debt obligations of the Indenture Trustee are rated "P-1" or better by
Moody's, or if not rated by Moody's then otherwise approved by Moody's, and
"A-1" or better by Standard & Poor's if rated by Standard & Poor's, or if not
rated by Standard & Poor's then otherwise approved by Standard & Poor's, in each
case at the time of any deposit therein, or (ii) such account is a segregated
trust account located in the corporate trust department of the Indenture 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 Securityholders, and the Indenture Trustee has a long-term deposit rating
from Moody's (so long as Moody's is a Rating Agency) of at least "A1" (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 Indenture Trustee no longer meets either of the foregoing requirements,
then the Servicer shall, with the Indenture Trustee's assistance as necessary,
cause the Collection Account and Payahead Account 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 Collection Account and Payahead Account meets the requirements
of Section 5.01(a)(i) or (a)(ii), all amounts held in these 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. Earnings on investment of funds in these
accounts (net of losses and investment expenses) shall be paid to the Servicer
on each Payment Date as servicing compensation, 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 U.S. Bank National Association is the Relevant
Trustee, the Accounts shall be maintained with U.S. Bank National Association as
described in clause (ii) of the second sentence of Section 5.01(a). In the event
that the long-term debt rating of the Relevant Trustee does not satisfy clause
(ii) of the second sentence of Section 5.01(a), the Servicer shall, with the
assistance of the Relevant Trustee as necessary, cause the Collection Account
and the Payahead Account to be moved to an institution or an account otherwise
satisfying the requirements of Section 5.01(a).
(d) Subject to the foregoing, the Servicer, on behalf of the Owner
Trustee and the Indenture Trustee, shall establish and maintain as the
Collection Account an Eligible Deposit Account in the name of and under the
exclusive control of the Indenture Trustee, bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Noteholders and the Certificateholders. On the Closing Date, the Owner Trustee
will transfer, or cause to be transferred, to such Collection Account all funds
or investments on deposit in the Collection Account established pursuant to the
Trust Agreement for the benefit of the Certificateholders, and all of the
proceeds thereof, and will transfer all of its right, title and interest in the
Collection Account, all funds or investments held or to be held therein and all
proceeds thereof, whether or not on behalf of the Certificateholders, to the
Indenture Trustee for the benefit of the Noteholders and Certificateholders. The
Indenture Trustee will be obligated to transfer all amounts remaining on deposit
in the Collection Account on the Payment Date on which the Notes of all Classes
have been paid in full (or substantially all of the Trust Estate is otherwise
released from the lien of the Indenture) to the Collection Account established
pursuant to the Trust Agreement for the benefit of the Certificateholders, and
to take all necessary or appropriate actions to transfer all of its right, title
and interest in the Collection Account, all funds or investments held or to be
held therein and all proceeds thereof, whether or not on behalf of the
Noteholders and Certificateholders, to the Owner Trustee for the benefit of the
Certificateholders, subject to the limitations set forth in the Indenture with
respect to amounts held for payment to Noteholders that do not promptly deliver
a Note for payment on such Payment Date.
(e) With respect to the Collection Account and Payahead Account, and
all property held therein, the Owner Trustee agrees, by its acceptance hereof
that, on the terms and conditions set forth in the Indenture, for so long as
Notes of any Class remain outstanding, the Indenture Trustee shall possess all
right, title and interest therein (excluding interest or investment income
thereon payable to the Servicer or Seller, as the case may be), and that such
accounts shall be under the sole dominion and control of the Indenture Trustee
for the benefit of the Noteholders and the Certificateholders, as the case may
be, as set forth in the Indenture. The parties hereto agree that the Issuer,
Owner Trustee and Certificateholders have no right, title or interest in the
Reserve Account or any amounts on deposit therein at any time. The parties
hereto agree that the Servicer shall have the power, revocable by the Indenture
Trustee or by the Owner Trustee with the consent of the Indenture Trustee, to
instruct the Indenture Trustee to make withdrawals and payments from the
Collection Account and the Payahead Account for the purpose of permitting the
Servicer, Indenture Trustee or the Owner Trustee to carry out its respective
duties hereunder or under the Indenture or the Trust Agreement, as the case may
be.
SECTION 5.02 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
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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 the Monthly Remittance Conditions
are satisfied, 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 Payment 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 5.06(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 Payahead 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 5.06(a)(i). Commencing with the first day of the first Collection
Period that begins at least two Business Days after the day on which any Monthly
Remittance Condition ceases to be satisfied and for so long as all Monthly
Remittance Conditions are not satisfied, all Payments Ahead then held by the
Servicer shall be immediately deposited into the Payahead Account and all future
Payments Ahead shall be remitted by the Servicer to the Payahead Account within
two Business Days after receipt thereof.
(c) The Servicer shall give the Owner Trustee, the Indenture 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 Owner Trustee and Indenture 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 Notes or the Certificates.
SECTION 5.03 APPLICATION OF COLLECTIONS. As of the Business Day
immediately preceding the related Payment 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
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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 with respect to
any Receivable shall be applied, first, to reduce Outstanding Advances with
respect to such Receivable and then 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 5.04 ADVANCES.
(a) As of the close of business on the last day of each Collection
Period, if the payments by or on behalf of the Obligor on a Precomputed
Receivable (other than an Administrative Receivable or a Warranty Receivable)
after application under Section 5.03(a) shall be less than the Scheduled Payment
(determined as of the Closing Date), whether as a result of any modification or
extension granted to the Obligor or otherwise, then the Deferred Prepayment, if
any, with respect to such Precomputed Receivable shall be applied by the
Servicer to the extent of the shortfall, and such Deferred Prepayment shall be
reduced accordingly. Subject to the provisions of the last sentence of this
paragraph, the Servicer shall deposit an amount equal to such shortfall (each, a
"Precomputed Advance") in the Collection Account on the Business Day immediately
preceding the related Payment Date. In addition, as of the 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 5.03(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 Payment
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 Simple Interest Advances made
with respect to such Receivable. 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 any outstanding Simple Interest Advances made
with respect to such Receivable, be withdrawn from the Collection
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Account and paid to the Servicer in reimbursement of such outstanding Simple
Interest 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 and (iii) the Warranty
Purchase Payment; PROVIDED, HOWEVER, that in the case of Advances made pursuant
to Section 4.02, 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 the Servicer has determined that any Outstanding
Advance is a Nonrecoverable Advance, the Servicer may, in the relevant
Servicer's Certificate, set forth the amount of such Nonrecoverable Advance, and
on the related Payment Date, the Relevant Trustee shall promptly remit to the
Servicer from Actual Payments on deposit in the Collection Account an amount
equal to the amount of such Nonrecoverable Advance. The Servicer's determination
of Available Collections for any Collection Period shall take into account the
amount of Nonrecoverable Advances specified in any such Officer's Certificate.
(d) For so long as the Monthly Remittance Conditions are satisfied, in
lieu of causing the Servicer first to deposit and then the Relevant Trustee to
remit to the Servicer the amounts described in clauses (i) through (iv) in
Section 5.04(b) reimbursable in respect on Outstanding Advances, or the amounts
described in Section 5.04(c) applicable in respect of Nonrecoverable Advances,
the Servicer may deduct such amounts from deposits otherwise to be made into the
Collection Account.
SECTION 5.05 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 3.02, (ii) the Servicer shall remit the aggregate
Administrative Purchase Payments with respect to Administrative Receivables
pursuant to Section 4.08 and the amount required upon any optional purchase of
the Receivables by the Servicer, or any successor to the Servicer, pursuant to
Section 9.01; (iii) the Servicer shall remit (A) the amount required to be
remitted in respect of certain full Prepayments pursuant to Section 4.03 and (B)
the aggregate Advances pursuant to Sections 4.02, 4.03 and 5.04(a), and (C) the
amount of Payaheads and Applied Payaheads withdrawn by the Servicer or Indenture
Trustee at the direction of the Servicer from the Payahead Account for
application with respect to such Collection Period; and (iv) the Indenture
Trustee shall transfer the amounts described in Sections 5.06 and 5.07 from the
Reserve Account to the Collection Account or Principal Distribution Account
pursuant to Section 5.07.
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(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 Payment Date. At the direction of the Servicer, the Relevant Trustee
shall invest such amounts in Eligible Investments maturing not later than 3:00
P.M. New York City Time, on the related Payment Date.
SECTION 5.06 PAYMENTS AND DISTRIBUTIONS.
(a) On each Payment Date, the Indenture 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 Payment Date (except
that if the Collection Account, Principal Distribution Account, Payahead Account
and Reserve Fund are not all maintained by the Indenture Trustee, transfers to
be made between such accounts as described in Section 5.05, 5.06 and 5.07 shall
be made on the Business Day immediately preceding each Payment Date):
(i) from the Payahead Account (or directly from the Servicer
in the case of Payments Ahead held by the Servicer pursuant to Section
5.02(a) or (b)) to the Collection Account, the aggregate Applied
Payments Ahead; and
(ii) if the Servicer is not permitted to hold Payments Ahead
pursuant to Section 5.02(a) or (b), 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 Collections and the amounts to be paid to Noteholders of each Class
and the Certificateholders pursuant to Section 5.06(c), and all other
distributions, deposits and withdrawals to be made on the related Payment Date.
(c) Subject to Sections 5.06(d) and 5.06(e), on each Payment Date, the
Relevant Trustee shall make the following payments and distributions from the
Collection Account in the following order of priority and in the amounts set
forth in the Servicer's Certificate for such Payment Date; PROVIDED, HOWEVER,
that such payments and distributions shall be made only from those funds
deposited in the Collection Account for the related Collection Period:
(i) from Available Collections:
(A) to the Servicer, the Total Servicing Fee (including any
unpaid Total Servicing Fees from one or more prior Collection Periods);
(B) on a pro rata basis (based on the amounts distributable
pursuant to this clause to each such Class), to the Holders of the
Class A-1 Notes, the Class A-1 Interest Distributable Amount and any
outstanding Class A-1 Interest Carryover Shortfall, to the Holders of
the Class A-2 Notes, the Class A-2 Interest Distributable Amount and
any outstanding Class A-2 Interest Carryover Shortfall, and to the
Holders of the Class A-3 Notes, the Class A-3 Interest Distributable
Amount and any outstanding Class A-3 Interest Carryover Shortfall;
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(C) to the Principal Distribution Account, the First Priority
Principal Distribution Amount;
(D) to the Holders of the Class B Notes, the Class B Interest
Distributable Amount and any outstanding Class B Interest Carryover
Shortfall;
(E) to the Principal Distribution Account, the Second Priority
Principal Distribution Amount;
(F) to the Holders of the Class C Notes, the Class C Interest
Distributable Amount and any outstanding Class C Interest Carryover
Shortfall;
(G) to the Principal Distribution Account, the Regular
Principal Distribution Amount;
(H) to the Reserve Account, the amount, if any, necessary to
cause the balance of funds therein to equal the Specified Reserve
Account Balance; and
(I) any remaining amounts will be distributed to the
Certificateholders.
(ii) from the amounts deposited into the Principal Distribution Account
from the allocations of principal described in clauses (i)(C), (E) and (G)
above, the Issuer will pay principal of the Securities in the following
priority:
(A) to the Holders of Class A-1 Notes, until the total amount
paid to such Holders in respect of principal from the Closing Date is
equal to the Class A-1 Initial Principal Balance;
(B) to the Holders of Class A-2 Notes, until the total amount
paid to such Holders in respect of principal from the Closing Date is
equal to the Class A-2 Initial Principal Balance;
(C) to the Holders of the Class A-3 Notes, the amount required
to reduce the Class A-3 Principal Balance to 89.097% of the excess of
the Pool Balance as of the close of business on the last day of the
related Collection Period over the Certificate Balance as of the open
of business on such Payment Date;
(D) to the Holders of the Class B Notes, the amount required
to reduce the Class B Principal Balance to 7.055% of the excess of the
Pool Balance as of the close of business on the last day of the related
Collection Period over the Certificate Balance as of the open of
business on such Payment Date;
(E) to the Holders of the Class C Notes, the amount required
to reduce the Class C Principal Balance to 3.848% of the excess of the
Pool Balance as of the close of business on the last day of the related
Collection Period over the Certificate Balance as of the open of
business on such Payment Date;
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(F) after the total amount paid to Holders of the Class A-3
Notes in respect of principal from the Closing Date is equal to the
Class A-3 Initial Principal Balance, the total amount paid to Holders
of the Class B Notes in respect of principal from the Closing Date is
equal to the Class B Initial Principal Balance and the total amount
paid to Holders of the Class C Notes in respect of principal from the
Closing Date is equal to the Class C Initial Principal Balance, any
remaining funds will be paid to the Certificateholders.
(d) Notwithstanding the provisions of Section 5.06(c), after an Event
of Default relating to (i) the payment of principal to any Holder of Notes or
(ii) the payment of any interest on any Class of Notes that lasts for five or
more days and results in the acceleration of any Class of Notes occurs, or upon
the occurrence of an Insolvency Event relating to the Seller, on each Payment
Date, the Relevant Trustee shall make the following payments and distributions
from the Collection Account in the following order of priority and in the
amounts set forth in the Servicer's Certificate for such Payment Date; PROVIDED,
HOWEVER, that such payments and distributions shall be made only from Available
Collections deposited in the Collection Account for the related Collection
Period:
(i) to the Servicer, the Total Servicing Fee (including any
unpaid Total Servicing Fees from one or more prior Collection Periods);
(ii) on a pro rata basis (based on the amounts distributable
pursuant to this clause to each such Class), to the Holders of the
Class A-1 Notes, the Class A-1 Interest Distributable Amount and any
outstanding Class A-1 Interest Carryover Shortfall, to the Holders of
the Class A-2 Notes, the Class A-2 Interest Distributable Amount and
any outstanding Class A-2 Interest Carryover Shortfall, and to the
Holders of the Class A-3 Notes, the Class A-3 Interest Distributable
Amount and any outstanding Class A-3 Interest Carryover Shortfall;
(iii) to the Holders of Class A-1 Notes, until the total
amount paid to such Holders in respect of principal from the Closing
Date is equal to the Class A-1 Initial Principal Balance;
(iv) to the Holders of Class A-2 Notes and Class A-3 Notes, on
a pro rata basis (based on the Outstanding Amount of each such Class),
until the total amount paid to such Holders in respect of principal
from the Closing Date is equal to the Class A-2 Initial Principal
Balance and the Class A-3 Initial Principal Balance, respectively;
(v) to the Holders of the Class B Notes, the Class B Interest
Distributable Amount and any outstanding Class B Interest Carryover
Shortfall;
(vi) to the Holders of Class B Notes, until the total amount
paid to such Holders in respect of principal from the Closing Date is
equal to the Class B Initial Principal Balance;
(vii) to the Holders of the Class C Notes, the Class C
Interest Distributable Amount and any outstanding Class C Interest
Carryover Shortfall;
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(viii) to the Holders of Class C Notes, until the total amount
paid to such Holders in respect of principal from the Closing Date is
equal to the Class C Initial Principal Balance; and
(ix) any remaining amounts will be distributed to the
Certificateholders.
(e) Notwithstanding the provisions of Section 5.06(c), after any Event
of Default not specified in Section 5.06(d) occurs that results in the
acceleration of the Notes, on each Payment Date, the Relevant Trustee shall make
the following payments and distributions from the Collection Account in the
following order of priority and in the amounts set forth in the Servicer's
Certificate for such Payment Date; PROVIDED, HOWEVER, that such payments and
distributions shall be made only from Available Collections deposited in the
Collection Account for the related Collection Period:
(i) from Available Collections:
(A) to the Servicer, the Total Servicing Fee (including any
unpaid Total Servicing Fees from one or more prior Collection Periods);
(B) on a pro rata basis (based on the amounts distributable
pursuant to this clause to each such Class), to the Holders of the
Class A-1 Notes, the Class A-1 Interest Distributable Amount and any
outstanding Class A-1 Interest Carryover Shortfall, to the Holders of
the Class A-2 Notes, the Class A-2 Interest Distributable Amount and
any outstanding Class A-2 Interest Carryover Shortfall, and to the
Holders of the Class A-3 Notes, the Class A-3 Interest Distributable
Amount and any outstanding Class A-3 Interest Carryover Shortfall;
(C) to the Principal Distribution Account, the First Priority
Principal Distribution Amount;
(D) to the Holders of the Class B Notes, the Class B Interest
Distributable Amount and any outstanding Class B Interest Carryover
Shortfall;
(E) to the Principal Distribution Account, the Second Priority
Principal Distribution Amount;
(F) to the Holders of the Class C Notes, the Class C Interest
Distributable Amount and any outstanding Class C Interest Carryover
Shortfall;
(G) to the Principal Distribution Account, the Regular
Principal Distribution Amount;
(H) to the Reserve Account, the amount, if any, necessary to
cause the balance of funds therein to equal the Specified Reserve
Account Balance; and
(I) any remaining amounts will be deposited into the Principal
Distribution Account.
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(ii) from the amounts deposited into the Principal Distribution Account
from the allocations of principal described in clauses (i)(C), (E) and (G)
above, the Issuer will pay principal of the securities in the following
priority:
(A) to the Holders of Class A-1 Notes, until the total amount
paid to such Holders in respect of principal from the Closing Date is
equal to the Class A-1 Initial Principal Balance;
(B) to the Holders of Class A-2 Notes and Class A-3 Notes, on
a pro rata basis (based on the Outstanding Amount of each such Class),
until the total amount paid to such Holders in respect of principal
from the Closing Date is equal to the Class A-2 Initial Principal
Balance and the Class A-3 Initial Principal Balance, respectively;
(C) to the Holders of the Class B Notes until the total amount
paid to such Holders in respect of principal from the Closing Date is
equal to the Class B Initial Principal Balance;
(D) to the Holders of the Class C Notes until the total amount
paid to such Holders in respect of principal from the Closing Date is
equal to the Class C Initial Principal Balance;
(E) after the total amount paid to Holders of the Class C
Notes in respect of principal from the Closing Date is equal to the
Class C Initial Principal Balance, any remaining funds will be paid to
the Certificateholders.
(f) For purposes of determining whether an Event of Default pursuant to
Section 5.01(d) of the Indenture has occurred, the amount of principal required
to be paid to the Holders of any Class of Notes on any Payment Date is the
amount available to be paid thereto pursuant to Sections 5.05(c), (d) and (e);
provided however that (i) the Class A-1 Notes are required to be paid in full on
or before the Class A-1 Final Scheduled Payment Date, meaning that Holders of
Class A-1 Notes are entitled to have received on or before such date payments in
respect of principal in an aggregate amount equal to the Class A-1 Initial
Principal Balance together with all interest accrued thereon through such date;
(ii) the Class A-2 Notes are required to be paid in full on or before the Class
A-2 Final Scheduled Payment Date, meaning that Holders of Class A-2 Notes are
entitled to have received on or before such date payments in respect of
principal in an aggregate amount equal to the Class A-2 Initial Principal
Balance together with all interest accrued thereon through such date, (iii) the
Class A-3 Notes are required to be paid in full on or before the Class A-3 Final
Scheduled Payment Date, meaning that Holders of Class A-3 Notes are entitled to
have received on or before such date payments in respect of principal in an
aggregate amount equal to the Class A-3 Initial Principal Balance together with
all interest accrued thereon through such date; (iv) the Class B Notes are
required to be paid in full on or before the Class B Final Scheduled Payment
Date, meaning that Holders of Class B Notes are entitled to have received on or
before such date payments in respect of principal in an aggregate amount equal
to the Class B Initial Principal Balance together with all interest accrued
thereon through such date and (v) the Class C Notes are required to be paid in
full on or before the Class C Final Scheduled Payment Date, meaning that Holders
of Class C Notes are entitled to have
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received on or before such date payments in respect of principal in an aggregate
amount equal to the Class C Initial Principal Balance together with all interest
accrued thereon through such date.
(g) Except with respect to the final payment upon retirement of a Note
or Certificate, the Servicer shall on each Payment Date instruct the Relevant
Trustee to pay or distribute to each Securityholder of record on the related
Record Date by check mailed to such Securityholder at the address of such Holder
appearing in the Certificate Register or Note Register, as the case may be, (or,
if DTC, its nominee or a Clearing Agency is the relevant Holder, by wire
transfer of immediately available funds or pursuant to other arrangements), the
amount to be paid or distributed to such Securityholder pursuant to such
Holder's Note or Certificate. With respect to the final payment upon retirement
of a Note or Certificate, the Servicer shall on the relevant final Payment Date
instruct the Relevant Trustee to pay or distribute the amounts due thereon only
upon delivery for cancellation of the certificate representing such Note or
Certificate in accordance with the Indenture or the Trust Agreement, as the case
may be.
SECTION 5.07 RESERVE ACCOUNT. In order to assure that certain amounts
will be available to make required payments to Noteholders, the Seller will,
pursuant to the Securities Account Control Agreement and the Indenture,
establish and maintain with the Indenture Trustee a segregated trust account
(the "Reserve Account") which will include the money and other property
deposited and held therein pursuant to Sections 5.06(c) and (e) and this
Section. On or prior to the Closing Date, the Seller shall deposit an amount
equal to the Reserve Account Initial Deposit into the Reserve Account. As and to
the extent set forth in Section 5.06(c) and (e), as directed in writing by the
Servicer, the Indenture Trustee will deposit Available Collections into the
Reserve Account on each Payment Date, until the amount on deposit therein equals
the Specified Reserve Account Balance. On each Payment Date, to the extent that
Available Collections are insufficient to fully fund the payments and
distributions described in clauses (i)(A) through (F) of Section 5.06(c), in
clauses (i) through (viii) of Section 5.06(d) or clauses (i)(A) through F) of
Section 5.06(e), the Indenture Trustee will withdraw amounts then on deposit in
the Reserve Account (excluding net investment income on Eligible Investments
which amounts are payable to the Seller therefrom), up to the amounts of any
such deficiencies, and deposit such amounts into the Collection Account for
application pursuant to such clauses. Also on each Payment Date, as directed in
writing by the Servicer, the Indenture Trustee will release to the Seller any
amounts remaining on deposit in the Reserve Account in excess of the Specified
Reserve Account Balance. Also, upon the termination of the trusts established
under the Trust Agreement and the Indenture, as directed in writing by the
Servicer, the Indenture Trustee will release to the Seller any amounts remaining
on deposit in the Reserve Account. Upon any such distribution to the Seller, the
Issuer, Owner Trustee, Certificateholders, Indenture Trustee and Noteholders
will have no further rights in, or claims to, such amounts.
All amounts held in the Reserve Account shall be invested by the
Indenture Trustee, as directed in writing by the Servicer, in Eligible
Investments. Earnings on investment of funds in the Reserve Account shall be
paid to the Seller on each Payment Date, and losses and any investment expenses
shall be charged against the funds on deposit therein. The Indenture Trustee
shall incur no liability for the selection of investments or for losses thereon
absent its own negligence or willful misfeasance. The Indenture Trustee shall
have no liability in respect
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of losses incurred as a result of the liquidation of any investment prior to its
stated maturity date or the failure of the Servicer to provide timely written
investment directions.
Subject to the right of the Indenture Trustee to make withdrawals
therefrom, as directed by the Servicer, for the purposes and in the amounts set
forth in Section 5.06, the Reserve Account and all funds held therein shall be
the property of the Seller and not the property of the Issuer, the Owner Trustee
or the Indenture Trustee. The Issuer, Owner Trustee, Seller and Indenture
Trustee will treat the Reserve Account, all funds therein and all net investment
income with respect thereto as assets of the Seller for federal income tax and
all other purposes.
The Seller will grant to the Indenture Trustee, for the benefit of the
Noteholders, a security interest in all funds (including Eligible Investments)
in the Reserve Account (including the Reserve Account Initial Deposit) and the
proceeds thereof, and the Indenture Trustee shall have all of the rights of a
secured party under the UCC with respect thereto; provided that all income from
the investment of funds in the Reserve Account and the right to receive such
income are retained by the Seller and are not transferred, assigned or otherwise
conveyed hereunder. If for any reason the Reserve Account is no longer an
Eligible Deposit Account, the Indenture Trustee shall promptly cause the Reserve
Account to be moved to another institution or otherwise changed so that the
Reserve Account becomes an Eligible Deposit Account.
Neither the Owner Trustee nor the Indenture Trustee shall enter into
any subordination or intercreditor agreement with respect to the Reserve
Account.
SECTION 5.08 STATEMENTS TO CERTIFICATEHOLDERS AND NOTEHOLDERS.
(a) On each Payment Date, the Servicer shall provide to the Indenture
Trustee (with a copy to the Rating Agencies and each Paying Agent) for the
Indenture Trustee to forward to each Noteholder of record as of the most recent
Record Date and to the Owner Trustee (with a copy to each Paying Agent) for the
Owner Trustee to forward to each Certificateholder of record as of the most
recent Record Date a statement substantially in the form of Exhibit A, setting
forth at least the following information as to the Notes and the Certificates to
the extent applicable:
(i) the amount paid or distributed in respect of interest in
respect of each Class of Notes;
(ii) the amount paid or distributed in respect of principal on
or with respect to each Class of Notes;
(iii) the amount paid or distributed to the
Certificateholders;
(iv) the Pool Balance as of the close of business on the last
day of the preceding Collection Period;
(v) the Outstanding Amount, the Class A-1 Principal Balance,
the Class A-2 Principal Balance, the Class A-3 Principal Balance, the
Class B Principal Balance, the Class C Principal Balance, the
Certificate Balance, the Note Pool Factor for each Class of Notes, in
each case after giving effect to all payments in respect of principal
on such Payment Date;
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(vi) the amount of the Servicing Fee paid to the Servicer with
respect to the related Collection Period;
(vii) the amount of any Class A-1 Interest Carryover
Shortfall, Class A-2 Interest Carryover Shortfall, Class A-3 Interest
Carryover Shortfall, Class B Interest Carryover Shortfall and Class C
Interest Carryover Shortfall after giving effect to all payments of
interest on such Payment Date, and the change in such amounts from the
preceding Payment Date;
(viii) the aggregate amount of Payments Ahead on deposit in
the Payahead Account or held by the Servicer with respect to the
related Receivables and the change in such amount from the immediately
preceding Payment Date;
(ix) the amount of Advances made in respect of the related
Receivables and the related Collection Period and the amount of
unreimbursed Advances on such Payment Date; and
(x) the balance of any Reserve Account on such Payment Date
and the Specified Reserve Account Amount on such Payment Date, after
giving effect to changes thereto on such Payment Date.
SECTION 5.09 NET DEPOSITS. As an administrative convenience, the
Seller, the Servicer, the Owner Trustee and the Indenture 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 to the Owner Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders for all of the above described remittances, payments and
distributions as if all deposits, payments, distributions and transfers were
made individually.
ARTICLE VI
THE SELLER
SECTION 6.01 REPRESENTATIONS OF SELLER. The Seller makes the following
representations on which the Issuer is deemed to have relied in acquiring the
Receivables. The representations speak as of the execution and delivery of this
Agreement and as of the Closing Date, and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(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
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business shall require such qualifications and where the failure to so qualify
will have a material adverse effect on the ability of the Seller to conduct its
business or perform its obligations under this Agreement.
(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 as part of the Owner Trust
Estate or Trust Estate, as the case may be, and shall have duly authorized such
sale and assignment to the Issuer, the Owner Trustee or the Indenture Trustee,
as the case may be; 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 the Basic Documents), nor violate any law or, to the best of the
Seller's knowledge, any order, rule or regulation applicable to the Seller of
any court or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Seller or its
properties which breach, default, conflict, lien or violation would have a
material adverse effect on the earnings, business affairs or business prospects
of the Seller.
(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, the Trust Agreement, the Indenture,
the Securities Account Control Agreement, the Certificates or the Notes, (ii)
seeking to prevent the issuance of the Certificates or the Notes or the
consummation of any of the transactions contemplated by this Agreement, the
Trust Agreement or the Indenture, (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, the
Trust Agreement, the Indenture, the Certificates or the Notes, or (iv) relating
to the Seller and which might adversely affect the federal income tax attributes
of the Issuer, the Certificates or the Notes.
SECTION 6.02 CORPORATE EXISTENCE. During the term of this Agreement,
the Seller will keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation and will obtain and preserve its qualification to do business in
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each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Basic Documents and each other
instrument or agreement necessary or appropriate to the proper administration of
this Agreement and the transactions contemplated hereby. In addition, all
transactions and dealings between the Seller and its Affiliates (including the
Issuer) will be conducted on an arm's length basis.
SECTION 6.03 LIABILITY OF SELLER; INDEMNITIES. The Seller shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the Issuer,
the Owner Trustee, the Indenture Trustee and the Servicer and any of the
officers, directors, employees and agents of the Issuer, the Owner Trustee and
the Indenture Trustee from and against any taxes that may at any time be
asserted against any such Person with respect to the transactions contemplated
herein and in the Basic Documents, including any sales, gross receipts, general
corporation, tangible personal property, privilege or license taxes (but, in the
case of the Issuer, not including any taxes asserted with respect to, and as of
the date of, the sale of the Receivables to the Issuer or the issuance and
original sale of the Certificates and the Notes, or asserted with respect to
ownership of the Receivables or federal or other income taxes arising out of
payments or distributions on the Certificates or the Notes) and costs and
expenses in defending against the same.
(b) The Seller shall indemnify, defend and hold harmless the Issuer,
the Owner Trustee, the Indenture Trustee, the Issuer, the Certificateholders and
the Noteholders and any of the officers, directors, employees and agents of the
Issuer, the Owner Trustee and the Indenture Trustee from and against any loss,
liability or expense incurred by reason of (i) the Seller's willful misfeasance,
bad faith or negligence in the performance of its duties under this Agreement,
or by reason of reckless disregard of its obligations and duties under this
Agreement and (ii) the Seller's or the Issuer's violation of federal or state
securities laws in connection with the offering and sale of the Notes and the
Certificates.
(c) Except as set forth in clause (a) above, the Seller shall pay any
and all taxes levied or assessed upon all or any part of the Owner Trust Estate.
Indemnification under this Section shall survive the resignation or
removal of the Owner Trustee or the Indenture Trustee and the termination of
this Agreement and shall include reasonable fees and expenses of counsel and
expenses of litigation. If the Seller shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter shall collect any of such amounts from others, such Person
shall promptly repay such amounts to the Seller, without interest.
SECTION 6.04 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, SELLER. Any Person (a) into which the Seller may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Seller shall be a party or (c) which may succeed to the properties and assets of
the Seller substantially as a whole, which person 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 hereunder without the
execution or filing of any
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document or any further act by any of the parties to this Agreement; provided,
however, that (i) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 6.01 shall have been
breached (except that the representations regarding the due organization and
valid existence of the successor may be deemed to reference jurisdictions other
than California), (ii) the Seller shall have delivered to the Owner Trustee and
the Indenture Trustee an Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction have been complied
with, (iii) the Seller shall have given 10 days' written notice to each Rating
Agency of its intent or expectation to enter such transaction and neither Rating
Agency shall have notified the Seller, the Owner Trustee or the Indenture
Trustee that such transaction might or would cause it to reduce, withdraw or
modify its then current rating of any Class of Notes and (iv) the Seller shall
have delivered to the Owner Trustee and the Indenture Trustee an Opinion of
Counsel either (A) stating that, in the opinion of such counsel, all financing
statements and continuation statements and amendments thereto have been executed
and filed that are necessary fully to preserve and protect the interest of the
Owner Trustee and Indenture Trustee, respectively, in the Receivables and
reciting the details of such filings, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve and protect such
interests. Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement of assumption and compliance with clauses (i), (ii), (iii)
and (iv) above shall be conditions to the consummation of the transactions
referred to in clauses (a), (b) or (c) above.
SECTION 6.05 LIMITATION ON LIABILITY OF SELLER AND OTHERS. The Seller
and any director, officer, 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
hereunder. The Seller shall not be under any obligation to appear in, prosecute
or defend any legal action that shall not be incidental to its obligations under
this Agreement and that in its opinion may involve it in any expense or
liability.
SECTION 6.06 SELLER MAY OWN CERTIFICATES OR NOTES. The Seller and any
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Certificates or Notes with the same rights as it would have if it
were not the Seller or an Affiliate thereof, except as expressly provided in any
Basic Document.
ARTICLE VII
THE SERVICER
SECTION 7.01 REPRESENTATIONS OF SERVICER. The Servicer makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Receivables. The representations speak as of the execution and
delivery of this Agreement and as of the Closing Date, in the case of the
Initial Receivables, if any, and shall survive the sale of the Receivables to
the Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(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
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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 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 shall require such
qualifications and where the failure to so qualify will have a material adverse
effect on the ability of the Servicer to conduct its business or perform its
obligations under this Agreement.
(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 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 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 Servicer or 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, the Trust Agreement, the Indenture,
the Certificates or the Notes, (ii) seeking to prevent the issuance of the
Certificates or the Notes or the consummation of any of the transactions
contemplated by this Agreement, the Trust Agreement or the Indenture, (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Servicer of its obligations under, or the validity or
enforceability of, this Agreement, the Trust Agreement, the Indenture, the
Certificates or the Notes, or (iv) relating to the Servicer and which might
adversely affect the federal income tax attributes of the Issuer, the
Certificates or the Notes.
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SECTION 7.02 INDEMNITIES OF SERVICER. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement:
(a) The Servicer shall indemnify, defend and hold harmless the Seller,
the Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders and any of the officers, directors, employees and agents of
the Seller, the Issuer, the Owner Trustee and the Indenture Trustee from and
against any and all costs, expenses, losses, damages, claims and liabilities,
arising out of or resulting from the use, ownership or operation by the Servicer
or any Affiliate thereof of a Financed Vehicle.
(b) The Servicer shall indemnify, defend and hold harmless the Owner
Trustee and the Indenture Trustee and their respective officers, directors,
employees and agents 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 herein and in the Trust
Agreement contained, in the case of the Owner Trustee, and in the Indenture
contained, in the case of the Indenture Trustee, except to the extent that such
cost, expense, loss, claim, damage or liability: (i) in the case of the Owner
Trustee, shall be due to the willful misfeasance, bad faith or negligence
(except for errors in judgment) of the Owner Trustee or, in the case of the
Indenture Trustee, shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of the Indenture Trustee; or (ii) in
the case of the Owner Trustee, shall arise from the breach by the Owner Trustee
of any of its representations or warranties set forth in Section 7.03 of the
Trust Agreement.
(c) The Servicer shall indemnify, defend and hold harmless the Seller,
the Issuer, the Owner Trustee, the Indenture Trustee, the Certificateholders and
the Noteholders and any of the officers, directors, employees and agents of the
Seller, the Issuer, the Owner Trustee and the Indenture Trustee from and against
any and all costs, expenses, losses, claims, damages and liabilities (including
without limitation reasonable fees and expenses of counsel) to the extent that
such cost, expense, loss, claim, damage or liability arose out of, or is imposed
upon any such Person 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,
including those that may be incurred by any such indemnified party as a result
of any act or omission by the Servicer in connection with its maintenance and
custody of the Receivables Files.
(d) Promptly after receipt by a party indemnified under this Section
7.02 (an "Indemnified Party") of notice of the commencement of any action, such
Indemnified Party will, if a claim in respect thereof is to be made against the
party providing indemnification under this Section 7.02 (an "Indemnifying
Party"), notify such Indemnifying Party of the commencement thereof. In case any
such action is brought against any Indemnified Party under this Section 7.02 and
it notifies the Indemnifying Party of the commencement thereof, the Indemnifying
Party will assume the defense thereof, with counsel reasonably satisfactory to
such Indemnified Party (who may, unless there is, as evidenced by an opinion of
counsel to the Indemnified Party stating that there is an unwaivable conflict of
interest, be counsel to the Indemnifying Party), and 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
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defense thereof, other than reasonable costs of investigation. The obligations
set forth in this Section 7.02 shall survive the termination of this Agreement
or the resignation or removal of the Servicer, the Owner Trustee or the
Indenture Trustee and shall include reasonable fees and expenses of counsel and
expenses of litigation. If the Servicer shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter collects any of such amounts from others, such Person shall
promptly repay such amounts to the Servicer, without interest.
For purposes of this Section, in the event of the termination of the
rights and obligations of TMCC (or any successor thereto pursuant to Section
7.03) as Servicer pursuant to Section 8.01, or a resignation by such Servicer
pursuant to this Agreement, such Servicer shall be deemed to be the Servicer
pending appointment of a successor Servicer (other than the Indenture Trustee)
pursuant to Section 8.02.
SECTION 7.03 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, 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; provided, however,
that (i) immediately after giving effect to such transaction, no representation
or warranty made pursuant to Section 7.01 shall have been breached (except that
the representations regarding the due organization and valid existence of the
successor may be deemed to reference jurisdictions other than California), and
no Servicer Default, and no event which, after notice or lapse of time, or both,
would become a Servicer Default, shall have occurred and be continuing, (ii) the
Servicer shall have delivered to the Owner Trustee and the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply with
this Section and that all conditions precedent provided for in this Agreement
relating to such transaction have been complied with, (iii) the Servicer shall
have given 10 days' written notice to each Rating Agency of its intent or
expectation to enter such transaction and neither Rating Agency shall have
notified the Seller, the Owner Trustee or the Indenture Trustee that such
transaction might or would cause it to reduce, withdraw or modify its then
current rating of any Class of Notes, (iv) immediately after giving effect to
such transaction, the successor to the Servicer shall become the Administrator
under the Administration Agreement in accordance with Section 8 of such
Agreement and (v) the Servicer shall have delivered to the Owner Trustee and the
Indenture Trustee an Opinion of Counsel stating that, in the opinion of such
counsel, either (A) all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Owner Trustee and the Indenture
Trustee, respectively, in the Receivables and reciting the details of such
filings or (B) no such action shall be necessary to preserve and protect such
interests. Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement of assumption and compliance with clauses (i), (ii), (iii),
(iv) and (v) above shall be conditions to the consummation of the transactions
referred to in clause (a), (b) or (c) above.
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SECTION 7.04 LIMITATION ON LIABILITY OF SERVICER AND OTHERS. Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Seller, the Issuer, the Noteholders
or the Certificateholders, except as provided under 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.
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 (with the written consent of the Owner
Trustee or Indenture Trustee) undertake any reasonable action that it may deem
necessary or desirable in respect of the Basic Documents and the rights and
duties of the parties to the Basic Documents and the interests of the
Certificateholders under this Agreement and the Noteholders under the Indenture.
In such event, the reasonable legal expenses and costs for such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Estate (if any Notes are then outstanding) or the Owner Trust Estate (if
no Notes are then outstanding) and the Servicer will be entitled to be
reimbursed therefor solely from Available Collections.
SECTION 7.05 TMCC NOT TO RESIGN AS SERVICER. 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 a 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 Owner Trustee, the
Indenture Trustee and each Rating Agency at the earliest practicable time (and,
if such communication is not in writing, shall be confirmed in writing at the
earliest practicable time) and any such determination shall be evidenced by an
Opinion of Counsel to such effect delivered to the Owner Trustee and the
Indenture Trustee concurrently with or promptly after such notice. No such
resignation shall become effective until the Indenture Trustee or a successor
Servicer shall have (i) assumed the responsibilities and obligations of TMCC in
accordance with Section 8.02 and (ii) become the Administrator under the
Administration Agreement in accordance with Section 8 of such Agreement.
ARTICLE VIII
DEFAULT
SECTION 8.01 Servicer Default. Each of the following events is a
"Servicer Default":
(a) any failure by the Servicer (or the Seller, so long as TMCC is the
Servicer) to deliver to the Relevant Trustee for deposit in the Collection
Account, Payahead Account or
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Reserve Fund any required payment or to direct the Relevant Trustee to make any
required payment or distribution therefrom, which failure continues unremedied
for a period of three Business Days after discovery of the failure by an officer
of the Servicer or written notice of such failure is received (i) by the
Servicer (or the Seller, so long as TMCC is the Servicer) from the Owner Trustee
or the Indenture Trustee or (ii) to the Seller or the Servicer, as the case may
be, and to the applicable Owner Trustee and Indenture Trustee by the Holders of
Notes evidencing not less than 25% of the Class A Notes, acting as a single
Class (or if the Class A Notes are no longer outstanding, the Class B Notes, or
if the Class A Notes and Class B Notes are no longer outstanding, the Class C
Notes), excluding for purposes of such calculation and action all Securities
held or beneficially owned by TMCC, TMCRC or any of their affiliates (provided
that such event will not be a Servicer Default if (A) such failure or delay is
caused by an event of force majeure, (B) does not continue for more than 10
Business Days, (C) during such period the Servicer uses all commercially
reasonable efforts to perform its obligations under this Agreement and (D) the
Servicer provides to the Owner Trustee, Indenture Trustee, Seller and
Securityholders prompt notice of such failure or delay that includes a
description of the Servicer's efforts to remedy such failure or delay);
(b) failure by the Servicer or the Seller, as the case may be, duly to
observe or to perform in any material respect any other covenants or agreements
of the Servicer or the Seller (as the case may be) set forth in this Agreement,
which failure shall materially and adversely affect the rights of
Certificateholders or Noteholders and shall continue unremedied for a period of
90 days after the date on which written notice of such failure is received (i)
by the Servicer (or the Seller, so long as TMCC is the Servicer) from the Owner
Trustee or the Indenture Trustee or (ii) to the Seller or the Servicer, as the
case may be, and to the Owner Trustee and Indenture Trustee by the holders of
Notes evidencing not less than 25% of the Class A Notes, acting together as a
single Class (or if the Class A Notes are no longer outstanding, the Class B
Notes, or if the Class A Notes and Class B Notes are no longer outstanding, the
Class C Notes), excluding for purposes of such calculation and action all
Securities held or beneficially owned by TMCC, TMCRC or any of their affiliates;
or
(c) the occurrence of an Insolvency Event with respect to the Servicer.
At any time when a Servicer Default has occurred and is continuing, so long as
the Servicer Default shall not have been remedied, either the Indenture Trustee
or the Holders of Notes evidencing not less than 51% of the Outstanding Amount
of the Class A Notes acting as a single Class (or if the Class A Notes are no
longer outstanding, the Class B Notes, or if the Class A Notes and Class B Notes
are no longer outstanding, the Class C Notes), excluding for purposes of such
calculation and action all Securities held or beneficially owned by TMCC, TMCRC
or any of their affiliates, by notice then given in writing to the Servicer (and
to the Indenture Trustee and the Owner Trustee if given by the Noteholders) may
terminate all the rights and obligations (other than the obligations set forth
in Section 7.02 hereof and the rights set forth in Section 7.04 hereof) of the
Servicer under this Agreement. By the same required vote, the Noteholders
specified in the prior sentence may waive any such Servicer Default (other than
a default in the making any required deposits or payments from or to the
Collection Account, Reserve Account or Payahead Account) for a specified period
or permanently. Upon any such waiver of a past default, such default shall cease
to exist, and any Servicer Default arising
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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 thereto.
SECTION 8.02 APPOINTMENT OF SUCCESSOR.
(a) Upon the Servicer's receipt of notice of termination pursuant to
Section 8.01 or the Servicer's resignation in accordance with the terms of this
Agreement, the predecessor Servicer shall continue to perform its functions as
Servicer under this Agreement, in the case of termination, only until the date
specified in such termination notice or, if no such date is specified in a
notice of termination, until receipt of such notice and, in the case of
resignation, until the later of (i) the date 45 days from the delivery to the
Owner Trustee and the Indenture Trustee of written notice of such resignation
(or written confirmation of such notice) in accordance with the terms of this
Agreement and (ii) the date upon which the predecessor Servicer shall become
unable to act as Servicer, as specified in the notice of resignation and
accompanying Opinion of Counsel. In the event of the Servicer's termination
hereunder, the Indenture Trustee shall appoint a Successor Servicer, and the
Successor Servicer shall accept its appointment (including its appointment as
Administrator under the Administration Agreement as set forth in Section
8.02(b)) by a written assumption in form acceptable to the Owner Trustee and the
Indenture Trustee. In the event that a Successor Servicer has not been appointed
at the time when the predecessor Servicer has ceased to act as Servicer in
accordance with this Section, the Indenture Trustee without further action shall
automatically be appointed the Successor Servicer and the Indenture Trustee
shall be entitled to the Servicing Fee. Notwithstanding the above, the Indenture
Trustee shall, if it shall be unwilling or 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 shall include the servicing of automobile and/or light-duty truck
receivables, as the successor to the Servicer under this Agreement. In
connection therewith, the Indenture Trustee is authorized and empowered to offer
such successor servicer compensation up to, but not in excess of, the Total
Servicing Fee and other servicing compensation specified in this Agreement as
payable to the initial Servicer.
(b) Upon appointment, the successor Servicer (including the
Indenture Trustee acting as successor Servicer) shall (i) be the
successor in all respects to the predecessor Servicer and shall be
subject to all the responsibilities, duties and liabilities arising
thereafter relating thereto placed on the predecessor Servicer and
shall be entitled to the Servicing Fee and all the rights granted to
the predecessor Servicer by the terms and provisions of this Agreement
and (ii) become the Administrator under the Administration Agreement in
accordance with Section 8 of such Agreement. On or after the receipt by
the Servicer of written notice of termination pursuant to Section 8.01,
all authority and power of the Servicer under this Agreement, whether
with respect to the Notes, the Certificates or the Receivables or
otherwise, shall, without further action, pass to and be vested in the
Indenture Trustee or such Successor Servicer as may be appointed under
Section 8.02 and, without limitation, the Indenture Trustee and the
Owner Trustee are hereby authorized and empowered to execute and
deliver, for the benefit 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
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Servicer shall cooperate with the Successor Servicer and the Owner
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 Collection Account or Payahead Account 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. In the event that the Indenture Trustee succeeds to the
rights and obligations of the Servicer hereunder, and a subsequent
transfer of such rights and obligations is effected pursuant to this
Section 8.01 or Section 8.02 hereof, the original Servicer hereunder
shall reimburse the Indenture Trustee for all reasonable costs and
expenses as described in the immediately preceding sentence. Upon
receipt of notice of the occurrence of a Servicer Default, the Owner
Trustee shall give notice thereof to the Rating Agencies.
SECTION 8.03 REPAYMENT OF ADVANCES. If the Servicer shall resign or be
terminated, the Servicer shall continue to be entitled to receive reimbursement
for Outstanding Advances pursuant to Sections 5.03 and 5.04 with respect to all
Advances previously made thereby in the manner specified in such Sections.
SECTION 8.04 NOTIFICATION. Upon any termination of, or appointment of a
successor to, the Servicer pursuant to this Article VIII, the Owner Trustee
shall give prompt written notice thereof to Certificateholders, and the
Indenture Trustee shall give prompt written notice thereof to Noteholders and
the Rating Agencies.
ARTICLE IX
TERMINATION
SECTION 9.01 OPTIONAL PURCHASE OF ALL RECEIVABLES.
(a) On each Payment 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 Servicer, or any successor to the Servicer, shall have the option
to purchase the corpus of the Owner Trust Estate (whether or not such assets
then comprise all or a portion of the Trust Estate) for an amount equal to the
Optional Purchase Price. To exercise such option, the Servicer, or any successor
to the Servicer, shall notify the Owner Trustee and the Indenture Trustee of its
intention to do so in writing, no later than the tenth day of the month
preceding the month in which the Payment Date as of which such purchase is to be
effected and shall, on or before the Payment Date on which such purchase is to
occur, deposit pursuant to Section 5.05 in the Collection Account an amount
equal to the Optional Purchase Price, and shall succeed to all interests in and
to the Trust Estate and the Owner Trust Estate. Amounts so deposited will be
paid and distributed as set forth in
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Section 5.06 of this Agreement. Upon such deposit of the amount necessary to
purchase the corpus of the Owner Trust Estate, 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.
(b) Notice of any such purchase of the Owner Trust Estate shall be
given by the Owner Trustee and the Indenture Trustee to each Securityholder as
soon as practicable after their receipt of notice thereof from the Servicer.
(c) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders under this
Agreement other than Section 5.06 and the Owner Trustee will succeed to the
rights of, and assume the obligations of, the Indenture Trustee provided for in
this Agreement.
(d) Upon the repurchase of any Receivable by the Seller or the
Servicer, pursuant to any provision hereof (including Sections 3.02, 4.08 and
9.01(a)), the Owner Trustee on behalf of the Issuer and the Certificateholders,
and the Indenture Trustee on behalf of the Noteholders, shall, without further
action, be deemed to transfer, assign, set-over and otherwise convey to the
Seller, all right, title and interest of the Owner Trustee on behalf of the
Issuer in, to and under such repurchased Receivable, all monies due or to become
due with respect thereto and all proceeds thereof and the other property
conveyed to the Issuer hereunder 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 Issuer,
the Owner Trustee, the Certificateholders, the Indenture Trustee or the
Noteholders with respect thereto. The Owner Trustee and Indenture Trustee shall
execute such documents and instruments of transfer and assignment and take such
other actions as shall be reasonably requested by the Seller or the Servicer, as
the case may be, to effect the conveyance of such Receivable pursuant to this
Section. If in any enforcement suit or legal proceeding it is held that the
Seller or 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 Owner Trustee on behalf of the Issuer and the
Certificateholders, and the Indenture Trustee on behalf of the Noteholders
shall, at the written direction and expense of the Seller or Servicer, as the
case may be, take such reasonable steps as the Seller or Servicer deems
necessary to enforce the Receivable, including bringing suit in the name or
names of the Issuer, Certificateholders or Noteholders.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 AMENDMENT. This Agreement may be amended by the Seller,
the Servicer and the Issuer, with the consent of the Indenture Trustee, but
without the consent of any of the Noteholders or the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions in this Agreement or for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions in this Agreement or of modifying in any manner the
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rights of the Noteholders or the Certificateholders; PROVIDED, HOWEVER, that
such action shall not, as evidenced by an Opinion of Counsel delivered to the
Owner Trustee and the Indenture Trustee, adversely affect in any material
respect the interests of any Noteholder or Certificateholder. This Agreement may
also be amended by the Seller, the Servicer and the Issuer, with the consent of
the Indenture Trustee, but without the consent of any of the Noteholders or the
Certificateholders for the purpose of changing the formula for determining the
Specified Reserve Account Balance, the manner in which the Reserve Account is
funded (i.e. to allow the deposit of cash therein by any Person, but not to
change any order of priority of payments and distributions specified in Section
5.06 of the Sale and Servicing Agreement), changing the remittance schedule for
the deposit of collections with respect to the Receivables in the Collection
Account or Payahead Account pursuant to Section 5.02 hereof or changing the
definition of Eligible Investment, in each case only if the Indenture Trustee
and/or the Owner Trustee, as the case may be, has received a letter from each
Rating Agency to the effect that such Rating Agency will not qualify, reduce or
withdraw the rating it has currently assigned to any Class of Notes as a result
of such amendment; provided that no such amendment may increase or reduce in any
manner or accelerate or delay the timing of collections on the Receivables or
payments required to be made to any Class of Notes or Certificates without the
consent of all Holders of each effected Class.
This Agreement may also be amended from time to time by the Seller, the
Servicer and the Issuer, with the consent of the Indenture Trustee, the consent
of (A) if the interests of Indenture Trustee or the Noteholders are affected,
the Holders of Notes evidencing not less than 51% of the Outstanding Amount of
the Class A Notes (or if the Class A Notes are no longer outstanding, the Class
B Notes, or if the Class A Notes and Class B Notes are no longer outstanding,
the Class C Notes), excluding for purposes of such calculation and action all
Securities held or beneficially owned by TMCC, TMCRC or any of their affiliates,
and/or (B) if the interests of the Issuer, Owner Trustee or Certificateholders
are affected, the Holders of Certificates evidencing not less than 51% of the
Certificate Balance, 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 such Noteholders or Certificateholders;
PROVIDED, HOWEVER, that no such amendment may (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on the related Receivables or payments required to be made to any Class
of Notes or Certificates without the consent of all Holders of each effected
Class of Notes or the Certificates, as the case may be, or (ii) reduce the
aforesaid percentage of the Notes or Certificates required to consent to any
such amendment, without the consent of the holders of each Class of Notes or
Certificates, as the case may be, affected thereby.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and each
of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
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Prior to the execution of any amendment to this Agreement, the Owner
Trustee and the Indenture 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 and the Opinion of Counsel referred to in Section
10.02. The Owner Trustee and the Indenture Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner Trustee's or
the Indenture Trustee's, as applicable, own rights, duties or immunities under
this Agreement or otherwise.
SECTION 10.02 PROTECTION OF TITLE TO TRUST.
(a) The Seller shall execute and file such financing statements and
cause to be executed and filed such continuation 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 Issuer and of the Indenture Trustee in the
Receivables and in the proceeds thereof. The Seller shall deliver (or cause to
be delivered) to the Owner Trustee and the Indenture 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 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 Owner Trustee and the Indenture Trustee at
least five 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 have an obligation to
give the Owner Trustee and the Indenture 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 or new
financing statement. The Servicer shall at all times maintain each office from
which it shall service Receivables, and its principal executive office, within
the United States of America.
(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 Collection Account
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, the Servicer's
master computer records (including any backup archives) that refer to any
Receivable shall indicate clearly the interest of the Issuer, the Owner Trustee
and the Indenture Trustee in such Receivable and that such Receivable is owned
by the Issuer and has been pledged to the Indenture Trustee. Indication of these
respective interests in a Receivable shall be deleted from or modified on the
Servicer's
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computer systems when, and only when, the related Receivable shall have become a
Liquidated Receivable or been repurchased.
(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 automotive
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 printouts (including any restored from backup
archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and is owned by the
Issuer and has been pledged to the Indenture Trustee.
(g) Upon request, the Servicer shall furnish to the Owner Trustee or to
the Indenture Trustee, within five Business Days, a list of all Receivables (by
contract number and name of Obligor) then held as part of the Owner Trust
Estate, 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 Owner Trust Estate.
(h) The Servicer shall deliver to the Owner Trustee and the Indenture
Trustee:
(A) promptly after the execution and delivery of this
Agreement and, if required pursuant to Section 10.01, of each amendment
hereto, an Opinion of Counsel stating that, in the opinion of such
counsel, either (A) all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Owner Trustee and the
Indenture 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 (B) no such action shall be necessary to preserve and
protect such interest, in each case also specifying any action
necessary (as of the date of such opinion) to be taken in the following
year to preserve and protect such interest; and
(B) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months
after the first Cutoff Date, an Opinion of Counsel, dated as of a date
during such 90-day period, stating that, in the opinion of such
counsel, either (A) all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Owner Trustee and the
Indenture 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 (B) no such action shall be necessary to preserve and
protect such interest.
SECTION 10.03 NOTICES. All demands, notices, communications and
instructions upon or to the Seller, the Servicer, the Owner Trustee, the
Indenture Trustee or the Rating Agencies 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 (a) in the
case of the Servicer, to Toyota Motor Credit Corporation, 19001 S. Western
Avenue, Torrance, Californian 90509, Attention: Vice President, Treasury
((310) 618-4001), (b) in the case of the Seller, to Toyota Motor Credit
Receivables Corporation, 19300 Gramercy Place, North Building,
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Attention: President ((310) 468-7332), (c) in the case of the Issuer or the
Owner Trustee, at the Corporate Trust Office (as defined in the Trust
Agreement), (d) in the case of the Indenture Trustee, at the Corporate Trust
Office specified in the Indenture, (e) in the case of Moody's, to Moody's
Investors Service, Inc., ABS Monitoring Department, 99 Church Street, New York,
New York 10007, (f) in the case of Standard & Poor's, to Standard & Poor's
Ratings Services, a Division of the McGraw-Hill Companies, 26 Broadway (15th
Floor), New York, New York 10004, Attention of Asset Backed Surveillance
Department; or, as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
SECTION 10.04 ASSIGNMENT BY THE SELLER OR THE SERVICER. Notwithstanding
anything to the contrary contained herein, except as provided in Sections 6.04
and 7.03 of this Agreement and as provided in the provisions of this Agreement
concerning the resignation or termination of the Servicer, this Agreement may
not be assigned by the Seller or the Servicer.
SECTION 10.05 LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Seller, the Servicer, the Issuer,
the Owner Trustee, the Certificateholders, the Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 10.06 SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.07 SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.08 HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.09 GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of California, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 10.10 ASSIGNMENT BY ISSUER. The Seller hereby acknowledges and
consents to any mortgage, pledge, assignment and grant of a security interest by
the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of
the Noteholders of all right, title and interest of the Issuer in, to and under
the Receivables and/or the assignment of any or all of the Issuer's rights and
obligations hereunder to the Indenture Trustee.
SECTION 10.11 NONPETITION COVENANTS.
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(a) Notwithstanding any prior termination of this Agreement, the
Servicer and the Seller shall not, prior to the date which is one year and one
day after the termination of this Agreement with respect to the Issuer,
acquiesce, petition or otherwise invoke or cause the Issuer to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Issuer under any federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, the
Servicer shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Seller, acquiesce, petition or
otherwise invoke or cause the Seller to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller under any federal or state bankruptcy, insolvency or similar law,
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Seller or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller.
SECTION 10.12 LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE
TRUSTEE.
Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by U.S. Bank National Association, not in
its individual capacity, but solely in its capacity as Owner Trustee of the
Issuer and in its capacity as Indenture Trustee under the Indenture. In no event
shall U.S. Bank National Association have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered by the Seller or
Servicer, or prepared by the Seller or Servicer for delivery by the Owner
Trustee on behalf of the Issuer, pursuant hereto, as to all of which recourse
shall be had solely to the assets of the Issuer. For all purposes of this
Agreement, in the performance of its duties or obligations hereunder or in the
performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles VI, VII and VIII of the Trust Agreement.
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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 AUTO RECEIVABLES 1999-A
OWNER TRUST
By: U.S. Bank National Association,
not in its individual capacity but solely as
Owner Trustee on behalf of the Issuer
By: /s/ Edward F. Kachinski
---------------------------------
Name: Edward F. Kachinski
Title: Vice President
TOYOTA MOTOR CREDIT RECEIVABLES
CORPORATION, Seller
By: /s/ Lloyd Mistele
---------------------------------
Name: Lloyd Mistele
Title: President
TOYOTA MOTOR CREDIT CORPORATION,
Servicer
By: /s/ George Borst
---------------------------------
Name: George Borst
Title: Senior Vice President and General Manager
ACKNOWLEDGED AND ACCEPTED AS OF
THE DAY AND YEAR FIRST ABOVE WRITTEN:
U.S. Bank National Association, not in its
individual capacity but solely as Indenture Trustee
By: /s/ Edward F. Kachinski
- -----------------------------------
Name: Edward F. Kachinski
Title: Vice President
S-1
<PAGE>
SCHEDULE A
Schedule of Receivables
(To be Delivered to the Issuer at Closing and supplemented
on each Subsequent Transfer Date for Subsequent Receivables)
SA-1
<PAGE>
EXHIBIT A
Form of Servicer's Certificate
[To come]
A-1
<PAGE>
Exhibit 4.2
INDENTURE
--------------------------------------------------------------
TOYOTA AUTO RECEIVABLES 1999-A OWNER TRUST
as Issuer
and
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee and
Securities Intermediary
------------------------------------------------------
Dated as of July 1, 1999
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.01.Definitions...............................................................................2
SECTION 1.02.Usage of Terms............................................................................8
SECTION 1.03.Incorporation by Reference of Trust Indenture Act.........................................8
ARTICLE II
THE NOTES
SECTION 2.01.Form......................................................................................9
SECTION 2.02.Execution, Authentication and Delivery....................................................9
SECTION 2.03.Temporary Notes...........................................................................9
SECTION 2.04.Registration; Registration of Transfer and Exchange......................................10
SECTION 2.05.Mutilated, Destroyed, Lost or Stolen Notes...............................................11
SECTION 2.06.Persons Deemed Owners....................................................................11
SECTION 2.07.Payments of Principal and Interest.......................................................12
SECTION 2.08.Cancellation.............................................................................12
SECTION 2.09.Release of Collateral....................................................................13
SECTION 2.10.Book-Entry Notes.........................................................................13
SECTION 2.11.Notices to Clearing Agency...............................................................13
SECTION 2.12.Definitive Notes.........................................................................14
SECTION 2.13.Tax Treatment............................................................................14
ARTICLE III
COVENANTS
SECTION 3.01.Payment of Principal and Interest........................................................14
SECTION 3.02.Maintenance of Office or Agency..........................................................15
SECTION 3.03.Money for Payments To Be Held in Trust...................................................15
SECTION 3.04.Existence................................................................................17
SECTION 3.05.Protection of Trust Estate...............................................................17
SECTION 3.06.Opinions as to Trust Estate..............................................................17
SECTION 3.07.Performance of Obligations; Servicing of Receivables.....................................18
SECTION 3.08.Negative Covenants.......................................................................20
SECTION 3.09.Annual Statement as to Compliance........................................................20
SECTION 3.10.Issuer May Consolidate, etc., Only on Certain Terms......................................21
SECTION 3.11.Successor or Transferee..................................................................22
SECTION 3.12.No Other Business........................................................................23
SECTION 3.13.No Borrowing.............................................................................23
SECTION 3.14.Servicer's Notice Obligations............................................................23
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SECTION 3.15.Guarantees, Loans, Advances and Other Liabilities........................................23
SECTION 3.16.Capital Expenditures.....................................................................23
SECTION 3.17.Removal of Administrator.................................................................23
SECTION 3.18.Restricted Payments......................................................................24
SECTION 3.19.Notice of Events of Default..............................................................24
SECTION 3.20.Further Instruments and Actions..........................................................24
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01.Satisfaction and Discharge of Indenture..................................................24
SECTION 4.02.Application of Trust Money...............................................................25
SECTION 4.03.Repayment of Moneys Held by Paying Agent.................................................25
ARTICLE V
REMEDIES
SECTION 5.01.Events of Default........................................................................25
SECTION 5.02.Acceleration of Maturity; Rescission and Annulment.......................................27
SECTION 5.03.Collection of Indebtedness and Suits for Enforcement by Indenture Trustee................28
SECTION 5.04.Remedies; Priorities; Insolvency of Seller...............................................30
SECTION 5.05.Optional Preservation of the Receivables.................................................32
SECTION 5.06.Limitation of Suits......................................................................33
SECTION 5.07.Unconditional Rights of Noteholders To Receive Principal and Interest....................33
SECTION 5.08.Restoration of Rights and Remedies.......................................................33
SECTION 5.09.Rights and Remedies Cumulative...........................................................34
SECTION 5.10.Delay or Omission Not a Waiver...........................................................34
SECTION 5.11.Control by Noteholders...................................................................34
SECTION 5.12.Waiver of Past Defaults..................................................................34
SECTION 5.13.Undertaking for Costs....................................................................35
SECTION 5.14.Waiver of Stay or Extension Laws.........................................................35
SECTION 5.15.Action on Notes..........................................................................36
SECTION 5.16.Performance and Enforcement of Certain Obligations.......................................36
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.01.Duties of Indenture Trustee..............................................................37
SECTION 6.02.Rights of Indenture Trustee..............................................................38
SECTION 6.03.Individual Rights of Indenture Trustee...................................................39
SECTION 6.04.Indenture Trustee's Disclaimer...........................................................39
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SECTION 6.05.Notice of Defaults.......................................................................40
SECTION 6.06.Reports by Indenture Trustee to Holders..................................................40
SECTION 6.07.Compensation and Indemnity...............................................................40
SECTION 6.08.Replacement of Indenture Trustee.........................................................41
SECTION 6.09.Successor Indenture Trustee by Merger....................................................42
SECTION 6.10.Appointment of Co-Indenture Trustee or Separate Indenture Trustee........................42
SECTION 6.11.Eligibility; Disqualification............................................................44
SECTION 6.12.Preferential Collection of Claims Against Issuer.........................................44
SECTION 6.13.Pennsylvania Motor Vehicle Sales Finance Act Licenses....................................44
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01.Note Registrar To Furnish Names and Addresses of Noteholders.............................44
SECTION 7.02.Preservation of Information; Communications to Noteholders...............................45
SECTION 7.03.Reports by Issuer........................................................................45
SECTION 7.04.Reports by Indenture Trustee.............................................................45
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.01.Collection of Money......................................................................46
SECTION 8.02.Trust Accounts...........................................................................46
SECTION 8.03.[Reserved]...............................................................................46
SECTION 8.04.General Provisions Regarding Accounts....................................................46
SECTION 8.05.Release of Trust Estate..................................................................48
SECTION 8.06.Opinion of Counsel.......................................................................48
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01.Supplemental Indentures Without Consent of Noteholders...................................49
(h) Supplemental Indentures with Consent of Noteholders.................................50
SECTION 9.02.Limitations on Supplemental Indentures...................................................50
SECTION 9.03.Execution of Supplemental Indentures.....................................................51
SECTION 9.04.Effect of Supplemental Indenture.........................................................52
SECTION 9.05.Conformity with Trust Indenture Act......................................................52
SECTION 9.06.Reference in Notes to Supplemental Indentures............................................52
</TABLE>
iii
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
ARTICLE X
TERMINATION OF THE TRUST
<S> <C>
SECTION 10.01 Termination of the Trusts Created by Indenture..........................................52
SECTION 10.02.Optional Purchase of All Receivables....................................................53
ARTICLE XI
MISCELLANEOUS
SECTION 11.01.Compliance Certificates and Opinions, etc...............................................53
SECTION 11.02.Form of Documents Delivered to Indenture Trustee........................................55
SECTION 11.03.Acts of Noteholders.....................................................................56
SECTION 11.04.Notices, etc., to Indenture Trustee, Issuer and Rating Agencies.........................56
SECTION 11.05.Notices to Noteholders; Waiver..........................................................57
SECTION 11.06.Alternate Payment and Notice Provisions.................................................57
SECTION 11.07.Conflict with Trust Indenture Act.......................................................57
SECTION 11.08.Effect of Headings and Table of Contents................................................58
SECTION 11.09.Successors and Assigns..................................................................58
SECTION 11.10.Severability............................................................................58
SECTION 11.11.Benefits of Indenture...................................................................58
SECTION 11.12.Governing Law...........................................................................58
SECTION 11.13.Counterparts............................................................................58
SECTION 11.14.Recording of Indenture..................................................................58
SECTION 11.15.Trust Obligation........................................................................59
SECTION 11.16.No Petition.............................................................................59
SECTION 11.17.Inspection..............................................................................59
</TABLE>
EXHIBIT A - Forms of Class A-1 Note, Class A-2 Note, Class A-3 Note, Class B
Note and Class C Note
EXHIBIT B - Form of Note Depository Agreement
iv
<PAGE>
CROSS-REFERENCE TABLE
(not a part of this Indenture)
<TABLE>
<CAPTION>
TIA Indenture
Section Section
- ------- -------
<S> <C>
(Section)310(a)(1).......................................................................................... 6.11
(a)(2)............................................................................................. 6.11
(a)(3)............................................................................................. N.A.
(a)(4)............................................................................................. N.A.
(a)(5)............................................................................................. 6.11
(b) ............................................................................................... 5.04
6.08
6.11
11.04
(c) ............................................................................................... N.A.
(Section)311(a) ............................................................................................ 6.12
(b) ............................................................................................... 6.12
(c) ............................................................................................... N.A.
(Section)312(a) ............................................................................................ 7.02
(b) ............................................................................................... 7.02
(c) ............................................................................................... 7.02
(Section)313(a) ............................................................................................ 7.04
(b)(1)............................................................................................. N.A.
(b)(2)............................................................................................. 7.04
(c) ............................................................................................... 7.04
11.04
(d) ............................................................................................... 7.04
(Section)314(a) ............................................................................................ 3.09
7.03
11.04
(b) .............................................................................................. 11.14
(c)(1) ............................................................................................ 3.10
6.02
8.05(b)
6.02
11.01
(c)(2)............................................................................................. 3.06
3.10
6.02
8.05(b)
8.06
(c)(3)............................................................................................. N.A.
(d) ............................................................................................... N.A.
(d) ............................................................................................... N.A.
(e) .............................................................................................. 11.05
(f) .............................................................................................. 4.01.
(Section)315(a) ............................................................................................ 6.01
(b) ............................................................................................... 6.05
(c) ............................................................................................... 5.02
5.08
(d) ............................................................................................ 6.01(c)
(e) ............................................................................................... 5.13
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
TIA Indenture
Section Section
- ------- -------
<S> <C>
(Section)316(a)(last sentence).......................................................................... 6.01(c)
(a)(1) (A)..................................................................................... 6.01(c)
(a)(1) (B)........................................................................................ 5.12
(a)(2)............................................................................................ N.A.
(b) .............................................................................................. 5.01
5.04(b)
(c) .............................................................................................. 2.06
(Section)317(a) (1) ....................................................................................... 5.04
(a)(2) ........................................................................................ 5.03(c)
5.03(d)
(b) .............................................................................................. 4.03
(Section)318(a) ........................................................................................... 11.07
</TABLE>
- ---------
N.A. means not applicable
<PAGE>
INDENTURE dated as of July 1, 1999, between TOYOTA AUTO RECEIVABLES
1999-A OWNER TRUST, a Delaware business trust (the "Issuer"), and U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as trustee and not in its
individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Issuer's 5.365% Asset Backed
Notes, Class A-1 (the "Class A-1 Notes"), 5.800% Asset Backed Notes, Class A-2
(the "Class A-2 Notes"), 6.150% Asset Backed Notes, Class A-3 (the "Class A-3
Notes" and, together with the Class A-1 Notes and the Class A-2 Notes, the
"Class A Notes"), 6.300% Asset Backed Notes, Class B (the "Class B Notes") and
6.700% Asset Backed Notes, Class C (the "Class C Notes" and, together with the
Class B Notes and the Class A Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date,
as Indenture Trustee for the benefit of the Holders of the Notes and
Certificates, all of the Issuer's right, title and interest in and to: (i) all
right, title and interest of the Issuer 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 3.02 or the purchase
of Receivables by the Servicer pursuant to Section 4.08 or 9.01 of the Sale and
Servicing Agreement) on or after the Cutoff Date; (ii) the interest of the
Issuer 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 Issuer 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 Issuer in any Dealer Recourse; (v) the right of the Issuer
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 Issuer; (vi) the rights and interests of the Issuer under the
Sale and Servicing Agreement and as assignee (pursuant to the Sale and Servicing
Agreement) of the rights and interests of TMCRC under the Receivables Purchase
Agreement and; (vii) all other assets comprising the Owner Trust Estate; (viii)
all proceeds of the foregoing and (ix) all present and future claims, demands,
causes of action and choses in action in respect of any or all of the foregoing
and all payments on or under of every kind and nature whatsoever in respect of
any or all of the foregoing, including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights to
payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing (collectively, the
"Collateral").
The foregoing Grant is made in trust to secure the payment of principal
of and interest on, and any other amounts owing in respect of, the Notes,
equally and ratably without prejudice, priority or distinction, and to secure
compliance with the provisions of this Indenture, and subject to the subordinate
claims thereon of the Holders of the Certificates, all as provided in this
Indenture.
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<PAGE>
The Indenture Trustee, as Indenture Trustee on behalf of the Holders of
the Notes and for the benefit of the Certificateholders, acknowledges such
Grant, accepts the trusts under this Indenture in accordance with the provisions
of this Indenture and agrees to perform its duties required in this Indenture to
the best of its ability to the end that the interests of the Holders of the
Notes may be adequately and effectively protected and the rights of the
Certificateholders secured.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS. Except as otherwise specified herein or in
the context may otherwise require, capitalized terms used but not otherwise
defined herein have the meanings ascribed thereto in the Trust Agreement, the
Sale and Servicing Agreement and Securities Account Control Agreement, as the
case may be, for all purposes of this Indenture. 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:
"ACTION" has the meaning specified in Section 11.03(a).
"ADMINISTRATION AGREEMENT" means the Administration Agreement dated as
of July 1, 1999, among the Administrator, the Issuer and the Indenture Trustee.
"ADMINISTRATOR" means TMCC, or any successor Administrator under the
Administration Agreement.
"AUTHORIZED OFFICER" means (i) with respect to the Issuer, any officer
of the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer identified as such on any list of Authorized Officers
delivered by the Owner Trustee to the Indenture Trustee and (ii) with respect to
the Administrator, any Vice President or more senior officer of the
Administrator who is authorized to act for the Administrator in matters relating
to the Issuer and identified as such on any list of Authorized Officers
delivered by the Administrator to the Indenture Trustee.
"BOOK-ENTRY NOTES" means a beneficial interest in the Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class B Notes and Class C Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.10.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which banking institutions or trust companies in The City of New York, The
City of San Francisco or the City of Chicago are authorized or obligated by law,
regulation or executive order to remain closed.
"CLASS A-1 RATE" means 5.365% per annum (computed on the basis of the
actual number of days elapsed during the relevant Interest Period and a 360-day
year).
"CLASS A-1 NOTES" means the 5.365% Asset Backed Notes, Class A-1,
substantially in the form attached hereto as Exhibit A.
2
<PAGE>
"CLASS A-2 RATE" means 5.800% per annum (computed on the basis of a
360-day year consisting of twelve 30-day months).
"CLASS A-2 NOTES" means the 5.800% Asset Backed Notes, Class A-2,
substantially in the form attached hereto as Exhibit A.
"CLASS A-3 RATE" means 6.150% per annum (computed on the basis of a
360-day year consisting of twelve 30-day months).
"CLASS A-3 NOTES" means the 6.150% Asset Backed Notes, Class A-3,
substantially in the form attached hereto as Exhibit A.
"CLASS B RATE" means 6.300% per annum (computed on the basis of a
360-day year consisting of twelve 30-day months).
"CLASS B NOTES" means the 6.300% Asset Backed Notes, Class B,
substantially in the form attached hereto as Exhibit A.
"CLASS C RATE" means 6.700% per annum (computed on the basis of a
360-day year consisting of twelve 30-day months).
"CLASS C NOTES" means the 6.700% Asset Backed Notes, Class C,
substantially in the form attached hereto as Exhibit A.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"CLOSING DATE" means July 22, 1999.
"CODE" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"COLLATERAL" has the meaning specified in the Granting Clause of this
Indenture.
"CORPORATE TRUST OFFICE" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall be
administered, which office at date of execution of this Agreement is located at
111 East Wacker Drive, Suite 3000, Chicago, Illinois 60601, or at such other
address as the Indenture Trustee may designate from time to time by notice to
the Noteholders, the Issuer and the Administrator, or the principal corporate
trust office of any successor Indenture Trustee at the address designated by
such successor Indenture Trustee by notice to the Noteholders, the Issuer and
the Administrator.
"DEFAULT" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
3
<PAGE>
"DEFINITIVE NOTES" has the meaning specified in Section 2.12.
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXECUTIVE OFFICER" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary or the Treasurer of
such corporation; and with respect to any partnership, any general partner
thereof.
"GRANT" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, and grant a lien upon and a
security interest in and right of set-off against, deposit, set over and confirm
pursuant to this Indenture. A Grant of the Collateral or of any other agreement
or instrument shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the granting party or otherwise, and generally to do
and receive anything that the granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"HOLDER" or "NOTEHOLDER" means the Person in whose name a Note is
registered on the Note Register.
"INDENTURE TRUSTEE" means U.S. Bank National Association, a national
banking association, as Indenture Trustee under this Indenture, or any successor
Indenture Trustee under this Indenture.
"INDEPENDENT" means, when used with respect to any specified Person,
that the Person is in fact independent of the Seller, the Servicer, the
Administrator, the Issuer or any other obligor on the Notes or any Affiliate of
any of the foregoing Persons because, among other things, such Person (a) is not
an employee, officer or director or otherwise controlled thereby or under common
control therewith, (b) does not have any direct financial interest or any
material indirect financial interest therein (whether as holder of securities
thereof or party to contract therewith or otherwise) and (c) is not and has not
within the preceding twelve months been a promoter, underwriter, trustee,
partner, director or person performing similar functions therefor or otherwise
had legal, contractual or fiduciary or other duties to act on behalf of or for
the benefit thereof.
"INDEPENDENT CERTIFICATE" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in Section
11.01, made by an Independent appraiser or other expert appointed by an Issuer
Order and approved by the Indenture Trustee in the exercise of reasonable care,
and such opinion or certificate shall state that the signer has read the
definition of "Independent" in this Indenture and that the signer is Independent
within the meaning thereof.
4
<PAGE>
"INSOLVENCY EVENT" with respect to the Seller means the filing of a
decree or order for relief by a court having jurisdiction in the premises in
respect of the Seller in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Seller, or ordering the winding-up or liquidation of the
Seller's affairs, and such decree or order shall remain unstayed and in effect
for a period of 90 consecutive days; or the commencement by the Seller of a
voluntary case under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by the Seller to
the entry of an order for relief in an involuntary case under any such law, or
the consent by the Seller to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Seller, or the making by the Seller of any general assignment for the
benefit of creditors, or the failure by the Seller generally to pay its debts as
such debts become due, or the taking of any action by the Seller in furtherance
of any of the foregoing.
"INTEREST PERIOD" means, with respect to the Class A-1 Notes, the
period from (and including) any Payment Date to (but excluding) the next Payment
Date, except that the first interest period will be from (and including) the
Closing Date to (but excluding) August 16, 1999, and, with respect to the Class
A-2 Notes, Class A-3 Notes, Class B Notes and Class C Notes, the period from
(and including) the 15th day of each calendar month to (but excluding) the 15th
day of the succeeding calendar month except that the first interest period will
be from (and including) the Closing Date to (but excluding) August 15, 1999.
"INTEREST RATE" means the Class A-1 Rate, the Class A-2 Rate, the Class
A-3 Rate, the Class B Rate or the Class C Rate, as indicated by the context.
"ISSUER" means Toyota Auto Receivables 1999-A Owner Trust unless and
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the Notes.
"ISSUER ORDER" and "ISSUER REQUEST" mean a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"NOTE" means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note, a
Class B Note or a Class C Note.
"NOTE DEPOSITORY AGREEMENT" means the agreement entitled "Letter of
Representations" dated on or before the Closing Date among the Clearing Agency,
the Issuer and the Indenture Trustee with respect to certain matters relating to
the duties thereof with respect to the Book-Entry Notes, substantially in the
form attached hereto as Exhibit B.
"NOTE OWNER" means, with respect to a Book-Entry Note, any Person who
is the beneficial owner of such Book-Entry Note, as reflected on the books of
the Clearing Agency or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency).
5
<PAGE>
"NOTE REGISTER" means the Register of Noteholders' information
maintained by the Note Registrar pursuant to Section 2.04.
"NOTE REGISTRAR" means the Indenture Trustee unless and until a
successor Note Registrar shall have been appointed pursuant to Section 2.04.
"OFFICER'S CERTIFICATE" means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01, and delivered to
the Indenture Trustee.
"OPINION OF COUNSEL" means one or more written opinions of counsel who
may, except as otherwise expressly provided in this Indenture, be an employee of
or counsel to the Issuer, the Seller or the Servicer and which counsel shall be
satisfactory to the Owner Trustee, the Indenture Trustee or the Rating Agencies,
as the case may be.
"OUTSTANDING" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(a) Notes theretofore canceled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture Trustee or
any Paying Agent in trust for the Holders of such Notes; and
(c) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture unless proof satisfactory
to the Indenture Trustee is presented that any such Notes are held by a bona
fide purchaser; provided, that in determining whether the Holders of the
requisite percentage of the Outstanding Amount of the Notes, or any Class of
Notes, have given any request, demand, authorization, direction, notice,
consent, or waiver hereunder or under any Basic Document, Notes owned by the
Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any of
the foregoing Persons shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Indenture Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice,
consent, or waiver, only Notes that the Indenture Trustee knows to be so owned
shall be so disregarded. Notes so owned that have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgee's right so to act with respect to such Notes and
that the pledgee is not the Issuer, any other obligor upon the Notes, the Seller
or any Affiliate of any of the foregoing Persons.
"OUTSTANDING AMOUNT" means the aggregate principal amount of all Notes,
or, if indicated by the context, all Notes of any Class, outstanding at the date
of determination.
"OWNER TRUSTEE" means U.S. Bank National Association, not in its
individual capacity but solely as Owner Trustee under the Trust Agreement, or
any successor Owner Trustee under the Trust Agreement.
6
<PAGE>
"OWNER TRUST ESTATE" "OWNER TRUST ESTATE" means all right, title and
interest of the Issuer in and to the property and rights assigned to the Issuer
pursuant to Article II of the Sale and Servicing Agreement, all funds on deposit
from time to time in the accounts created pursuant to Section 5.01 of the Sale
and Servicing Agreement (excluding any net investment income with respect to
amounts held in such accounts) and all other property of the Issuer from time to
time, including any rights of the Owner Trustee and the Issuer pursuant to the
Sale and Servicing Agreement and the Administration Agreement, and as assignee
of the rights and Interests of the Depositor under the Receivables Purchase
Agreement.
"PAYING AGENT" means the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee specified in Section
6.11 that has been authorized by the Issuer to make payments to and
distributions from the Collection Account and the Payahead Account, including
payment of principal of or interest on the Notes on behalf of the Issuer.
"PREDECESSOR NOTE" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.05 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"PROCEEDING" means any suit in equity, action at law or other judicial
or administrative proceeding.
"REGISTERED HOLDER" means the Person in whose name a Note is registered
on the Note Register on the applicable Record Date.
"SALE AND SERVICING AGREEMENT" means the Sale and Servicing Agreement
dated as of July 1, 1999, among the Issuer, Toyota Motor Credit Receivables
Corporation, as Seller, and Toyota Motor Credit Corporation, as Servicer, and as
to which the Indenture Trustee is a third party beneficiary of certain
provisions.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES ACCOUNT CONTROL AGREEMENT" shall have the meaning ascribed
thereto in the Sale and Servicing Agreement.
"SELLER" shall mean Toyota Motor Credit Receivables Corporation, in its
capacity as seller under the Sale and Servicing Agreement, and its successor in
interest.
"SERVICER" shall mean Toyota Motor Credit Corporation in its capacity
as servicer under the Sale and Servicing Agreement, and any Successor Servicer
thereunder.
"SUCCESSOR SERVICER" has the meaning specified in Section 3.07(e).
"TRUST ESTATE" means all money, instruments, rights and other property
that are subject or intended to be subject to the lien and security interest of
this Indenture for the benefit of the Noteholders (including, without
limitation, all property and interests Granted to the Indenture Trustee pursuant
to the Granting Clause), including all proceeds thereof.
7
<PAGE>
"TRUST OFFICER" means, in the case of the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Secretary, Assistant Secretary or
any other officer of the Indenture 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 the
particular subject and, with respect to the Owner Trustee, any officer in the
Corporate Trust Administration Department of the Owner Trustee with direct
responsibility for the administration of the Trust Agreement and the Basic
Documents on behalf of the Owner Trustee.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939 as
in force on the date hereof, unless otherwise specifically provided.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code as in effect in the relevant jurisdiction at the relevant time.
SECTION 1.02. 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."
INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in
this Indenture have the following meanings:
"COMMISSION" means the Securities and Exchange Commission.
"INDENTURE SECURITIES" means the Notes.
"INDENTURE SECURITY HOLDER" means a Noteholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "institutional trustee" means the Indenture
Trustee.
"OBLIGOR" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in the TIA,
defined in the TIA by reference to another statute or defined by Commission rule
have the meanings so assigned to them.
8
<PAGE>
ARTICLE II
THE NOTES
SECTION 2.01. FORM. The Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, the Class B Notes and the Class C Notes, in each case together with
the Indenture Trustee's certificate of authentication, shall be in substantially
the form set forth in Exhibit A, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced by their
execution thereof. Any portion of the text of any Note may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in Exhibit A are part of the terms of this Indenture.
SECTION 2.02. EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall
be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile. Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes. The Indenture Trustee shall upon Issuer
Order authenticate and deliver Class A-1 Notes for original issue in an
aggregate principal amount of $303,000,000, Class A-2 Notes for original issue
in an aggregate principal amount of $284,000,000, Class A-3 Notes for original
issue in an aggregate principal amount of $334,093,000, Class B Notes for
original issue in an aggregate principal amount of $26,454,000 and Class C Notes
for original issue in an aggregate principal amount of $14,429,000. The
aggregate principal amount of Class A-1 Notes, Class A-2 Notes, Class A-3 Notes,
the Class B Notes and the Class C Notes outstanding at any time may not exceed
such respective amounts except as provided in Section 2.05. The Notes shall be
issuable as registered Notes in the minimum denomination $1,000. Each Note shall
be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form included in Exhibit A,
executed by the Indenture Trustee by the manual or facsimile signature of one of
its authorized signatories, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
SECTION 2.03. TEMPORARY NOTES. Pending the preparation of definitive
Notes, the Issuer may execute, and upon receipt of an Issuer Order the Indenture
Trustee shall authenticate
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and deliver, temporary Notes that are printed, lithographed, typewritten,
mimeographed or otherwise produced, of the tenor of the definitive Notes in lieu
of which they are issued and with such variations not inconsistent with the
terms of this Indenture as the officers executing such Notes may determine, as
evidenced by their execution of such Notes. If temporary Notes are issued, the
Issuer will cause definitive Notes to be prepared without unreasonable delay.
After the preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary Notes at the
office or agency of the Issuer to be maintained as provided in Section 3.02,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Issuer shall execute, and the Indenture Trustee shall
authenticate and deliver in exchange therefor, a like principal amount of
definitive Notes of authorized denominations. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes.
SECTION 2.04. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Note Registrar shall maintain a Note Register in which, subject
to such reasonable regulations as it may prescribe, the Note Registrar shall
provide for the registration of Notes and transfers and exchanges of Notes as
provided in this Indenture. The Indenture Trustee is hereby initially appointed
Note Registrar for the purpose of registering Notes and transfers and exchanges
of Notes as provided in this Indenture. In the event that, subsequent to the
Closing Date, the Indenture Trustee notifies the Issuer that it is unable to act
as Note Registrar, the Issuer 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 Indenture
applicable to it, and otherwise acceptable to the Indenture Trustee, to act as
successor Note Registrar under this Indenture.
If a Person other than the Indenture Trustee is appointed by the Issuer
as Note Registrar, the Issuer will give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register, and the Indenture Trustee shall
have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to rely
upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Holders of the Notes and
the principal amounts and number of such Notes.
(b) Upon the proper surrender for registration of transfer of any Note
at the office or agency of the Issuer to be maintained as provided in Section
3.02, the Issuer shall execute, and the Indenture Trustee shall authenticate in
the name of the designated transferee or transferees, one or more new Notes of
the same Class in authorized denominations of a like aggregate principal amount.
(c) At the option of the Holder, Notes may be exchanged for other Notes
of the same Class in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Issuer shall execute,
and the Indenture Trustee shall authenticate and the Noteholder shall obtain
from the Indenture Trustee, the Notes which the Noteholder making the exchange
is entitled to receive. Every Note presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the
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Indenture Trustee and the Note Registrar duly executed by the Holder thereof or
his attorney duly authorized in writing.
(d) No service charge shall be made for any registration of transfer or
exchange of Notes, but the Indenture 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 Notes.
(e) All Notes surrendered for registration of transfer or exchange
shall be canceled and subsequently destroyed by the Indenture Trustee.
SECTION 2.05. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the Indenture Trustee
harmless, then, in the absence of notice to the Issuer, the Note Registrar or
the Indenture Trustee that such Note has been acquired by a bona fide purchaser,
the Issuer shall execute, and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of the same Class. In
connection with the issuance of any new Note under this Section, the Issuer may
require payment by the Holder of such Note 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 Note or payment of a
destroyed, lost or stolen Note, a bona fide purchaser of the original Note in
lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer and the Indenture Trustee shall be entitled to recover
such replacement Note (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Note from such Person to whom such
replacement Note 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 Issuer or the Indenture Trustee in connection therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes of the same Class duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.06. PERSONS DEEMED OWNERS. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, and none of the Issuer,
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the Indenture Trustee or any agent of the Issuer or the Indenture Trustee shall
be affected by notice to the contrary.
SECTION 2.07. PAYMENTS OF PRINCIPAL AND INTEREST.
(a) The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the
Class B Notes and the Class C Notes shall accrue interest during each Interest
Period at the Class A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, the Class
B Rate and the Class C Rate, respectively, and such interest shall be payable on
each related Payment Date as specified in such Notes, pursuant to Section 5.06
of the Sale and Servicing Agreement and Section 3.01 hereof. Any installment of
interest or principal payable on any Note that is punctually paid or duly
provided for by the Issuer on the applicable Payment Date shall be paid to the
Person in whose name such Note (or one or more Predecessor Notes) is registered
on the Record Date. With respect to Notes registered on the Record Date in the
name of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payment will be made by wire transfer in immediately available funds to
the account designated by such nominee, except for the final installment of
principal payable with respect to such Note on a Payment Date or on the
applicable Final Scheduled Payment Date, which shall be payable as provided
below. Such payment will be made by check mailed first-class postage prepaid to
such Person's address as it appears on the Note Register on such Record Date or
by wire transfer to the account specified by the registered holder of any Note
with a face amount of at least $10,000,000. The funds represented by any such
checks returned undelivered shall be held in accordance with Section 3.03.
(b) The principal of each Note shall be payable in installments on each
Payment Date pursuant to Section 5.06 of the Sale and Servicing Agreement and
subject to the availability of funds therefor. All principal payments on each
Class of Notes shall be made pro rata to the Noteholders of such Class entitled
thereto. In accordance with Section 10.01, the Indenture Trustee shall notify
the Person in whose name a Note is registered at the close of business on the
Record Date preceding the Payment Date on which the final installment of
principal of and interest on such Note will be paid. Such notice shall be mailed
or transmitted by facsimile not less than 15 nor more than 30 days prior to such
final Payment Date, shall specify that such final installment will be payable
only upon presentation and surrender of such Note and shall specify the place
where such Note may be presented and surrendered for payment of such
installment.
SECTION 2.08. CANCELLATION. All Notes surrendered for payment,
registration of transfer or exchange shall, if surrendered to any Person other
than the Indenture Trustee, be delivered to the Indenture Trustee and shall be
promptly canceled by the Indenture Trustee. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly canceled by the Indenture Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section, except as expressly permitted by this Indenture.
All canceled Notes may be held or disposed of by the Indenture Trustee in
accordance with its standard retention or disposal policy as in effect at the
time unless the Issuer shall direct by an Issuer Order that they be destroyed or
returned to it; provided, that such Issuer Order is timely and the Notes have
not been previously disposed of by the Indenture Trustee.
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SECTION 2.09. RELEASE OF COLLATERAL. Subject to Sections 10.01 and
11.01 and the terms of the Basic Documents, the Indenture Trustee shall release
property from the lien of this Indenture only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(l) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates.
SECTION 2.10. BOOK-ENTRY NOTES. The Notes, upon original issuance, will
be issued in the form of typewritten Notes representing the Book-Entry Notes, to
be delivered to The Depository Trust Company, the initial Clearing Agency, or a
custodian therefor, by, or on behalf of, the Issuer. The Book-Entry Notes shall
be registered initially on the Note Register in the name of Cede & Co., the
nominee of the initial Clearing Agency, and no owner thereof will receive a
definitive Note representing such Note Owner's interest in such Note, except as
provided in Section 2.12. Unless and until definitive, fully registered Notes
(the "Definitive Notes") have been issued to such Note Owners pursuant to
Section 2.12:
(a) the provisions of this Section shall be in full force and effect;
(b) the Note Registrar and the Indenture Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture (including the
payment of principal of and interest on the Notes and the giving of instructions
or directions hereunder) as the authorized representative of the Note Owners;
(c) to the extent that the provisions of this Section conflict with any
other provisions of this Indenture, the provisions of this Section shall
control;
(d) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and agreements
between such Note Owners and the Clearing Agency and/or the Clearing Agency
Participants pursuant to the Note Depository Agreement. Unless and until
Definitive Notes are issued pursuant to Section 2.12, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency Participants and
receive and transmit payments of principal of and interest on the Notes to such
Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Notes evidencing a specified
percentage of the Outstanding Amount of the Notes or of the Notes of any Class,
the Clearing Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Notes and has delivered such
instructions to the Indenture Trustee.
SECTION 2.11. NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to such Note Owners pursuant to
Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of
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the Notes to the Clearing Agency and shall be deemed to have been given as of
the date of delivery to the Clearing Agency.
SECTION 2.12. DEFINITIVE NOTES. If (i) the Owner Trustee or the
Administrator advises the Indenture Trustee in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities with
respect to the Book-Entry Notes and the Owner Trustee and the Administrator are
unable to locate a qualified successor (and if the Administrator has made such
determination, the Administrator has given written notice thereof to the
Indenture Trustee), (ii) the Seller or the Administrator or the Indenture
Trustee at its option advises each other such party 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 or a Servicer Default, owners of the
Book-Entry Notes representing beneficial interests aggregating at least 51% of
the Outstanding Amount of the Notes of all Classes, advise the Indenture Trustee
and the Clearing Agency in writing that the continuation of a book-entry system
through the Clearing Agency or a successor thereto is no longer in the best
interests of the Note Owners acting together as a single Class, then the
Clearing Agency shall notify all Note Owners and the Indenture Trustee of the
occurrence of such event and of the availability of Definitive Notes to Note
Owners requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Notes representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, the Issuer shall execute and the
Indenture Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency. None of the Issuer, the Note Registrar or
the Indenture 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 Notes, the Indenture Trustee
shall recognize the Holders of the Definitive Notes as Noteholders. The
Indenture Trustee, Issuer and Administrator shall not be liable for any
inability to locate a qualified successor Clearing Agency. From and after the
date of issuance of Definitive Notes, all notices to be given to Noteholders
will be mailed thereto at their addresses of record in the Note Register as of
the relevant Record Date. Such notices will be deemed to have been given as of
the date of mailing.
SECTION 2.13. TAX TREATMENT. The Issuer has entered into this
Indenture, and the Notes will be issued, with the intention that, for federal,
state and local income, single business and franchise tax purposes, the Notes
will qualify as indebtedness of the Issuer secured by the Trust Estate. The
Issuer, by entering into this Indenture, and each Noteholder, by its acceptance
of a Note (and each Note Owner by its acceptance of an interest in the
applicable Book-Entry Note), agree to treat the Notes for federal, state and
local income, single business and franchise tax purposes as indebtedness of the
Issuer.
ARTICLE III
COVENANTS
SECTION 3.01. PAYMENT OF PRINCIPAL AND INTEREST. In accordance with the
terms of this Indenture, the Issuer will duly and punctually (i) pay the
principal of and interest, if any, on the Notes in accordance with the terms of
the Notes and (ii) release from the Collection Account, Principal Distribution
Account and Payahead Account all other amounts distributable or payable from the
Owner Trust Estate (including distributions to be made to Certificateholders on
any
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Payment Date) under the Trust Agreement, Sale and Servicing Agreement and
Administration Agreement. Without limiting the foregoing, and in order to
fulfill such obligations, pursuant to Sections 8.02 and 8.04 hereof, the Issuer
will cause the Servicer to direct the Indenture Trustee to apply all amounts on
deposit in the Collection Account, Payahead Account and Reserve Account on a
Payment Date deposited therein pursuant to the Sale and Servicing Agreement (i)
(a) for the benefit of the Class A-1 Notes, to the Class A-1 Noteholders, (b)
for the benefit of the Class A-2 Notes, to the Class A-2 Noteholders, (c) for
the benefit of the Class A-3 Notes, to the Class A-3 Noteholders; (d) for the
benefit of the Class B Notes, to the Class B Noteholders and (e) for the benefit
of the Class C Notes, to the Class C Noteholders, (ii) for the benefit of the
Certificateholders, to or as directed by the Owner Trustee or the Administrator,
as set forth in Sections 5.06 and 5.07 of the Sale and Servicing Agreement and
(iii) for the benefit of the Servicer, to or as directed by the Servicer
pursuant to Sections 5.06 and 5.07 of the Sale and Servicing Agreement. Amounts
properly withheld under the Code by any Person from a payment to any Noteholder
or Certificateholder of interest and/or principal shall be considered as having
been paid by the Issuer to such Noteholder or Certificateholder for all purposes
of this Indenture.
SECTION 3.02. MAINTENANCE OF OFFICE OR AGENCY. The Issuer will maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Notes may be surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer hereby initially appoints U.S. Bank National
Association to serve as its agent for the foregoing purposes. The Issuer will
give prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of any such office or agency. If at any time the Issuer
shall fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and demands
may be made or served at the Corporate Trust Office, and the Issuer hereby
appoints the Indenture Trustee as its agent to receive all such surrenders,
notices and demands.
SECTION 3.03. MONEY FOR PAYMENTS TO BE HELD IN TRUST. All payments of
amounts due and payable with respect to any Notes or Certificates that are to be
made from amounts withdrawn from the Collection Account, Principal Distribution
Account or Reserve Fund pursuant to Sections 2.07, 3.01, 4.02 and 4.03 shall be
made on behalf of the Issuer by the Indenture Trustee or by a Paying Agent, and
no amounts so withdrawn from such accounts for payments of Notes or Certificates
shall be paid over to the Issuer, the Owner Trustee or the Administrator except
as provided in this Section.
On or before each Payment Date, the Issuer shall deposit in the
Collection Account or, in accordance with the Sale and Servicing Agreement,
cause to be deposited (including the provision of instructions to the Indenture
Trustee to make any required withdrawals from the Payahead Account or Reserve
Account and to deposit such amounts in the Collection Account) to the extent of
funds available therefor, an aggregate sum sufficient to pay the amounts then
becoming due under the Notes and Certificates, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless the Paying Agent is the
Indenture Trustee) shall promptly notify the Indenture Trustee of its action or
failure so to act.
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The Indenture Trustee, as Paying Agent, hereby agrees with the Issuer
that it will, and the Issuer will cause each Paying Agent other than the
Indenture Trustee, as a condition to its acceptance of its appointment as Paying
Agent, to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of amounts due with
respect to the Notes or Certificates or for release to the Issuer for payment to
the Certificates in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and pay or release such sums to such Persons as herein provided;
(b) give the Indenture Trustee notice of any default by the Issuer (or
any other obligor upon the Notes) of which it has actual knowledge in the making
of any payment required to be made with respect to the Notes or the release of
any amounts to the Issuer to be paid to the Certificateholders;
(c) at any time during the continuance of any such default, upon the
written request of the Indenture Trustee, forthwith pay to the Indenture Trustee
all sums so held in trust by such Paying Agent;
(d) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes (or for
release to the Issuer) if at any time it ceases to meet the standards required
to be met by a Paying Agent at the time of its appointment; and
(e) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes or Certificates (or
assisting the Issuer to withhold from payment to the Certificateholders) of any
applicable withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed after such
amount has become due and payable and after the Indenture Trustee has taken the
steps described in the next paragraph shall be discharged from such trust and be
paid to the California Special Olympics upon presentation thereto of an Issuer
Request; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof, and all liability of the
Indenture Trustee or such Paying Agent with respect to such trust money shall
thereupon cease.
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In the event that any Noteholder shall not surrender its Notes for
retirement within six months after the date specified in the written notice of
final payment described in Section 2.07, the Indenture will give a second
written notice to the registered Noteholders that have not surrendered their
Notes for final payment and retirement. If within one year after such second
notice any Notes have not been surrendered, the Indenture Trustee shall, at the
expense and direction of the Issuer, cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be paid to California Special Olympics. The
Indenture Trustee shall also adopt and employ, at the expense and direction of
the Issuer, any other reasonable means of notification of such repayment
specified by the Issuer or the Administrator.
SECTION 3.04 EXISTENCE. The Issuer will keep in full effect its
existence, rights and franchises as a business trust under the laws of the State
of Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate or the Owner Trust Estate.
SECTION 3.05 PROTECTION OF TRUST ESTATE. The Issuer will from time to
time execute and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further assurance
and other instruments, and will take such other action necessary or advisable
to:
(a) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the purposes
hereof;
(b) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(c) enforce any of the Collateral; or
(d) preserve and defend title to the Trust Estate and the rights of the
Indenture Trustee and the Noteholders in such Trust Estate against the claims of
all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section 3.05.
SECTION 3.06 OPINIONS AS TO TRUST ESTATE.
(a) On the Closing Date, the Issuer shall furnish to the Indenture
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the execution, recording and
filing of this Indenture, any indentures supplemental hereto, any requisite
financing statements and continuation statements and any other requisite
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documents necessary to perfect and make effective the lien and security interest
of this Indenture or stating that, in the opinion of such counsel, no such
action is necessary to make such lien and security interest effective.
(b) As and when specified in Section 10.02(h) of the Sale and Servicing
Agreement, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the execution, recording, filing or re-recording and
refiling of this Indenture, any indentures supplemental hereto, any financing
statements and continuation statements and any other requisite documents
necessary to maintain the lien and security interest created by this Indenture
or stating that in the opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of Counsel shall also
describe the execution, recording, filing or re-recording and refiling of this
Indenture, any indentures supplemental hereto, any financing statements and
continuation statements and any other documents that will, in the opinion of
such counsel, be required to maintain the lien and security interest of this
Indenture until the date in the following calendar year on which such Opinion of
Counsel must again be delivered.
SECTION 3.07 PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES.
(a) The Issuer will not take any action and will use its best efforts
not to permit any action to be taken by others that would release any Person
from any of such Person's material covenants or obligations under any instrument
or agreement included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except in each
case as expressly provided in the Basic Documents.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Servicer and the Administrator to assist the
Issuer in performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in the Basic Documents and in the
instruments and agreements included in the Trust Estate, including but not
limited to filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of the Trust
Agreement, this Indenture and the Sale and Servicing Agreement in accordance
with and within the time periods provided for herein and therein.
(d) If an Authorized Officer of the Issuer shall have knowledge of the
occurrence of a Servicer Default under the Sale and Servicing Agreement, the
Issuer shall promptly notify the Indenture Trustee and the Rating Agencies
thereof, and shall specify in such notice the action, if any, the Issuer is
taking with respect of such default. If a Servicer Default shall arise from the
failure of the Servicer to perform any of its duties or obligations under the
Sale and Servicing Agreement with respect to the Receivables, the Issuer shall
take all reasonable steps available to it to remedy such failure.
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(e) As promptly as possible after the giving of notice of termination
to the Servicer of the Servicer's rights and powers pursuant to Section 8.01 of
the Sale and Servicing Agreement, the Indenture Trustee shall appoint a
successor servicer (the "Successor Servicer"), and such Successor Servicer shall
accept its appointment by a written assumption in a form acceptable to the
Indenture Trustee. In the event that a Successor Servicer has not been appointed
and accepted its appointment as set forth in Section 8.02 of the Sale and
Servicing Agreement, the Indenture Trustee without further action shall
automatically be appointed the Successor Servicer and shall thereafter be
entitled to the Servicing Fee. Notwithstanding the above, the Indenture Trustee
shall, if it shall be unwilling or 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 shall
include the servicing of automobile and/or light-duty truck receivables, as the
successor to the Servicer under the Sale and Servicing Agreement, in accordance
with the provisions of Section 8.02 of the Sale and Servicing Agreement. Upon
such appointment, the Indenture Trustee will be released from the duties and
obligations of acting as Successor Servicer, such release effective upon the
effective date of the servicing agreement entered into between the Successor
Servicer and the Issuer.
In connection with any such appointment, the Indenture Trustee may make
such arrangements for the compensation of such successor as it and such
Successor Servicer shall agree, subject to the limitations set forth below and
in the Sale and Servicing Agreement, and in accordance with Section 8.02 of the
Sale and Servicing Agreement, the Issuer shall enter into an agreement with such
successor for the servicing of the Receivables (such agreement to be in form and
substance satisfactory to the Indenture Trustee). If the Indenture Trustee shall
succeed to the Servicer's duties as servicer of the Receivables as provided
herein, it shall do so in its individual capacity and not in its capacity as
Indenture Trustee and, accordingly, the provisions of Article VI hereof shall be
inapplicable to the Indenture Trustee in its duties as Successor Servicer and
the servicing of the Receivables. In case the Indenture Trustee shall become the
Successor Servicer, the Indenture Trustee shall be entitled to appoint as a
subservicer any one of its affiliates, provided that the Indenture Trustee, in
its capacity as Successor Servicer, shall remain fully liable for the actions
and omissions of such Affiliate.
(f) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees that it will not enter into any
amendment, modification, supplement or waiver with respect to any Basic Document
except (i) to cure any ambiguity, to correct or supplement any provisions in
this Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement or of modifying in
any manner the rights of the Noteholders or the Certificateholders, and in each
case with the consent of the Indenture Trustee (but without the consent of any
of the Noteholders or the Certificateholders) and delivery of an Opinion of
Counsel delivered to the Owner Trustee and the Indenture Trustee, to the effect
that such action will not adversely affect in any material respect the interests
of any Noteholder or Certificateholder; (ii) for the purpose of changing the
formula for determining the Specified Reserve Account Balance, the manner in
which the Reserve Account is funded, changing the remittance schedule for the
deposit of collections with respect to the Receivables in the Collection Account
or Payahead Account pursuant to Section 5.02 of the Sale and Servicing Agreement
or changing the definition of Eligible Investment, in each case with the consent
of the Indenture Trustee (but without the consent of any of the Noteholders or
the Certificateholders) if
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the Indenture Trustee and/or the Owner Trustee, as the case may be, has received
a letter from each Rating Agency to the effect that such Rating Agency will not
qualify, reduce or withdraw the rating it has currently assigned to any Class of
Notes as a result of such amendment (provided that no such amendment may
increase or reduce in any manner or accelerate or delay the timing of
collections on the Receivables or payments required to be made to any Class of
Notes or Certificates without the consent of all Holders of each effected
Class); or (iii) with the consent of the Indenture Trustee and satisfaction of
all other conditions precedent to such action set forth in the related Basic
Document. If any such amendment, modification, supplement or waiver shall be so
consented to by the Indenture Trustee or such Holders, as applicable, the Issuer
agrees, promptly following a request by the Indenture Trustee to agree to such
amendment and to execute and deliver, in its own name and at its own expense,
such agreements, instruments, consents and other documents as the Indenture
Trustee may deem necessary or appropriate in the circumstances to implement such
amendment and to cause the relevant Basic Documents, as amended, to be
enforceable against the Issuer.
SECTION 3.08 NEGATIVE COVENANTS. So long as any Notes are Outstanding,
the Issuer shall not:
(a) except as expressly permitted by Basic Documents, sell, transfer,
exchange or otherwise dispose of any of the properties or assets of the Issuer,
including those included in the Trust Estate, unless directed to do so by the
Indenture Trustee;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly withheld
from such payments under the Code) or assert any claim against any present or
former Noteholder by reason of the payment of the taxes levied or assessed upon
any part of the Trust Estate;
(c) except as may be expressly permitted hereby and by the Basic
Documents, (A) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released from
any covenants or obligations with respect to the Notes under this Indenture, (B)
permit any lien, charge, excise, claim, security interest, mortgage or other
encumbrance (other than the lien of this Indenture) to be created on or extend
to or otherwise arise upon or burden the Trust Estate or any part thereof or any
interest therein or the proceeds thereof (other than tax liens, mechanics' liens
and other liens that arise by operation of law, in each case on any of the
Financed Vehicles and arising solely as a result of an action or omission of the
related Obligor), (C) permit the lien of this Indenture not to constitute a
valid first priority (other than with respect to any such tax, mechanics' or
other lien) security interest in the Trust Estate or (D) dissolve or liquidate
in whole or in part; or
(d) assume or incur any indebtedness other than the Notes or as
expressly contemplated by this Indenture (in connection with the obligation to
reimburse Advances from the Trust Estate, or to pay expenses from the Trust
Estate) or by the Basic Documents as in effect on the date hereof.
SECTION 3.09 ANNUAL STATEMENT AS TO COMPLIANCE. The Issuer will cause
the Servicer to deliver to the Indenture Trustee concurrently with its delivery
thereof to the Issuer the
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annual statement of compliance described in Section 4.11 of the Sale and
Servicing Agreement. In addition, on the same date annually upon which such
annual statement of compliance is to be delivered by the Servicer, the Issuer
shall deliver to the Indenture Trustee an Officer's Certificate stating, as to
the Authorized Officer signing such Officer's Certificate, that:
(a) a review of the activities of the Issuer during such year and of
its performance under this Indenture has been made under such Authorized
Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, the Issuer has complied with all conditions and covenants under this
Indenture throughout such year, or, if there has been a default in its
compliance with any such condition or covenant, specifying each such default
known to such Authorized Officer and the nature and status thereof.
SECTION 3.10 ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any State or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the duty to make due and
punctual payments of the principal of and interest on all Notes in
accordance with the terms thereof and the performance or observance of
every agreement and covenant of this Indenture on the part of the
Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) each Rating Agency shall have notified the Indenture
Trustee and the Owner Trustee that such transaction will not result in
the removal or reduction of the rating then assigned thereby to any
Class of Notes;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain each lien and
security interest created by the Trust Agreement, the Sale and
Servicing Agreement or by this Indenture shall have been taken; and
(vi) The Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that
such consolidation or merger and any related supplemental indenture
complies with this Article III and that all conditions precedent
provided for in this Indenture relating to such transaction have been
complied with (including any filing required by the Exchange Act).
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(b) Except as expressly provided in this Indenture or in the Basic
Documents, the Issuer shall not convey or transfer its properties or assets,
including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer such
properties and assets of the Issuer shall (A) be a United States
citizen or a Person organized and existing under the laws of the United
States of America or any State or the District of Columbia, (B)
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the duty to make due and punctual payments of the
principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the
part of the Issuer to be performed or observed, all as provided herein,
(C) expressly agrees by means of such supplemental indenture that all
right, title and interest so conveyed or transferred shall be subject
and subordinate to the rights of Holders of the Notes, (D) unless
otherwise provided in such supplemental indenture, expressly agrees to
indemnify, defend and hold harmless the Issuer, the Owner Trustee and
the Indenture Trustee against and from any loss, liability or expense
arising under or related to this Indenture and the Notes, and (E)
expressly agrees by means of such supplemental indenture that such
Person (or if a group of Persons, then one specified Person) shall make
all filings that counsel satisfactory to such purchaser or transferee
and the Indenture Trustee determines must be made with (1) the
Commission (and any other appropriate Person) required by the Exchange
Act or the appropriate authorities in any State in which the Notes have
been sold pursuant to any qualification or exemption under the
securities or "blue sky" laws of such State, in connection with the
Notes or (2) the Internal Revenue Service or the relevant state or
local taxing authorities of any jurisdiction;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) each Rating Agency shall notified the Indenture Trustee
and the Owner Trustee that such transaction might or would result in
the removal or reduction of the rating then assigned thereby to any
Class of Notes;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain each lien and
security interest created by the Trust Agreement, the Sale and
Servicing Agreement or by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that
such conveyance or transfer and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act).
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SECTION 3.11. SUCCESSOR OR TRANSFEREE.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.10(b), Toyota Auto Receivables 1999-A Owner
Trust will be released from every covenant and agreement of this Indenture to be
observed or performed on the part of the Issuer with respect to the Notes
immediately upon the delivery of written notice to the Indenture Trustee stating
that Toyota Auto Receivables 1999-A Owner Trust is to be so released.
SECTION 3.12. NO OTHER BUSINESS. Unless and until the Issuer shall have
been released from its duties and obligations hereunder, the Issuer shall not
engage in any business other than financing, purchasing, owning, selling and
managing the Receivables in the manner contemplated by the Basic Documents and
activities incidental thereto
SECTION 3.13. NO BORROWING. Unless and until the Issuer shall have been
released from its duties and obligations hereunder, the Issuer shall not issue,
incur, assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness except for the Notes or other obligations permitted hereunder
(including the obligation to reimburse Advances or certain expenses of the
Servicer) or under another Basic Document (including indemnification expenses of
the Issuer and certain fees and expenses of the Administrator).
SECTION 3.14. SERVICER'S NOTICE OBLIGATIONS. The Issuer shall cause the
Servicer to comply with all of its duties and obligations with respect to the
preparation of reports, the delivery of Officer's Certificates and Opinions of
Counsel and the giving of instructions and notices under the Sale and Servicing
Agreement (including, but not limited to, under Sections 3.02, 4.08, 4.10, 4.11,
4.12, 4.15, 5.08 and Article X thereof).
SECTION 3.15. GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Unless
and until the Issuer shall have been released from its duties and obligations
hereunder, except as contemplated by the Sale and Servicing Agreement, this
Indenture or the other Basic Documents, the Issuer shall not make any loan or
advance or credit to, or guarantee (directly or indirectly or by an instrument
having the effect of assuring another's payment or performance on any obligation
or capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the obligations,
stocks or dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or any
other interest in, or make any capital contribution to, any other Person.
SECTION 3.16. CAPITAL EXPENDITURES. Unless and until the Issuer shall
have been released from its duties and obligations hereunder, the Issuer shall
not make any expenditure (by long-term or operating lease or otherwise) for
capital assets (either realty or personalty).
SECTION 3.17. REMOVAL OF ADMINISTRATOR. So long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
so instructed by the Owner
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Trustee or the Indenture Trustee and unless each Rating Agency shall have
received 10 days' written notice thereof and shall not have notified the
Indenture Trustee, the Administrator or the Owner Trustee that such removal
might or would result in the removal or reduction of the rating then assigned
thereby to any Class of Notes or the Certificates.
SECTION 3.18. RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Servicer, the Owner Trustee or any Certificateholder or
otherwise with respect to any ownership or equity interest or security in or of
the Issuer, (ii) redeem, purchase, retire or otherwise acquire for value any
such ownership or equity interest or security or (iii) set aside or otherwise
segregate any amounts for any such purpose; PROVIDED, HOWEVER, that the Issuer
may make, or cause to be made, distributions or payments to the Servicer, the
Owner Trustee and the Certificateholders as contemplated by, and to the extent
funds are available for such purpose under, the Basic Documents. The Issuer will
not, directly or indirectly, make payments to or distributions from the
Collection Account except in accordance with the Basic Documents.
SECTION 3.19. NOTICE OF EVENTS OF DEFAULT. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder, each default on the part of the Servicer or the Seller of its
obligations under the Sale and Servicing Agreement and each default on the part
of TMCC of its obligations under the Receivables Purchase Agreement. The
Indenture Trustee shall notify each Noteholder of record in writing of any Event
of Default promptly upon a Trust Officer obtaining actual knowledge thereof.
Such notices will be provided in accordance with Section 2.11 or 2.12, as
applicable.
SECTION 3.20. FURTHER INSTRUMENTS AND ACTIONS. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.03, 3.04 and 3.05,
(v) the rights, obligations and immunities of the Indenture Trustee hereunder
(including the rights of the Indenture Trustee under Section 6.07 and the
obligations of the Indenture Trustee under Sections 3.03 and 4.02), and (vi) the
rights of Noteholders and Certificateholders as beneficiaries hereof with
respect to the property so deposited with the Indenture Trustee payable to all
or any of them, and the Indenture Trustee, on demand of and at the expense of
the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, when:
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(a) either (1) all Notes theretofore authenticated and delivered (other
than Notes that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 2.05 and Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.03) have been delivered to the Indenture Trustee for
cancellation or (2) all Notes not theretofore delivered to the Indenture Trustee
for cancellation have become due and payable or will become due and payable
within one year (either because the Class C Final Scheduled Payment Date is
within one year or because the Indenture Trustee has received notice of the
exercise of the option granted pursuant to Section 9.01 of the Sale and
Servicing Agreement) and the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Indenture Trustee cash or direct obligations of
or obligations guaranteed by the United States of America (which will mature
prior to the date such amounts are payable), in trust for such purpose, in an
amount sufficient to pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Indenture Trustee for cancellation when due;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or the Indenture
Trustee) an Independent Certificate from a firm of certified public accountants,
each meeting the applicable requirements of Section 11.01 and, subject to
Section 11.02, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied
with.
SECTION 4.02. APPLICATION OF TRUST MONEY. All moneys deposited with the
Indenture Trustee pursuant to Section 4.01 hereof shall be held in trust and (a)
applied by it in accordance with the provisions of the Notes and this Indenture
to the payment, either directly or through any Paying Agent, as the Indenture
Trustee may determine, to the Holders of the particular Notes for the payment of
which such moneys have been deposited with the Indenture Trustee, of all sums
due and to become due thereon for principal and interest or (b) released to the
Owner Trustee for distribution to the Certificateholders or application pursuant
to the Trust Agreement or Sale and Servicing Agreement; but such moneys need not
be segregated from other funds except to the extent required herein or in the
Sale and Servicing Agreement or required by law.
SECTION 4.03. REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.03 or 4.02 and thereupon such Paying Agent shall be released from
all further liability with respect to such moneys.
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ARTICLE V
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. "Event of Default," wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest on any Class A Note when the
same becomes due and payable, and such default shall continue for a period of
five days (so long as any Class A Notes are Outstanding, each Holder of any
Class B and Class C Note or the Note Owner of any such Note by such Holder's
acceptance of such Note or beneficial interest therein, as the case may be,
shall be deemed to have consented to the delay in payment of interest on such
Class of Notes and to have waived its right to institute suit for enforcement of
any such payment); or
(b) after the Class A Notes have been paid in full, default in the
payment of any interest on any Class B Note when the same becomes due and
payable, and such default shall continue for a period of five days (so long as
the Class B Notes are outstanding, each Holder of any Class C Note or the Note
Owner of any such note by such Holder's acceptance of such Note or beneficial
interest therein, as the case may be, shall be deemed to have consented to the
delay in payment of interest on such Class of Notes and to have waived its right
to institute suit for enforcement of any such payment); or
(c) after the Class B Notes have been paid in full, default in the
payment of any interest on any Class C Note when the same becomes due and
payable, and such default shall continue for a period of five days (so long as
the Class C Notes are outstanding); or
(d) default in the payment of the principal of or any installment of
the principal of any Note when the same becomes due and payable; or
(e) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere in
this Section specifically dealt with) which shall continue or not be cured for a
period of 90 days after there shall have been given, by registered or certified
mail, to the Issuer by the Indenture Trustee or to the Issuer and the Indenture
Trustee by the Holders of at least 25% of the Outstanding Amount of the Notes
acting together as a single class, a written notice specifying such default and
requiring it to be remedied and stating that such notice is a notice of Default
hereunder;
(f) any representation or warranty of the Issuer made in this Indenture
or in any certificate or other writing delivered pursuant hereto or in
connection herewith shall prove to have been incorrect in any material respect
as of the time when the same shall have been made, and such default shall
continue or not be cured, or the circumstance or condition in respect of which
such misrepresentation or warranty was incorrect shall not have been eliminated
or
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otherwise cured, for a period of 30 days after there shall have been given, by
registered or certified mail, to the Issuer by the Indenture Trustee or to the
Issuer and the Indenture Trustee by the Holders of at least 25% of the
Outstanding Amount of the Notes acting together as a single class, a written
notice specifying such incorrect representation or warranty and requiring it to
be remedied and stating that such notice is a notice of Default hereunder; or
(g) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part of
the Trust Estate in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Trust Estate,
or ordering the winding-up or liquidation of the Issuer's affairs, and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(h) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Trust Estate, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer generally
to pay its debts as such debts become due, or the taking of any action by the
Issuer in furtherance of any of the foregoing.
For purposes of determining whether an Event of Default pursuant to
Section 5.01(d) has occurred, the amount of principal required to be paid to the
Holders of any Class of Notes on any Payment Date is the amount available to be
paid thereto pursuant to Sections 5.05(c), (d) and (e) of the Sale and Servicing
Agreement; provided however that (i) the Class A-1 Notes are required to be paid
in full on or before the Class A-1 Final Scheduled Payment Date, meaning that
Holders of Class A-1 Notes are entitled to have received on or before such date
payments in respect of principal in an aggregate amount equal to the Class A-1
Initial Principal Balance together with all interest accrued thereon through
such date; (ii) the Class A-2 Notes are required to be paid in full on or before
the Class A-2 Final Scheduled Payment Date, meaning that Holders of Class A-2
Notes are entitled to have received on or before such date payments in respect
of principal in an aggregate amount equal to the Class A-2 Initial Principal
Balance together with all interest accrued thereon through such date, (iii) the
Class A-3 Notes are required to be paid in full on or before the Class A-3 Final
Scheduled Payment Date, meaning that Holders of Class A-3 Notes are entitled to
have received on or before such date payments in respect of principal in an
aggregate amount equal to the Class A-3 Initial Principal Balance together with
all interest accrued thereon through such date; (iv) the Class B Notes are
required to be paid in full on or before the Class B Final Scheduled Payment
Date, meaning that Holders of Class B Notes are entitled to have received on or
before such date payments in respect of principal in an aggregate amount equal
to the Class B Initial Principal Balance together with all interest accrued
thereon through such date and (v) the Class C Notes are required to be paid in
full on or before the Class C Final Scheduled Payment Date, meaning that Holders
of Class C Notes are entitled to have received on or before such date payments
in respect of principal in an aggregate amount equal to the Class C Initial
Principal Balance together with all interest accrued thereon through such date.
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The Issuer shall deliver to the Indenture Trustee, within five days
after the occurrence thereof, written notice in the form of an Officer's
Certificate of any Default which with the giving of notice or the lapse of time
would become an Event of Default under clause (e), the status of such Default
and any action the Issuer is taking or proposes to take with respect thereto.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee or (i) the Holders of at least 51% of the Outstanding Amount
of the Class A Notes acting together as a single Class (without the consent of
the Class B Notes or the Class C Notes) or (ii) after the Class A Notes have
been paid in full, the Holders of at least 51% of the outstanding principal
amount of Class B Notes (without the consent of any holder of the Class C Notes)
or (iii) after the Class B Notes have been paid in full, the Holders of at least
51% of the outstanding principal amount of Class C Notes (in each case excluding
for such purposes the outstanding principal amount of any Notes held of record
or beneficially owned by TMCC, TMCRC or any of their Affiliates), may declare
all the Notes to be immediately due and payable, by a notice in writing to the
Issuer (and to the Indenture Trustee if given by Noteholders), and upon any such
declaration the unpaid principal amount of such Notes, together with accrued and
unpaid interest thereon through the date of acceleration, shall become
immediately due and payable.
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided: (i)
the Holders of Class A Notes representing at least 51% of the Outstanding Amount
of the Class A Notes, acting together as a single Class, without the consent of
any Holder of the Class B Notes or Class C Notes or (ii) after the Class A Notes
have been paid in full, the Holders of the Class B Notes representing a majority
of the Outstanding Amount of the Notes, without the consent of any Holder of the
Class C Notes or (iii) after the Class B Notes have been paid in full, the
Holders of the Class C Notes representing a majority of the Outstanding Amount
of the Notes, without the consent of any Holder of the Certificates; in each
case, by written notice to the Issuer and the Indenture Trustee, may rescind and
annul such declaration and its consequences if:
(a) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(i) all payments of principal of and interest on the
respective Class of Notes and all other amounts that would then be due
hereunder or in accordance with the terms of the Notes if the Event of
Default giving rise to such acceleration had not occurred; and
(ii) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the principal
of the Notes that has become due solely by such acceleration, have been cured or
waived as provided in Section 5.12.
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No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE.
(a) The Issuer covenants that if (i) Default is made (A) in the payment
of any interest on any Class A Note, so long as any amounts remain unpaid with
respect to the Class A Notes or (B) in the payment of any interest on any Class
B Note, after the Class A Notes have been paid in full or (C) in the payment of
any interest on any Class C Note, after the Class B Notes have been paid in
full, when the same becomes due and payable, and such default continues for a
period of five days, or (ii) default is made in the payment of the principal of
or any installment of the principal of any Note when the same becomes due and
payable (as described in the penultimate paragraph of Section 5.01 hereof), the
Issuer will, upon demand of the Indenture Trustee, pay to the Indenture Trustee,
for the benefit of the Holders of the Notes, the whole amount then due and
payable on such Class of Notes for principal and interest, with interest upon
the overdue principal and, to the extent payment at such rate of interest shall
be legally enforceable, upon overdue installments of interest at the rate borne
by the Notes and in addition thereto such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee and
its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.04, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders and,
incidentally thereto, the Certificateholders, by such appropriate Proceedings as
the Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Trust Estate, Proceedings under Title 11 of the United States Code or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, then, irrespective of whether the principal of any Notes
shall then be due and payable as therein expressed or by declaration or
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otherwise and irrespective of whether the Indenture Trustee shall have made any
demand pursuant to the provisions of this Section, the Indenture Trustee shall
be entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes and
Certificates, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee, except as a
result of negligence or bad faith) and of the Noteholders or
Certificateholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders or
Certificateholders and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Holders of Notes allowed in any
judicial proceedings relative to the Issuer, its creditors and its
property; and any trustee, receiver, liquidator, custodian or other
similar official in any such Proceeding is hereby authorized by each of
such Noteholders to make payments to the Indenture Trustee and, in the
event that the Indenture Trustee shall consent to the making of
payments directly to such Noteholders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to
the Indenture Trustee, each predecessor Indenture Trustee and their
respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee
and each predecessor Indenture Trustee except as a result of negligence
or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
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disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes and, incidentally thereto, for the
benefit of the Certificateholders.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.04. REMEDIES; PRIORITIES; INSOLVENCY OF SELLER.
(a) If (i) an Event of Default under Section 5.01(a) shall have
occurred and be continuing, (ii) an Event of Default under Section 5.01(b), (c)
or (d) shall have occurred and be continuing which results in the acceleration
of the Notes, or (iii) an Insolvency Event with respect to the Seller shall have
occurred and be continuing (whether or not the Trust Estate is sold in one or
more public or private sales as provided in Section 5.04(d)(iv)), the Indenture
Trustee will make payments on the Notes and Certificates as set forth in Section
5.06(d) of the Sale and Servicing Agreement, rather than pursuant to Section
5.06(c).
(b) If an Event of Default under Section 5.01(e), (f), (g) or (h) shall
have occurred and be continuing which results in the acceleration of the Notes
(whether or not the Trust Estate is sold in one or more public or private sales
as provided in Section 5.04(d)(iv)), the Indenture Trustee will make payments on
the Notes and Certificates as set forth in Section 5.06(e) of the Sale and
Servicing Agreement, rather than pursuant to Section 5.06(c).
(c) If the Indenture Trustee, in compliance with Section 5.04(a) or (b)
is deemed to have a conflict of interest under the TIA and is required to resign
as Indenture Trustee hereunder, the Indenture Trustee, pursuant to Section 6.10,
may appoint one or more indenture trustees to act separately hereunder for each
Class of Notes (in the case of the Class A Notes, such indenture trustee shall
act for all Class A Notes as if they comprised a single Class). In the event
separate indenture trustees are appointed for one or more Classes of Notes:
(i) so long as any amounts remain unpaid with respect to the
Class A Notes, only the Indenture Trustee for the Class A Noteholders
shall be entitled to waive any Event of Default or Servicer Default or
exercise any remedies under this Indenture;
(ii) after the Class A Notes have been paid in full, only the
Indenture Trustee for the Class B Noteholders shall be entitled to
waive any Event of Default or Servicer Default or exercise any remedies
under this Indenture; and
(iii) after the Class B Notes have been paid in full, the
Indenture Trustee for the Class C Noteholders shall be entitled to
waive any Event of Default or Servicer Default or exercise any remedies
under this Indenture.
(d) In accordance with Section 5.03, if an Event of Default shall have
occurred and be continuing, the Indenture Trustee may do one or more of the
following (subject to Section 5.05):
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(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Notes moneys adjudged
due;
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Trust
Estate;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the rights
and remedies of the Indenture Trustee and the Noteholders; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law; PROVIDED, HOWEVER, that,
notwithstanding anything in this Indenture to the contrary, the
Indenture Trustee may not sell or otherwise liquidate the Trust Estate
following an Event of Default, other than an Event of Default described
in Section 5.01(a), (b), (c) or (d), unless (A) the Holders of 100% of
the Outstanding Amount of the (a) Class A Notes so long as any amounts
remain unpaid with respect to such Notes or (b) after the Class A Notes
have been paid in full, the Class B Notes or (c) after the Class B
Notes have been paid in full, the Class C Notes, consent thereto or (B)
the proceeds of such sale or liquidation distributable to the
Noteholders are sufficient to discharge in full all amounts then due
and unpaid upon such Notes for principal and interest or (C) the
Indenture Trustee determines that the Trust Estate will not continue to
provide sufficient funds on an ongoing basis to make all payments of
principal of and interest on the Notes as they would have become due if
the Notes had not been declared due and payable, and the Indenture
Trustee obtains the consent of Holders of 66-2/3% of the Outstanding
Amount of the Class A Notes (acting together as a single class) if any
amounts remain unpaid with respect to such Notes or after the Class A
Notes have been paid in full, the Class B Notes or after the Class B
Notes have been paid in full, the Class C Notes. In determining such
sufficiency or insufficiency with respect to clause (B) and (C), the
Indenture Trustee may, but need not, obtain and rely upon an opinion of
an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section. At least 15 days before such
record date, the Issuer shall mail to each Noteholder and the Indenture Trustee
a notice that states the related record date, payment date and amount to be
paid.
(e) If an Insolvency Event occurs with respect to the Seller, the
Indenture Trustee (or the Indenture Trustee for the relevant Class of Notes,
pursuant to Section 5.04(c)) will within 90 days of such event sell the Trust
Estate or any portion thereof or rights or interest therein, at one or more
public or private sales called and conducted in any manner permitted by law and
in a commercially reasonable manner and on commercially reasonable terms;
PROVIDED, HOWEVER, that the Indenture Trustee (or the Indenture Trustee for the
relevant Class of Notes, pursuant to Section 5.04(c)) may not instruct the Owner
Trustee to sell or otherwise liquidate the Trust
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Estate in connection with such event if, within such 90 day period and prior to
such sale, the Holders of at least 51% of the Outstanding Amount of the (a)
Class A Notes so long as any amounts remain unpaid with respect to such Notes or
(b) after the Class A Notes have been paid in full, the Class B Notes or (c)
after the Class B Notes have been paid in full, the Class C Notes, (in each case
excluding from such action and calculation all Notes held by TMCC, TMCRC or any
of their Affiliates) notify the Indenture Trustee in writing that they
disapprove of such sale or liquidation and the termination of trusts created
hereby in connection therewith; and PROVIDED, FURTHER, that in connection with
any such sale the Indenture Trustee will afford the Holders of each Class of
Notes adequate advance notice and information as to the conduct of such sale
such that any such Holders (acting individually, as Classes, as a single Class
or otherwise) will be reasonably able to submit bids for the purchase of the
assets to be liquidated, and that the Indenture Trustee will consider any and
all such bids on the same bases that it considers any other bids submitted by
any other party or parties. The proceeds of such sale or liquidation (net of the
expenses incurred by the Indenture Trustee in connection with the conduct
thereof, which will be retained by the Indenture Trustee from such proceeds)
will be treated as collections and deposited into the Collection Account by the
Indenture Trustee for distribution to the Noteholders and Certificateholders in
accordance with the priorities specified in Section 5.06(d) of the Sale and
Servicing Agreement. The Indenture Trustee will have no liability with respect
to the amount of such proceeds or the adequacy thereof to make payments in full
of any Class of Notes or the Certificates. The Indenture Trustee may, but need
not, obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the commercial reasonableness of
the conduct of any such sale or liquidation and as to the expenses incurred by
the Indenture Trustee in connection therewith, the costs of obtaining which may
be retained by the Indenture Trustee from the proceeds of such sale or
liquidation.
SECTION 5.05. OPTIONAL PRESERVATION OF THE RECEIVABLES. Except as
provided in Section 5.04(d)(iv), if the Notes have been declared to be due and
payable under Section 5.02 following an Event of Default and such declaration
and its consequences have not been rescinded and annulled, the Indenture Trustee
may, unless otherwise directed by the Holders of at least 51% of the Outstanding
Amount of the (a) Class A Notes (acting together as a single Class) so long as
any amounts remain unpaid with respect to such Notes or (b) after the Class A
Notes have been paid in full, the Class B Notes or (c) after the Class B Notes
have been paid in full, the Class C Notes, (in each case excluding from such
action and calculation all Notes held by TMCC, TMCRC or any of their
Affiliates), but need not, elect to maintain possession of the Trust Estate and
direct the Issuer, Servicer and Administrator not to take steps to liquidate the
Receivables. It is the desire of the parties hereto and the Noteholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such desire into
account when determining whether or not to maintain possession of the Trust
Estate. In determining whether to maintain possession of the Trust Estate, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.06. LIMITATION OF SUITS. No Holder of any Note shall have any right to
institute any Proceeding, judicial or otherwise, with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default, and:
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(a) the Event of Default arises from the Servicer's failure to remit
payments when due or
(b) the Holders of not less than 25% of the Outstanding Amount of the
(i) Class A Notes, so long as any Class A Notes remain Outstanding (acting
together as a single class) or (ii) Class B Notes, after the Class A Notes have
been paid in full or (iii) Class C Notes, after the Class B Notes have been paid
in full, have made written request to the Indenture Trustee to institute such
Proceeding in respect of such Event of Default in its own name as Indenture
Trustee hereunder and have offered to the Indenture Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in complying with
such request and the Indenture Trustee for 30 days after its receipt of such
notice, request and offer of indemnity has failed to institute such Proceedings.
It is understood and intended that no one or more Holders of Notes
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided.
SECTION 5.07. UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST. Notwithstanding any other provisions in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Note on or
after the respective due dates thereof expressed in such Note and in this
Indenture (in each case with reference to the calculations to be made pursuant
to the Sale and Servicing Agreement) and to institute suit for the enforcement
of any such payment, and such right shall not be impaired without the consent of
such Holder; provided that each Holder or Owner of a Class B Note will be deemed
to have consented to any delay in the payment thereto of any interest due
thereon that is in accordance with the payment of amounts pursuant to Section
5.06 of the Sale and Servicing Agreement and to have waived its rightto
institute suit for enforcement of any such payment for so long as any Class A
Note is Outstanding, and each Holder or Owner of a Class C Note will be deemed
to have consented to any delay in the payment thereto of any interest due
thereon that is in accordance with the payment of amounts pursuant to Section
5.06 of the Sale and Servicing Agreement and to have waived its rightto
institute suit for enforcement of any such payment for so long as any Class B
Note is Outstanding.
SECTION 5.08. RESTORATION OF RIGHTS AND REMEDIES. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
SECTION 5.09. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be
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exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.10. DELAY OR OMISSION NOT A WAIVER. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
SECTION 5.11. CONTROL BY NOTEHOLDERS. The Holders of at least 51% of
the Outstanding Amount of the (i) Class A Notes, so long as any Class A Notes
remain Outstanding (acting together as a single class) or (ii) Class B Notes,
after the Class A Notes have been paid in full or (iii) Class C Notes, after the
Class B Notes have been paid in full, shall have the right to direct the time,
method and place of conducting any Proceeding for any remedy available to the
Indenture Trustee with respect to the Notes or exercising any trust or power
conferred on the Indenture Trustee; provided that:
(i) such direction shall not be in conflict with any rule of
law or with this Indenture;
(ii) any direction to the Indenture Trustee to sell or
liquidate the Trust Estate shall be by Holders of Notes representing
not less than percentages of the Outstanding Amount of the Notes of the
relevant Class set forth in Section 5.04 or 5.05, as
aplicable(excluding for such purposes the outstanding principal amount
of any Notes held of record or beneficially owned by TMCC, TMCRC or any
of their Affiliates); and
(iii) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction.
Notwithstanding the rights of Noteholders set forth in this Section,
subject to Sections 5.07 and 6.01, the Indenture Trustee need not take any
action that it determines might involve it in liability or might materially
adversely affect the rights of any Noteholders not consenting to such action.
SECTION 5.12. WAIVER OF PAST DEFAULTS. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.02 or the
liquidation or sale of the Trust Estate pursuant to Section 5.04, (i) the
Holders of Class A Notes representing at least 51% of the Outstanding Amount of
the Class A Notes (acting together as a single Class), without the consent of
any Holder of the Class B Notes or Class C Notes or (ii) after the Class A Notes
have been paid in full, the Holders of the Class B Notes representing at least
51% of the Outstanding Amount of the Notes, without the consent of any Holder of
the Class C Notes or (iii) after the Class B Notes have been paid in full, the
Holders of the Class C Notes representing at
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least 51% of the Outstanding Amount of the Notes, without the consent of any
Holder of the Certificates (excluding for such purposes the outstanding
principal amount of any Notes held of record or beneficially owned by TMCC,
TMCRC or any of their Affiliates); may waive any past Default, Event of Default
or Servicer Default and its consequences except a Default (a) in the deposit of
collections or other required amounts into the Collection Account, Principal
Distribution Account, Payahead Account or Reserve Fund, or (b) in respect of a
covenant or provision hereof that cannot be modified or amended without the
consent of the Holder of each Note. In the case of any such waiver, the Issuer,
the Indenture Trustee and the Holders of the Notes shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 5.13. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Note or Note Owner by such Holder's acceptance of
such Note or beneficial interest therein, as the case may be, shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 25% of the
Outstanding Amount of Notes, or (c) any suit instituted by any Noteholder for
the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture.
SECTION 5.14. WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.15. ACTION ON NOTES. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Indenture Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Indenture Trustee against the Issuer or by the
levy of any execution under such judgment upon any portion of the Trust Estate
or upon
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any of the assets of the Issuer. Any money or property collected by the
Indenture Trustee shall be applied in accordance with Section 5.04.
SECTION 5.16. PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS.
(a) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Issuer shall take all such lawful action
as the Indenture Trustee may request to compel or secure the performance and
observance by the Seller and the Servicer, as applicable, of each of their
obligations to the Issuer under or in connection with the Sale and Servicing
Agreement or by the Seller of its remedies under or in connection with the
Receivables Purchase Agreement, and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in connection
with the Sale and Servicing Agreement to the extent and in the manner directed
by the Indenture Trustee, including the transmission of notices of default on
the part of the Seller or the Servicer thereunder and the institution of legal
or administrative actions or proceedings to compel or secure performance by the
Seller or the Servicer of each of their respective obligations under the Sale
and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in writing
or by telephone, confirmed in writing promptly thereafter) of the Holders of
66-2/3% of the Outstanding Amount of the (1) Class A Notes, so long as any Class
A Notes remain Outstanding (acting together as a single class) or (2) Class B
Notes, after the Class A Notes have been paid in full or (3) Class C Notes,
after the Class B Notes have been paid in full (excluding for such purposes the
outstanding principal amount of any Notes held of record or beneficially owned
by TMCC, TMCRC or any of their Affiliates), shall exercise all rights, remedies,
powers, privileges and claims of the Issuer against the Seller or the Servicer
under or in connection with the Sale and Servicing Agreement, against the Seller
under or in connection with the Receivables Purchase Agreement, or against the
Administrator under the Administration Agreement, including the right or power
to take any action to compel or secure performance or observance by the Seller,
the Servicer or the Administrator, of each of their obligations to the Issuer
thereunder and to give any consent, request, notice, direction, approval,
extension, or waiver thereunder and any right of the Issuer to take such action
shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.01. DUTIES OF INDENTURE TRUSTEE.
(a) The Indenture Trustee, both prior to and after the occurrence of a
Servicer Default under the Sale and Servicing Agreement, undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture.
(b) The Indenture Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Indenture Trustee that shall be specifically
required to be furnished pursuant to any provision of this Indenture, shall
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examine them to determine whether they conform on their face to the requirements
of this Indenture.
(c) No provision of this Indenture shall be construed to relieve the
Indenture 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) the duties and obligations of the Indenture Trustee shall
be determined solely by the express provisions of this Indenture, the
Indenture Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Indenture, no implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee, the permissive right of the
Indenture Trustee to do things enumerated in this Indenture shall not
be construed as a duty and, in the absence of bad faith on the part of
the Indenture Trustee, the Indenture 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
Indenture Trustee and conforming on their face to the requirements of
this Indenture;
(ii) the Indenture Trustee shall not be personally liable for
an error of judgment made in good faith by a Trust Officer, unless it
shall be proved that the Indenture Trustee was negligent in performing
its duties in accordance with the terms of this Indenture; and
(iii) the Indenture 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 (i) the Holders of at
least 51% of the Outstanding Amount of the Class A Notes (acting
together as a single Class), without the consent of the Class B Notes
or the Class C Notes, or (ii) after the Class A Notes have been paid in
full, the Holders of at least 51% of the outstanding principal amount
of Class B Notes, without the consent of any holder of the Class C
Notes or (iii) after the Class B Notes have been paid in full, the
Holders of at least 51% of the outstanding principal amount of Class C
Notes (in each case excluding for such purposes the outstanding
principal amount of any Notes held of record or beneficially owned by
TMCC, TMCRC or any of their Affiliates) relating to the time, method
and place of conducting any proceeding for any remedy available to the
Indenture Trustee, or exercising any trust or power conferred upon the
Indenture Trustee under this Indenture. Moreover, if more than one
Indenture Trustee has been appointed, each Indenture Trustee shall owe
any and all fiduciary duties only to the Class or Classes of Notes on
whose behalf it shall have been appointed.
(d) The Indenture 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 Indenture, 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.
(e) All information obtained by the Indenture Trustee regarding the
Obligors and the Receivables contained in the Trust, whether upon the exercise
of its rights under this Indenture or
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otherwise, shall be maintained by the Indenture Trustee in confidence and shall
not be disclosed to any other Person, unless such disclosure is required by any
applicable law or regulation or pursuant to subpoena.
(f) Pursuant to Sections 3.02 and 4.08 of the Sale and Servicing
Agreement, in the event that a Trust Officer of the Indenture Trustee discovers
that a representation or warranty with respect to a Receivable was incorrect as
of the time specified with respect to such representation and warranty or that a
covenant of the Servicer has been breached, and such incorrectness or breach
materially and adversely affects the interests of the Issuer, the Indenture
Trustee shall give prompt written notice to the Servicer and the Owner Trustee
of such incorrectness.
SECTION 6.02. RIGHTS OF INDENTURE TRUSTEE.
(a) Except as otherwise provided in Section 6.01:
(i) the Indenture Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of an authorized signatory, 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 Indenture Trustee may consult with counsel and any
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 Indenture in good faith and in accordance with such Opinion
of Counsel;
(iii) the Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture or
the Sale and Servicing Agreement, or to institute, conduct or defend
any litigation under this Indenture, or in relation to this Indenture
or the Sale and Servicing Agreement, at the request, order or direction
of any of the Noteholders pursuant to the provisions of this Indenture
or the Sale and Servicing Agreement, unless such Noteholders shall have
offered to the Indenture Trustee reasonable security or indemnity
against the costs, expenses and liabilities that may be incurred
therein or thereby;
(iv) the Indenture Trustee shall not be personally liable for
any action taken, suffered or omitted by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(v) the Indenture Trustee shall not be bound to recalculate,
reverify, or 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 Notes
evidencing not less than 25% of the aggregate Outstanding Amount of the
(1) Class A Notes, so long as any Class A Notes remain Outstanding
(acting together as a single class) or (2) Class B
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Notes, after the Class A Notes have been paid in full or (3) Class C
Notes, after the Class B Notes have been paid in full (excluding for
such purposes the outstanding principal amount of any Notes held of
record or beneficially owned by TMCC, TMCRC or any of their
Affiliates); PROVIDED, HOWEVER, that if the payment within a reasonable
time to the Indenture Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Indenture Trustee, not reasonably assured to the
Indenture Trustee by the security afforded to it by the terms of this
Indenture, the Indenture 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 Administrator or, if paid by the Indenture Trustee, shall
be reimbursed by the Administrator 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 Indenture Trustee may execute any of the trusts or
powers under this Indenture or perform any duties under this Indenture
either directly or by or through agents or attorneys or a custodian.
(b) No Noteholder will have any right to institute any proceeding with
respect to this Indenture except upon satisfying the conditions set forth in
Section 5.06.
SECTION 6.03. INDIVIDUAL RIGHTS OF INDENTURE TRUSTEE. The Indenture
Trustee in its individual or any other capacity may become the Holder,
beneficial owner or pledgee of Notes and may otherwise deal with the Issuer or
its Affiliates with the same rights it would have if it were not Indenture
Trustee. Any Paying Agent, Note Registrar, co-registrar or co-paying agent may
do the same with like rights. However, in so doing the Indenture Trustee must
comply with Sections 6.11 and 6.12.
SECTION 6.04. INDENTURE TRUSTEE'S DISCLAIMER. The Indenture Trustee
makes no representations as to the validity or sufficiency of this Indenture
or of the Notes (other than the execution by the Indenture Trustee on behalf
of the Trust of, and the certificate of authentication on, the Notes), or of
the Certificates. The Indenture Trustee shall have no obligation to perform
any of the duties of the Servicer or the Administrator unless explicitly set
forth in this Indenture. The Indenture Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of the Notes or any Receivable, any ownership interest in any
Financed Vehicle, or the maintenance of any such ownership interest, or for
or with respect to the efficacy of the Trust or its ability to generate the
payments to be distributed to Noteholders under this Indenture, including
without limitation the validity of the assignment of the Receivables to the
Trust or of any intervening assignment; the existence, condition, location
and ownership of any Receivable or Financed Vehicle; the existence and
enforceability of any physical damage or credit life or credit disability
insurance; the existence and contents of any retail installment sales
contract or any computer or other record thereof; the completeness of any
retail installment sales contract; the performance or enforcement of any
retail installment sales contract; the compliance by the Issuer with any
covenant or the breach by the Issuer, Seller or Servicer of any warranty or
representation made under this Indenture or in any Basic Document or other
related document and the accuracy of any such warranty or representation
prior to the Indenture Trustee's receipt of notice or other discovery of any
noncompliance therewith or any breach thereof; the acts or omissions of the
Issuer,
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Seller or the Servicer; or any action by the Indenture Trustee taken at the
instruction of the Servicer, PROVIDED, HOWEVER, that the foregoing shall not
relieve the Indenture Trustee of its obligation to perform its duties under
this Indenture. Except with respect to a claim based on the failure of the
Indenture Trustee to perform its duties under this Indenture or based on the
Indenture Trustee's willful misconduct, bad faith or negligence, no recourse
shall be had for any claim based on any provision of this Indenture, the
Notes or Certificate or assignment thereof against the institution serving as
the Indenture Trustee in its individual capacity. The Indenture Trustee shall
not have any personal obligation, liability or duty whatsoever to any
Noteholder 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 Indenture. The Indenture Trustee shall
not be accountable for the use or application by the Issuer of any of the
Notes or of the proceeds of such Notes, or for the use or application of any
funds paid to the Servicer in respect of the Notes.
SECTION 6.05. NOTICE OF DEFAULTS. If a Trust Officer of the Indenture
Trustee knows that a Default has occurred and is continuing, the Indenture
Trustee shall mail to each Noteholder notice of such Default within 10 days of
the occurrence thereof. Except in the case of a Default in payment of principal
of or interest on any Note, the Indenture Trustee may withhold such notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Noteholders.
SECTION 6.06. REPORTS BY INDENTURE TRUSTEE TO HOLDERS. The Indenture
Trustee shall deliver or cause to be delivered annually to each Noteholder of
record such information as may be required to enable such holder to prepare its
federal and state income tax returns. The Indenture Trustee shall also deliver
or cause to be delivered annually to each Noteholder of record a report relating
to its eligibility and qualification to continue as Indenture Trustee under this
Indenture, any amounts advanced by it under this Indenture, the amount, interest
rate and maturity date of certain indebtedness owed by the Trust to such
Indenture Trustee, in its individual capacity, the property and funds physically
held by such Indenture Trustee in its capacity as such, and any action taken by
it that materially affects the Notes and that has not been previously reported.
SECTION 6.07. COMPENSATION AND INDEMNITY. The Issuer shall pay or shall
cause the Servicer to pay to the Indenture Trustee from time to time reasonable
compensation for its services. The Indenture Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall reimburse or shall cause the Servicer to reimburse the Indenture Trustee
for all reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Indenture Trustee's agents, counsel, accountants and
experts. The Administrator shall indemnify or shall cause the Servicer to
indemnify the Indenture Trustee against any and all loss, liability or expense
(including reasonable attorneys' fees) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder. The
Indenture Trustee shall notify the Administrator and the Servicer promptly of
any claim for which it may seek indemnity. Failure by the Indenture Trustee to
so notify the Administrator and the Servicer shall not relieve the Administrator
or the Servicer of its obligations hereunder. In case any such action is brought
against the Indenture Trustee under this Section 6.07 and it notifies the
Administrator of the commencement thereof, the Administrator will assume the
defense thereof, with counsel
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reasonably satisfactory to the Indenture Trustee (who may, unless there is, as
evidenced by an opinion of counsel to the Indenture Trustee stating that there
is an unwaivable conflict of interest, be counsel to the Administrator), and
neither the Administrator nor the Servicer will be liable to the Indenture
Trustee under this Section for any legal or other expenses subsequently incurred
by the Indenture Trustee in connection with the defense thereof, other than
reasonable costs of investigation. Neither the Administrator nor the Servicer
need reimburse any expense or indemnify against any loss, liability or expense
incurred by the Indenture Trustee through the Indenture Trustee's own willful
misconduct, negligence or bad faith.
The Administrator's payment obligations to the Indenture Trustee
pursuant to this Section shall survive the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default specified in
Section 5.01(g) or (h) or the Seller incurs expenses after the occurrence of an
Insolvency Event with respect to the Seller, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.08. REPLACEMENT OF INDENTURE TRUSTEE. The Indenture Trustee
may resign at any time by providing written notice of its resignation to the
Issuer. The Administrator, on behalf of the Issuer, may remove the Indenture
Trustee if:
(a) the Indenture Trustee fails to comply with Section 6.11;
(b) the Indenture Trustee is adjudged a bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(d) the Indenture Trustee otherwise becomes legally or practically
incapable of fulfilling its duties hereunder.
If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the
Administrator, on behalf of the Issuer, shall promptly appoint a successor
Indenture Trustee. No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee shall become effective until the
acceptance of appointment by the successor Indenture Trustee pursuant to this
Section 6.08.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee, to the Servicer and to the
Administrator. Thereupon the resignation or removal of the retiring Indenture
Trustee shall become effective, and the successor Indenture Trustee shall have
all the rights, powers and duties of the Indenture Trustee under this Indenture.
The successor Indenture Trustee shall mail a notice of its succession to
Noteholders. The retiring Indenture Trustee shall promptly transfer all property
held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 30 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Administrator or the
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Holders of a majority in Outstanding Amount of the Notes may petition any court
of competent jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may at any time thereafter petition any court of competent
jurisdiction for the removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's and the Administrator's obligations under Section
6.07 shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.09. SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another Person, the
resulting, surviving or transferee corporation without any further act shall be
the successor Indenture Trustee if such surviving Person or transferee
corporation or bank shall be otherwise qualified and eligible under Section
6.11. The Indenture Trustee shall provide the Issuer, the Servicer and the
Rating Agencies reasonable prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
SECTION 6.10. APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE INDENTURE
TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the Noteholders,
such title to the Trust Estate, or any part hereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
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(c) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and exercised or
performed by the Indenture 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 Indenture Trustee joining in and/or
directing such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed the Indenture 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 Estate 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 Indenture Trustee;
(i) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(ii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(d) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts thereupon conferred, shall be vested with the
estates or property specified in its instrument of appointment, either jointly
with the Indenture Trustee or separately, as may be provided therein, subject to
all the provisions of this Indenture, including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(e) Any separate trustee or co-trustee may at any time constitute the
Indenture 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 Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11. ELIGIBILITY; DISQUALIFICATION. The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition and it or its
parent shall have a long-term debt rating of Baa3 or better by Moody's or shall
otherwise be acceptable to Moody's. The Indenture Trustee shall comply with TIA
Section 310(b), including the optional provision permitted by the second
sentence of TIA Section 310(b)(9); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or indentures
under which other securities of the Issuer are outstanding if the requirements
for such exclusion set forth in TIA Section 310(b)(1) are met.
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SECTION 6.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.13. PENNSYLVANIA MOTOR VEHICLE SALES FINANCE ACT LICENSES.
The Indenture Trustee shall use its best efforts to maintain the
effectiveness of all licenses required under the Pennsylvania Motor Vehicle
Sales Finance Act in connection with this Indenture and the transactions
contemplated hereby until the lien and security interest of this Indenture
shall no longer be in effect in accordance with the terms hereof.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01. NOTE REGISTRAR TO FURNISH NAMES AND ADDRESSES OF
NOTEHOLDERS. The Note Registrar shall furnish or cause to be furnished to the
Indenture Trustee, Owner Trustee, Servicer or Administrator, within 15 days
after receipt by the Note Registrar of a written request therefrom, a list of
the names and addresses of the Noteholders of any Class as of the most recent
Record Date. If three or more Holders of Notes of any Class, or one or more
Holders of such Notes evidencing not less than 25% of the Outstanding Amount of
such Notes (hereinafter referred to as "Applicants"), apply in writing to the
Indenture Trustee, and such application states that the Applicants desire to
communicate with other Noteholders with respect to their rights under this
Indenture or under the Notes and such application is accompanied by a copy of
the communication that such Applicants propose to transmit, then the Indenture
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 Noteholders. Such Indenture Trustee may elect not to afford the requesting
Noteholders access to the list of Noteholders if it agrees to mail the desired
communication by proxy, on behalf of and at the expense of the requesting
Noteholders, to all Noteholders. Every Noteholder, by receiving and holding a
Note, agrees with the Indenture Trustee and the Issuer that none of the
Indenture Trustee, the Owner Trustee, the Issuer, the Servicer or the
Administrator shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Noteholders under this
Indenture, regardless of the source from which such information was derived.
If the Indenture Trustee shall cease to be the Note Registrar, then
thereafter the Administrator will furnish or cause to be furnished to the
Indenture Trustee not more than five days after the most recent Record Date or
at such other times as the Indenture Trustee reasonably may request in writing,
a list, in such form as the Indenture Trustee reasonably may require, of the
names and addresses of the Holders of Notes as of such Record Date.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
NOTEHOLDERS.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The
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Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.01 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 3.12(c).
SECTION 7.03. REPORTS BY ISSUER.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) that the Issuer
may be required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with the rules and regulations prescribed from time to time
by the Commission such additional information, documents and reports
with respect to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i) and
(ii) of this Section 7.03(a) and by rules and regulations prescribed
from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on September 30 of each year.
SECTION 7.04. REPORTS BY INDENTURE TRUSTEE. If required by TIA Section
313(a), within 60 days after each September 30 beginning with 1999, the
Indenture Trustee shall mail to each Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). The Indenture Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders shall
be filed by the Indenture Trustee with the Commission and each stock exchange,
if any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee if and when the Notes are listed on any stock exchange.
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.01. COLLECTION OF MONEY. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.02. TRUST ACCOUNTS.
(a) On or prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain, in the name of the Indenture Trustee, for
the benefit of the Noteholders and, to the extent set forth herein, the
Certificateholders, the Collection Account and Payahead Account as provided in
Section 5.01 of the Sale and Servicing Agreement.
(b) On or prior to the Closing Date, the Seller shall, pursuant to the
Securities Account Control Agreement, establish and maintain with the Indenture
Trustee, for the benefit of the Noteholders, the Reserve Account as provided in
Section 5.07 of the Sale and Servicing Agreement. Upon the execution and
delivery by the parties hereto of this Indenture, the Indenture Trustee will
deliver to the Securities Intermediary the Suspense Notice provided for in the
Securities Account Control Agreement. In connection with the termination of this
Indenture, the Indenture Trustee will deliver to the Securities Intermediary the
Rescission of Suspense Notice provided for in the Securities Account Control
Agreement.
SECTION 8.03. [RESERVED].
SECTION 8.04. GENERAL PROVISIONS REGARDING ACCOUNTS.
(a) So long as no Default or Event of Default shall have occurred and
be continuing, all or a portion of the funds in the Collection Account and
Payahead Account shall be invested in Eligible Investments and reinvested by the
Indenture Trustee at the written direction of the Servicer, subject to the
provisions of Section 5.01 of the Sale and Servicing Agreement. All income or
other gain from investments of moneys deposited in the Collection Account and
Payahead Account shall be deposited by the Indenture Trustee in the Collection
Account and paid to the Servicer as servicing compensation on each Payment Date,
and any loss resulting from such investments in excess of such income or gain
(against which such losses will first be applied) shall be charged to such
account. The Servicer will not direct the Indenture Trustee to make any
investment of any funds or to sell any investment held in the Collection Account
or Payahead Account unless the security interest granted and perfected in such
account will
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continue to be perfected in such investment or the proceeds of such sale, in
either case without any further action by any Person, and, in connection with
any direction to the Indenture Trustee to make any such investment or sale, if
requested by the Indenture Trustee, the Servicer shall deliver to the Indenture
Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such
effect.
(b) So long as no Default or Event of Default shall have occurred and
be continuing, all or a portion of the funds in the Reserve Account shall be
invested in Eligible Investments and reinvested by the Indenture Trustee (by
delivery to the Securities Intermediary of appropriate Entitlement Orders) at
the written direction of the Seller, subject to the provisions of Section 5.07
of the Sale and Servicing Agreement and the provisions of the Securities Account
Control Agreement. All income or other gain from investments of moneys deposited
in the Reserve Account shall be paid by the Indenture Trustee to the Seller on
each Payment Date (by delivery to the Securities Intermediary of appropriate
Entitlement Orders). Subject to the right of the Indenture Trustee to make
withdrawals therefrom, as directed by the Servicer, for the purposes and in the
amounts set forth in Section 5.06 of the Sale and Servicing Agreement, the
Reserve Account and all funds held therein shall be the property of the Seller
and not the property of the Trust, the Owner Trustee or the Indenture Trustee.
The Seller will grant to the Indenture Trustee, for the benefit of the
Noteholders, a security interest in all funds (including Eligible Investments,
but not the income from such investments) in the Reserve Account (including the
Reserve Account Initial Deposit) and the proceeds thereof, and the Indenture
Trustee shall have all of the rights of a secured party under the UCC with
respect thereto; provided that all income from the investment of funds in the
Reserve Account and the right to receive such income are retained by the Seller
and are not transferred, assigned or otherwise conveyed hereunder. The Seller
will not direct the Indenture Trustee to make any investment of any funds or to
sell any investment held in the Reserve Account unless the security interest
granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Seller shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect.
(c) Subject to Section 6.01(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in the Collection Account,
Payahead Account or Reserve Account resulting from any loss on any Eligible
Investment included therein at the direction of the Servicer or Seller, as the
case may be, except for losses attributable to the Indenture Trustee's failure
to make payments on such Eligible Investments issued by the Indenture Trustee,
in its commercial capacity as principal obligor and not as trustee, in
accordance with the terms thereof.
(d) If (i) the Servicer or Seller shall have failed to give investment
directions for any funds on deposit in the Collection Account, Payahead Account
and Reserve Account, as the case may be, to the Indenture Trustee by 11:00 a.m.
Eastern Time (or such other time as may be agreed by the Issuer and Indenture
Trustee) on any Business Day or (ii) a Default or Event of Default shall have
occurred and be continuing with respect to the Notes but the Notes shall not
have been declared due and payable pursuant to Section 5.02 or (iii) if such
Notes shall have been declared due and payable following an Event of Default,
but amounts collected or receivable from the Trust Estate are being applied in
accordance with Section 5.05 as if there had
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not been such a declaration, then the Indenture Trustee shall, to the fullest
extent practicable, invest and reinvest funds in the Trust Accounts in one or
more Eligible Investments specified in clause (h) of the definition of Eligible
Investments provided in the Sale and Servicing Agreement.
SECTION 8.05. RELEASE OF TRUST ESTATE.
(a) Subject to the payment of its fees and expenses pursuant to Section
6.07, the Indenture Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property from the lien of this
Indenture, or convey the Indenture Trustee's interest in the same, in a manner
and under circumstances that are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided in this Article VIII shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have
been paid, release any remaining portion of the Trust Estate that secured the
Notes from the lien of this Indenture and release to or to the order of the
Issuer or, in the case of the Reserve Account, to the Seller, entitled thereto
any funds then on deposit in the Collection Account, Payahead Account and
Reserve Account, as the case may be. The Indenture Trustee shall release
property from the lien of this Indenture pursuant to this Section 8.05(b) only
upon receipt of an Issuer Request accompanied by an Officer's Certificate, an
Opinion of Counsel and (if required by the TIA) Independent Certificates in
accordance with TIA Sections 314(c) and 314(d)(1) meeting the applicable
requirements of Section 11.01.
SECTION 8.06. OPINION OF COUNSEL. The Indenture Trustee shall receive
at least seven days notice when requested by the Issuer to take any action
pursuant to Section 8.05(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require, as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee,
stating the legal effect of any such action, outlining the steps required to
complete the same, and concluding that all conditions precedent to the taking of
such action have been complied with and such action will not materially and
adversely impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; provided, however, that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee in connection with any such
action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
Subject to Section 9.03, without the consent of the Holders of any Notes but
with prior notice to the Rating Agencies, the Issuer and the Indenture Trustee,
when authorized by an Issuer Order, at
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any time and from time to time, may enter into one or more indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(a) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and confirm
unto the Indenture Trustee any property subject or required to be subjected to
the lien of this Indenture, or to subject to the lien of this Indenture
additional property;
(b) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to the Issuer, and the assumption by any
such successor of the covenants of the Issuer herein and in the Notes contained;
(c) to add to the covenants of the Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein conferred upon
the Issuer;
(d) to convey, transfer, assign, mortgage or pledge any property to or
with the Indenture Trustee;
(e) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any other
provision herein or in any supplemental indenture or to make any other
provisions with respect to matters or questions arising under this Indenture or
in any supplemental indenture to the extent such action shall not adversely
affect the interests of the Holders of the Notes or the Certificates;
(f) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Article VI; or
(g) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this Indenture
under the TIA or under any similar federal statute hereafter enacted and to add
to this Indenture such other provisions as may be expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(h) SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS. Subject to
Section 9.02, the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, also may, with prior notice to the Rating Agencies and with the consent
of (i) the Holders of at least 51% of the Outstanding Amount of the Class A
Notes (without the consent of the Class B Notes or the Class C Notes), acting
together as a single Class, or (ii) after the Class A Notes have been paid in
full, the Holders of at least 51% of the outstanding principal amount of Class B
Notes (without the consent of any holder of the Class C Notes) or (iii) after
the Class B Notes have been paid in full, the Holders of at least 51% of the
outstanding principal amount of Class C Notes (in each case
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excluding for such purposes the outstanding principal amount of any Notes held
of record or beneficially owned by TMCC, TMCRC or any of their Affiliates), by
Action of such Holders delivered to the Issuer and the Indenture Trustee, enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture.
The Indenture Trustee may in its discretion determine whether or not
any Notes would be adversely affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith.
It shall not be necessary for any Action of Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Action shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.02. LIMITATIONS ON SUPPLEMENTAL INDENTURES. The Issuer and
the Indenture Trustee, in accordance with Section 9.01 above, may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Holders of
the Notes under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:
(a) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the Interest Rate
thereon, change the provisions of this Indenture relating to the application of
collections on, or the proceeds of the sale of, the Trust Estate to payment of
principal of or interest on the Notes, or change any place of payment where, or
the coin or currency in which, any Note or the interest thereon is payable, or
impair the right to institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor, to the extent
provided in Article V, to the payment of any such amount due on the Notes on or
after the respective due dates thereof;
(b) reduce the percentage of the Outstanding Amount of the Notes (or
the Notes of any Class, as applicable), the consent of the Holders of which is
required for any such supplemental indenture, or the consent of the Holders of
which is required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided for in
this Indenture;
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(c) modify or alter the provisions of the proviso to the definition of
the term "Outstanding" or;
(d) reduce the percentage of the Outstanding Amount of the Notes (or
the Notes of any Class, as applicable) required to direct the Indenture Trustee
to direct the Issuer to sell or liquidate the Trust Estate pursuant to Section
5.04;
(e) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional provisions of
this Indenture or the Basic Documents cannot be modified or waived without the
consent of the Holder of each Outstanding Note affected thereby;
(f) modify any of the provisions of this Indenture in such manner as to
affect the calculation of the amount of any payment of interest or principal due
on any Note on any Payment Date (including the calculation of any of the
individual components of such calculation);
(g) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Trust Estate or,
except as otherwise permitted or contemplated herein, terminate the lien of this
Indenture on any property at any time subject hereto or deprive the Holder of
any Note of the security provided by the lien of this Indenture; or
(h) modify or alter the provisions hereof regarding the voting of Notes
held by the Indenture Trustee, the Owner Trustee, TMCC or any of its affiliates
or the Trust;
and PROVIDED FURTHER, that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Noteholder.
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance therewith
with respect to the Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer and the Holders of the Notes
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
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SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
SECTION 9.06. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
TERMINATION OF THE TRUST
SECTION 10.01. TERMINATION OF THE TRUSTS CREATED BY INDENTURE.
(a) The trusts created hereby and the respective obligations and
responsibilities of the Issuer, the Administrator and the Indenture Trustee
shall terminate upon (i) the purchase as of any Payment Date by the Servicer, or
any successor to the Servicer, at its option of the Receivables primarily
comprising the corpus of the Owner Trust Estate as described in Section 10.02,
(ii) the payment to the Noteholders of all amounts required to be paid to them
pursuant to this Agreement and the release to the Owner Trustee of all remaining
amounts or investments on deposit in the Collection Account or Payahead Account
and the release to the Seller of the amounts held in the Reserve Account or
(iii) the maturity or liquidation of the last Receivable and the disposition of
all property held as part of the Owner Trust Estate; provided, however, that in
no event shall the trust created by this Indenture 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 Indenture. The Owner Trustee shall promptly
notify the Indenture Trustee and each Rating Agency of any prospective
termination pursuant to this Section.
(b) Notice of any termination, specifying the Payment Date upon which
the Noteholders must surrender their Notes to the Indenture Trustee for payment
of the final distribution and retirement of the Notes, shall be given promptly
by the Indenture Trustee (at the written direction of the Administrator) by
letter to Noteholders 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 Payment Date upon which final payment of the Notes
shall be made upon presentation and surrender of Notes at the office of the
Indenture Trustee therein specified, (ii) the amount of any such final payment
and (iii) if applicable, that the Record Date otherwise applicable to such
Payment Date is not applicable, payments being made only upon presentation and
surrender of the Notes at the office of the Indenture Trustee therein specified.
The Indenture Trustee shall give such notice to the Note Registrar (if other
than the Indenture Trustee) at the time such notice is given to Noteholders. In
the event such notice is given, the Seller, the
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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 5.02
of the Sale and Servicing Agreement, 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 Notes, the Indenture
Trustee shall cause to be distributed to Noteholders amounts distributable on
such Payment Date pursuant to Section 5.06 of the Sale and Servicing Agreement.
SECTION 10.02. OPTIONAL PURCHASE OF ALL RECEIVABLES. If the Servicer,
or any successor to the Servicer, shall notify the Owner Trustee and the
Indenture Trustee of its intention to exercise the option granted to it in the
Sale and Servicing Agreement to repurchase the outstanding Receivables primarily
comprising the Owner Trust Estate, then the Owner Trustee and Indenture Trustee
shall give written notice thereof to each Securityholder and the Rating Agencies
as soon as practicable after their receipt of notice from the Servicer. Upon
deposit by the Servicer or successor to the Servicer of the amount necessary to
effect such purchase of the corpus of the Owner Trust Estate, the Indenture
Trustee shall make the final distributions to the Noteholders and
Certificateholders as set forth in Section 5.06 of the Sale and Servicing
Agreement and Section 10.01 hereof and shall promptly transfer all of its right,
title and interest in and to any amounts or investments remaining on deposit in
the Trust Accounts (excluding any portion thereof necessary to make
distributions to Noteholders described in Section 3.03) to the Owner Trustee for
the benefit of the Certificateholders and release from the lien of this
Indenture all of the remaining Collateral. The Indenture Trustee shall execute,
deliver and file all agreements, certificates, instruments or other documents
necessary or reasonably requested by the Owner Trustee in order to effect such
release and the transfer to the Owner Trustee of the Collateral.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
(a) Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture, the Issuer
shall, upon written request therefor from the Indenture Trustee, furnish to the
Indenture Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
this Section, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture, no such written request from the Indenture Trustee need be
furnished (and only such expressly required documents need be delivered in
connection therewith).
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
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(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that is to be made
the basis for the release of any property or securities subject to the
lien of this Indenture, the Issuer shall, in addition to any obligation
imposed in Section 11.01(a) or elsewhere in this Indenture, furnish to
the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of each person signing such certificate as to the fair
value (within 90 days of such deposit) to the Issuer of the Collateral
or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signatory thereof as to the matters described in clause
(i) above, the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of all other such
securities made the basis of any such withdrawal or release since the
commencement of the then-current fiscal year of the Issuer, as set
forth in the certificates delivered pursuant to clause (i) above and
this clause (ii), is 10% or more of the Outstanding Amount of the
Notes, but such a certificate need not be furnished with respect to any
securities so deposited, if the fair value thereof to the Issuer as set
forth in the related Officer's Certificate is less than $25,000 or less
than one percent of the Outstanding Amount of the Notes.
(iii) Whenever any property or securities are to be released
from the lien of this Indenture, the Issuer shall also furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such release) of the property or securities proposed
to be released and stating that in the opinion of such person the
proposed release will not impair the security under this Indenture in
contravention of the provisions hereof.
SECTION 11.02. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such
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Person may certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, the Seller, the Issuer or the
Administrator, stating that the information with respect to such factual matters
is in the possession of the Servicer, the Seller, the Issuer or the
Administrator, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.03. ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and except as herein otherwise expressly provided
such action shall become effective when such instrument or instruments are
delivered to the Indenture Trustee, and, where it is hereby expressly required,
to the Issuer. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Action" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01) conclusive in
favor of the Indenture Trustee and the Issuer, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
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(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
SECTION 11.04. NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER AND RATING
AGENCIES. Any request, demand, authorization, direction, notice, consent, waiver
or Action of Noteholders or other documents provided or permitted by this
Indenture shall be in writing and if such request, demand, authorization,
direction, notice, consent, waiver or Action of Noteholders is to be made upon,
given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if in writing and mailed first-class,
postage prepaid to the Issuer addressed to: Toyota Auto Receivables 1999-A Owner
Trust, 19001 South Western Avenue, Torrance, California 90509, Attention:
Treasury Department, Vice President, Treasury, or at any other address
previously furnished in writing to the Indenture Trustee by the Issuer or the
Administrator. The Issuer shall promptly transmit any notice received by it from
the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally delivered
or mailed by certified mail, return receipt requested, to (i) in the case of
Moody's, at the following address: Moody's Investors Service, Inc., ABS
Monitoring Department, 99 Church Street, New York, New York 10007, (ii) in the
case of Standard & Poor's, at the following address: Standard & Poor's Ratings
Group, 26 Broadway (15th Floor), New York, New York 10004, Attention of Asset
Backed Surveillance Department; or as to each of the foregoing, at such other
address as shall be designated by written notice to the other parties.
SECTION 11.05. NOTICES TO NOTEHOLDERS; WAIVER. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) (a) in the case
of Book-Entry Notes, upon delivery to the Clearing Agency in writing and (b) in
the case of definitive Notes, when mailed, first-class, postage prepaid to each
Noteholder affected by such event, at his address as it appears on the Note
Register, in each case being delivered or mailed, as the case may be, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
57
<PAGE>
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
SECTION 11.06. ALTERNATE PAYMENT AND NOTICE PROVISIONS. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the Issuer
may enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture for such
payments or notices. The Issuer will furnish to the Indenture Trustee a copy of
each such agreement and the Indenture Trustee will cause payments to be made and
notices to be given in accordance with such agreements.
SECTION 11.07. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.09. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors, co-trustees and agents.
SECTION 11.10. SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Indenture 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
58
<PAGE>
Indenture and shall in no way affect the validity or enforceability of the other
provisions of this Indenture or of the Notes or the Certificates or the rights
of the Holders thereof.
SECTION 11.11. BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Administrator, the Servicer and the
Noteholders, and any other party secured hereunder, and any other Person with an
ownership interest in any part of the Trust Estate, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 11.12. GOVERNING LAW. This indenture shall be governed by and
construed in accordance with the laws of the state of New York, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
SECTION 11.13. COUNTERPARTS. This Indenture 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 11.14. RECORDING OF INDENTURE. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
SECTION 11.15. TRUST OBLIGATION. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or Certificates or under this Indenture or
any certificate or other writing delivered in connection herewith or therewith,
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any Certificateholder or other owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee in its
individual capacity, any Certificateholder or other owner of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee, in their
capacities as such, have no such obligations in their individual capacity) and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity. For all purposes of this Indenture, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of Article
VI, VII and VIII of the Trust Agreement.
SECTION 11.16. NO PETITION. The Indenture Trustee, by entering into
this Indenture, and each Noteholder, by accepting a Note, hereby covenant and
agree that they will not at any time institute against the Seller or the Issuer,
or join in any institution against the
59
<PAGE>
Seller or the Issuer of, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations relating
to the Notes, the Certificates or any of the Basic Documents.
SECTION 11.17. INSPECTION. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause (at the expense of the requesting party) such books to be audited by
Independent certified public accountants, and to discuss the Issuer's affairs,
finances and accounts with the Issuer's officers, employees, and Independent
certified public accountants, all at such reasonable times and as often as may
be reasonably requested. The Indenture Trustee shall and shall cause its
representatives to hold in confidence all such information except to the extent
disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
60
<PAGE>
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized and duly attested, all as of the day and year first above written.
TOYOTA AUTO RECEIVABLES 1999-A OWNER
TRUST
By: U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By: /s/ EDWARD F. KACHINSKI
------------------------------------
Name: Edward F. Kachinski
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ EDWARD F. KACHINSKI
------------------------------------
Name: Edward F. Kachinski
Title: Vice President
S-1
<PAGE>
STATE OF ____________________
COUNTY OF __________________
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared , known to me to be the person
and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said U.S. BANK NATIONAL
ASSOCIATION, not in its individual capacity but as Owner Trustee of the TOYOTA
AUTO RECEIVABLES 1999-A OWNER TRUST, a Delaware business trust, and that such
person executed the same as the act of said business trust for the purpose and
consideration therein expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of July, 1999.
---------------------------------------------------
Notary Public in and for the State of ____________
(Seal)
My commission expires:
- ----------------------------
<PAGE>
STATE OF ____________________
COUNTY OF __________________
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared , known to me to be the person
and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said U.S. BANK NATIONAL
ASSOCIATION, not in its individual capacity but as Indenture Trustee and
Securities Intermediary in connection with the Toyota Auto Receivables 1999-A
Owner Trust, a Delaware business trust, and that such person executed the same
as the act of said business trust for the purpose and consideration therein
expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of July, 1999.
---------------------------------------------------
Notary Public in and for the State of ____________
(Seal)
My commission expires:
- ----------------------------
<PAGE>
EXHIBIT A
(Form of Class A-1 Note, Class A-2 Note, Class A-3 Note,
Class B Note and Class C Note)
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE 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.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE IS NOT AN OBLIGATION OF, AND WILL NOT BE INSURED OR
GUARANTEED BY, ANY GOVERNMENTAL AGENCY OR TOYOTA MOTOR CREDIT RECEIVABLES
CORPORATION, TOYOTA MOTOR CREDIT CORPORATION, TOYOTA MOTOR SALES, U.S.A., INC.,
ANY TRUSTEE OR ANY OF THEIR AFFILIATES. THE PRINCIPAL AND INTEREST ON THIS NOTE
IS PAYABLE SOLELY FROM PAYMENTS ON THE RECEIVABLES AND AMOUNTS ON DEPOSIT IN THE
RESERVE ACCOUNT.
No._____ $__________
TOYOTA AUTO RECEIVABLES 1999-A OWNER TRUST
CLASS [A-1][A-2][A-3][B][C] ____% ASSET BACKED NOTES
Toyota Auto Receivables 1999-A Owner Trust, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of _______________ DOLLARS ($__________)
payable on each Payment Date in an amount equal to the result obtained by
multiplying (i) a fraction the numerator of which is $[INSERT INITIAL PRINCIPAL
AMOUNT OF NOTE] and the denominator of which is $[INSERT INITIAL CLASS BALANCE]
by (ii) the aggregate amount, if any, payable from the Collection Account or
Principal Distribution Account in respect of principal on the Class
[A-1][A-2][A-3][B][C] Notes pursuant to Section 3.01 of the Indenture dated as
of July 1, 1999, between the Issuer and U.S. Bank National Association, a
national banking association, as Indenture Trustee
A-1
<PAGE>
(the "Indenture Trustee") and Sections 5.06(c), (d) and (e) of the Sale and
Servicing Agreement dated as of July 1, 1999, between the Issuer, TMCRC, as
Seller, and TMCC, as Servicer (which amounts will be limited to the portion of
Available Collections available to make the payments specified in such
Sections); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Payment Date occurring in
_______ (the "Class [A-1][A-2][A-3][B][C] Final Scheduled Payment Date") and the
Payment Date described in Section 10.01 of the Indenture. Capitalized terms used
but not defined herein have the meanings ascribed thereto in the Indenture and
the Sale and Servicing Agreement, as the case may be.
The Issuer will pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.01 of the Indenture. Interest on this Note will accrue for each Payment Date
during the calendar month preceding such Payment Date (or, in the case of the
first Payment Date, from the Closing Date). Interest will be computed on the
basis specified in the Indenture for each Interest Period. Such principal of and
interest on this Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note is payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
A-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: July 22, 1999
TOYOTA AUTO RECEIVABLES 1999-A
OWNER TRUST
By: U.S. BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement,
By:
----------------------------------------
Authorized Signatory
A-3
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: July 22, 1999
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee,
By:
----------------------------------------
Authorized Signatory
A-4
<PAGE>
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its ____% Asset Backed Notes, Class [A-1][A-2][A-3][B][C] (herein
called the "Class [A-1][A-2][A-3] Notes"), all issued under the Indenture, to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Class
[A-1][A-2][A-3][B][C] Notes are subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the
Class B Notes and the Class C Notes (collectively, the "Notes") are and will be
equally and ratably secured by the collateral pledged as security therefor as
provided in the Indenture.
Principal of the Class [A-1][A-2][A-3][B][C] Notes will be payable on
each Payment Date in an amount described in the Indenture. "Payment Date" means
the fifteenth day of each month, or, if any such date is not a Business Day, the
next succeeding Business Day, commencing August 16, 1999.
Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or (i) the
Holders of at least 51% of the Outstanding Amount of the Class A Notes, acting
together as a single class (without the consent of the Class B Notes or the
Class C Notes) or (ii) after the Class A Notes have been paid in full, the
Holders of at least 51% of the outstanding principal amount of Class B Notes
(without the consent of any holder of the Class C Notes) or (iii) after the
Class B Notes have been paid in full, the Holders of at least 51% of the
outstanding principal amount of Class C Notes (in each case excluding for such
purposes the outstanding principal amount of any Notes held of record or
beneficially owned by TMCC, TMCRC or any of their Affiliates) have declared the
Notes to be immediately due and payable in the manner provided in Section 5.02
of the Indenture or following the termination or liquidation of the Trust Estate
in connection with the exercise by the Servicer of its option to purchase the
Receivables pursuant to Section 9.01 of the Sale and Servicing Agreement and
Section 10.02 of the Indenture or within 90 days of certain Insolvency Events
with respect to TMCRC. All principal payments on the Class [A-1][A-2][A-3][B][C]
Notes shall be made pro rata to the Class [A-1][A-2][A-3][B][C] Noteholders
entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be paid to the Person in whose name such Note (or
one or more Predecessor Notes) is registered on the Record Date. With respect to
Notes registered on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee, except for the final installment of principal payable with respect to
such Note on a Payment Date or on the applicable Final Scheduled Payment Date,
which shall be payable as provided below. Such payment will be made by check
mailed first-class postage prepaid to such Person's address as it appears on the
Note Register on such Record Date or by wire transfer to the account specified
by the registered holder of any Note with a face amount of at least $10,000,000.
Any reduction in the principal amount of this Note (or any one or more
Predecessor Notes) effected by any payments made on any Payment Date shall be
binding upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu
A-5
<PAGE>
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in The City of New York.
The Issuer shall pay interest on overdue installments of interest at
the Class [A-1][A-2][A-3][B][C] Rate to the extent lawful.
[FOR CLASS B AND CLASS C NOTES] Default in the payment of interest on
this Class [B][C] Note is not an Event of Default under the Indenture so long as
any Class [A][B] Notes are Outstanding. By acceptance of this Class [B][C] Note
or any beneficial interest herein, you are deemed to have consented to the delay
in payment of interest on such Class [B][C] Note and waived your rights to
institute suit for enforcement of any such payment to the extent described in
the Indenture.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee as set forth in Section 2.04 of the Indenture, and thereupon
one or more new Notes of authorized denominations and in the same aggregate
principal amount will be issued to the designated transferee or transferees. No
service charge will be charged for any registration of transfer or exchange of
this Note, but the Issuer may be required to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee, in their capacities as such, have no such obligations in their
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity. The Holder of this Note by its
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
A-6
<PAGE>
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Noteholder or Note Owner will
not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by acceptance of a Note (and each
Note Owner by acceptance of a beneficial interest in a Note), agrees to treat
the Notes for federal, state and local income, single business and franchise tax
purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture, in some
cases without the consent of the Holders of any Class of Notes and in other
cases with the consent of Holders of only certain Classes of Notes. Section 5.12
of the Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Outstanding Amount of the Notes of the
Class or Classes specified therein, on behalf of the Holders of all the Notes,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one or more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
A-7
<PAGE>
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
A-8
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:______
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
- --------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints , attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated: */
------------------
Signature Guaranteed:
*/
------------------
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-9
<PAGE>
EXHIBIT B
(Form of Note Depository Agreement)
<PAGE>
EXHIBIT 4.3
RECEIVABLES PURCHASE AGREEMENT
TOYOTA MOTOR CREDIT CORPORATION,
as Seller
and
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION,
as Purchaser
Dated as of July 1, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
ARTICLE I.
DEFINITIONS
<S> <C> <C>
SECTION 1.01 Definitions...........................................................................1
SECTION 1.02 Other Definitional Provisions.........................................................4
ARTICLE II.
CONVEYANCE OF RECEIVABLES
SECTION 2.01 Conveyance of Receivables.............................................................4
SECTION 2.02 Representations and Warranties of the Seller and the Purchaser........................5
SECTION 2.03 Representations and Warranties of the Seller as to the Receivables....................8
SECTION 2.04 Covenants of the Seller..............................................................12
ARTICLE III.
PAYMENT OF RECEIVABLES PURCHASE PRICE
SECTION 3.01 Payment of Receivables Purchase Price................................................13
ARTICLE IV.
TERMINATION
SECTION 4.01 Termination..........................................................................13
ARTICLE V.
MISCELLANEOUS PROVISIONS
SECTION 5.01 Amendment............................................................................13
SECTION 5.02 Protection of Right, Title and Interest to Receivables...............................13
SECTION 5.03 Governing Law........................................................................14
SECTION 5.04 Notices..............................................................................14
SECTION 5.05 Severability of Provisions...........................................................14
SECTION 5.06 Assignment...........................................................................14
SECTION 5.07 Further Assurances...................................................................15
SECTION 5.08 No Waiver; Cumulative Remedies.......................................................15
SECTION 5.09 Counterparts.........................................................................15
SECTION 5.10 Third-Party Beneficiaries............................................................15
SECTION 5.11 Merger and Integration...............................................................15
SECTION 5.12 Headings.............................................................................15
</TABLE>
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<TABLE>
<S> <C> <C>
SECTION 5.13 Indemnification......................................................................15
SECTION 5.14 Merger or Consolidation of, or Assumption of the Obligations of
the Seller...........................................................................16
Schedule A - Schedule of Receivables............................................................................A-1
</TABLE>
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RECEIVABLES PURCHASE AGREEMENT, dated as of July 1, 1999, 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 Purchaser, Issuer and Indenture Trustee:
ARTICLE I.
DEFINITIONS
SECTION 1.01 DEFINITIONS. Whenever used in this Agreement, the following words
and phrases shall have the following meanings:
"AGREEMENT" shall mean this Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"AMOUNT FINANCED" in respect of a Receivable means the aggregate amount
advanced under such Receivable toward the purchase price of the related Financed
Vehicle and any related costs, including but not limited to accessories,
insurance premiums, service and warranty contracts and other items customarily
financed as part of retail automobile and light duty truck installment sale
contracts.
"ANNUAL PERCENTAGE RATE" or "APR" of a Receivable means the annual rate
of finance charges specified in such Receivable.
"CLOSING DATE" shall mean July 22, 1999.
"CUTOFF DATE" shall mean July 1, 1999.
"DEALER RECOURSE" means, with respect to a Receivable, all recourse
rights against the Dealer which originated the Receivable, and any successor
Dealer.
"DEFERRED PREPAYMENT" means, with respect to a Precomputed Receivable
and a Collection Period, the aggregate amount, if any, of Payments Ahead
remitted to the Servicer in respect of such Receivable during one or more prior
Collection Periods and currently held by the Servicer or in the Payahead
Account.
"FINANCED VEHICLE" means, with respect to a Receivable, the related
automobile or light duty truck, as the case may be, together with all accessions
thereto, securing the related Obligor's indebtedness under such Receivable.
"INDENTURE TRUSTEE" shall mean U.S. Bank National Association, as
indenture trustee under the Indenture, or any successor trustee thereunder.
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"LIEN" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind other than tax liens, mechanics' liens and any liens
that attach to a Receivable or any property, as the context may require, by
operation of law.
"LIQUIDATION PROCEEDS" means, with respect to a Defaulted Receivable,
all amounts realized with respect to such Receivable from whatever sources
(including, without limitation, proceeds of any Insurance Policy), net of
amounts that are required by law or such Receivable to be refunded to the
related Obligor.
"OBLIGOR" on a Receivable means the purchaser or co-purchasers of the
related Financed Vehicle purchased in part or in whole by the execution and
delivery of such Receivable or any other Person who owes or may be liable for
payments under such Receivable.
"OWNER TRUSTEE" shall mean U.S. Bank National Association, as owner
trustee under the Trust Agreement, or any successor trustee thereunder.
"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.
"RECEIVABLE FILE" means with respect to each Receivable:
(a) the fully executed original of the Receivable;
(b) documents evidencing or related to any Insurance Policy;
(c) the original credit application of each Obligor, fully
executed by such Obligor on TMCC's customary form, or on a form
approved by TMCC, for such application;
(d) the original certificate of title (or evidence that such
certificate of title has been applied for) or such documents that the
Servicer shall keep on file, in accordance with TMCC's customary
procedures, evidencing the security interest in the related Financed
Vehicle; and
(e) any and all other documents that the Seller or the
Servicer, as the case may be, shall keep on file, in accordance with
its customary procedures, relating to such Receivable or the related
Obligor or Financed Vehicle.
"RECEIVABLES PURCHASE PRICE" shall mean $984,068,241.84].
"RELEASED WARRANTY AMOUNT" means, with respect to a Payment Date and to
a Warranty Receivable, the Deferred Prepayment, if any, for such Warranty
Receivable.
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"SALE AND SERVICING AGREEMENT" shall mean the Sale and Servicing
Agreement dated as of July 1, 1999, by and among Toyota Auto Receivables 1999-A
Owner Trust, as issuer, Toyota Motor Credit Receivables Corporation, as seller,
and Toyota Motor Credit Corporation, as servicer, and, as to which, the
Indenture Trustee is a third party beneficiary.
"SECURITIES ACCOUNT CONTROL AGREEMENT" shall have the meaning ascribed
thereto in the Sale and Servicing Agreement.
"SELLER" shall mean Toyota Motor Credit Corporation, in its capacity as
seller of the Receivables under this Agreement, and its successors and assigns.
"SCHEDULE OF RECEIVABLES" means the schedule of receivables described
in Section 2.01(a) and attached as Schedule A hereto.
"TRUST" means the Toyota Auto Receivables 1999-A Owner Trust, a
Delaware business trust.
"TRUST AGREEMENT" means the Amended and Restated Trust Agreement dated
as of July 1, 1999, by and between Toyota Motor Credit Receivables Corporation,
as depositor, U.S. Bank National Association, as Owner Trustee, and First Union
Trust Company, National Association, as Delaware Co-trustee.
"WARRANTY PURCHASE PAYMENT" means, with respect to a Payment Date and
to (1) a Warranty Receivable which is a Precomputed Receivable repurchased by
the Seller as of the close of business on the last day of the related Collection
Period, (a) the sum of (i) all Scheduled Payments on such Receivable due after
the last day of such Collection Period, (ii) all past due Scheduled Payments for
which an Advance has not been made, (iii) an amount equal to any reimbursement
of Outstanding Advances made pursuant to Section 5.04(b) of the Sale and
Servicing Agreement with respect to such Receivable and (iv) an amount equal to
all other Outstanding Advances made pursuant to Section 5.04(c) of the Sale and
Servicing Agreement with respect to such Receivable, minus (b) the sum of (i)
any Rebate (except to the extent specified in Section 4.03) and (ii) any other
proceeds in respect of such Receivable previously received (to the extent
applied to reduce the Principal Balance of such Receivable on such Payment
Date), and (2) a Warranty Receivable which is a Simple Interest Receivable
repurchased by the Seller as of the close of business on the last day of the
related Collection Period, the sum of (a) the unpaid principal balance owed by
the Obligor in respect of such Receivable plus (b) interest on such unpaid
principal balance at a rate equal to the related APR to the last day in the
related Collection Period.
"WARRANTY RECEIVABLE" means a Receivable purchased by the Seller
pursuant to Section 2.03(c).
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SECTION 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) All capitalized terms not otherwise defined in this
Agreement shall have the defined meanings used in the Sale and Servicing
Agreement or Trust Agreement, as the case may be.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section, subsection
and Schedule references contained in this Agreement are references to Sections,
subsections and Schedules in or to this Agreement unless otherwise specified;
and the word "including" means including without limitation.
ARTICLE II.
CONVEYANCE OF RECEIVABLES
SECTION 2.01 CONVEYANCE OF RECEIVABLES.
(a) Subject to the terms and conditions of this Agreement, on
the Closing Date the Seller agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the Seller, without recourse (subject to the Seller's
obligations hereunder):
(i) all right, title and interest of the Seller in and to the
Receivables listed in the Schedule of Receivables and all
monies due thereon or paid thereunder or in respect thereof
(including proceeds of the repurchase of Receivables by the
Seller pursuant to Section 2.03(c)) on or after the Cutoff
Date;
(ii) the interest of the Seller in the security interests in
the Financed Vehicles granted by the Obligors pursuant to the
Receivables and any accessions thereto;
(iii) the interest of the Seller in any proceeds of any
physical damage insurance policies covering Financed Vehicles
and in any proceeds of any credit life or credit disability
insurance policies relating to the Receivables or the
Obligors;
(iv) the interest of the Seller in any Dealer Recourse;
(v) the right of the Seller to realize upon any property
(including the right to receive future Liquidation Proceeds)
that shall have secured a Receivable and have been repossessed
in accordance with the terms thereof; and
(vi) all proceeds of the foregoing.
It is the intention of the Seller that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables from
the Seller to the Purchaser and the beneficial interest in and title to the
Receivables shall not be part of the Seller's estate in the event of the filing
of a bankruptcy petition by or against the Seller under any bankruptcy law. The
Seller agrees to execute and file all filings (including filings under the UCC)
necessary in
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any jurisdiction to provide third parties with notice of the sale of the
Receivables pursuant to this Agreement and to perfect such sale under the UCC.
(b) In connection with the foregoing conveyance, the Seller agrees to
record and file in California, at its own expense, a financing statement with
respect to the Receivables necessary to provide third parties with notice of the
conveyance hereunder and to perfect the sale of the Receivables to the
Purchaser, and the proceeds thereof (and any continuation statements as are
required by applicable state law), and to deliver a file-stamped copy of each
such financing statement (or continuation statement) or other evidence of such
filings (which may, for purposes of this Section, consist of telephone
confirmation of such filing with the file stamped copy of each such filing to be
provided to the Purchaser in due course), as soon as is practicable after
receipt by the Seller thereof.
In connection with the foregoing conveyance, the Seller further agrees,
at its own expense, on or prior to the Closing Date (i) to annotate and indicate
in its computer files that the Receivables have been transferred to the
Purchaser pursuant to this Agreement, (ii) to deliver to the Purchaser a
computer file or printed or microfiche list containing a true and complete list
of all such Receivables, identified by account number and by the Principal
Balance of each Receivable as of the Cutoff Date, which file or list shall be
marked as Schedule A to this Agreement and is hereby incorporated into and made
a part of this Agreement and (iii) to deliver the Receivable Files to or upon
the order of the Purchaser.
SECTION 2.02 REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE
PURCHASER.
(a) The Seller hereby represents and warrants to the Purchaser
as of the date of this Agreement and the Closing Date that:
(i) ORGANIZATION AND GOOD STANDING. The Seller shall have been
duly organized and shall be validly existing as a corporation
in good standing under the laws of the State of California,
with corporate power and authority to own its properties and
to conduct its business as such properties shall be currently
owned and such business is presently conducted, and had at all
relevant times, and shall now have, corporate power, authority
and legal right to acquire, own and sell the Receivables.
(ii) DUE QUALIFICATION. The Seller shall be duly qualified to
do business as a foreign corporation in good standing, and
shall have obtained all necessary licenses and approvals in
all jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such
qualifications and where the failure to so qualify will have a
material adverse effect on the ability of the Seller to
conduct its business or perform its obligations under this
Agreement.
(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.
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(iv) BINDING OBLIGATION. This Agreement shall constitute a
legal, valid and binding obligation of the Seller enforceable
in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws affecting creditors' rights generally
or by general principles of equity.
(v) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the
terms hereof shall not conflict with, result in any breach of
any of the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the articles
of incorporation or bylaws of the Seller, or conflict with or
breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default
under, any indenture, agreement or other instrument to which
the Seller is a party or by which it shall be bound; nor
result in the creation or imposition of any lien upon any of
its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than the Basic
Documents); nor violate any law or, to the best of the
Seller's knowledge, any order, rule or regulation applicable
to the Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its
properties; which breach, default, conflict, lien or violation
would have a material adverse effect on the earnings, business
affairs or business prospects of the Seller.
(vi) NO PROCEEDINGS. There is no action, suit or proceeding
before or by any court or governmental agency or body,
domestic or foreign, now pending, or to the Seller's
knowledge, threatened, against or affecting the Seller: (i)
asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any
determination or ruling that might materially and adversely
effect the performance by the Seller of its obligations under,
or the validity or enforceability of, this Agreement.
(b) The Purchaser hereby represents and warrants to the Seller
as of the date of this Agreement and the Closing Date that:
(i) ORGANIZATION AND GOOD STANDING. The Purchaser shall have
been duly organized and shall be validly existing as a
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 and where
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the failure to so qualify will have a material adverse effect
on the ability of the Purchaser to conduct its business or
perform its obligations under this Agreement.
(iii) POWER AND AUTHORITY. The Purchaser shall have the
corporate power and authority to execute and deliver this
Agreement and to carry out its terms; the Purchaser shall have
full corporate power and authority to purchase the property to
be purchased and shall have duly authorized such purchase; and
the execution, delivery and performance of this Agreement
shall have been duly authorized by the Purchaser by all
necessary 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 the Basic
Documents), nor violate any law or, to the best of the
Purchaser's knowledge, any order, rule or regulation
applicable to the Purchaser of any court or of any federal or
state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the
Purchaser or its properties; which breach, default, conflict,
Lien or violation would have a material adverse affect on the
earnings, business affairs or business prospects of the
Purchaser.
(vi) NO PROCEEDINGS. There is no action, suit or proceeding
before or by any court or governmental agency or body,
domestic or foreign, now pending, or to the Purchaser's
knowledge, threatened, against or affecting the Purchaser: (i)
asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any
determination or ruling that might materially and adversely
affect the performance by the Purchaser of its obligations
under, or the validity or enforceability of, this Agreement.
(c) The representations and warranties set forth in this
Section shall survive the sale of the Receivables by the Seller to the Purchaser
pursuant to this Agreement and the sale of the Receivables by the Purchaser to
the Issuer pursuant to the Sale and Servicing Agreement. Upon discovery by the
Seller, the Purchaser or the Owner Trustee of a breach of any of the
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foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the others.
SECTION 2.03 REPRESENTATIONS AND WARRANTIES OF THE SELLER AS TO THE
RECEIVABLES.
(a) ELIGIBILITY OF RECEIVABLES. The Seller hereby represents
and warrants as of the Cutoff Date that:
(i) CHARACTERISTICS OF RECEIVABLES. Each Receivable (A) shall
have been originated in the United States by a Dealer for the retail
sale of the related Financed Vehicle in the ordinary course of such
Dealer's business, shall have been fully and properly executed by the
parties thereto, shall have been purchased by the Seller from such
Dealer under an existing agreement with the Seller and shall have been
validly assigned by such Dealer to the Seller in accordance with the
terms of such agreement, (B) shall have created or shall create a
valid, subsisting and enforceable first priority security interest in
favor of the Seller in the related Financed Vehicle, which security
interest shall be assignable and has been assigned by the Seller to the
Purchaser, (C) shall provide for monthly payments that fully amortize
the Amount Financed by maturity and provide for a finance charge or
yield interest at its APR, in either case calculated based on the Rule
of 78s, the simple interest method or the actuarial method, (D) shall
contain customary and enforceable provisions such that the rights and
remedies of the holder thereof shall be adequate for realization
against the collateral of the benefits of the security and (E) shall
provide for, in the event that such Receivable is prepaid, a prepayment
that fully pays the Principal Balance and includes accrued but unpaid
interest.
(ii) SCHEDULE OF RECEIVABLES. The information set forth in the
Schedule of Receivables shall be true and correct in all material
respects as of the opening of business on the Cutoff Date, the
Receivables were selected at random from the retail installment sale
contracts included in the portfolio of the Seller meeting the selection
criteria set forth in this Section and no selection procedures believed
to be adverse to the interests of any Securityholders shall have been
utilized in selecting the Receivables.
(iii) COMPLIANCE WITH LAW. To the knowledge of the Seller,
each Receivable 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, except with respect to
applicable Florida documentary stamp taxes as to which the effect of
noncompliance will not have a material adverse effect on such
Receivable.
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(iv) BINDING OBLIGATION. Each Receivable shall constitute the
legal, valid and binding payment obligation in writing of the related
Obligor, enforceable by the holder thereof in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability shall
be considered in a proceeding in equity or at law.
(v) NO BANKRUPT OBLIGORS. None of the Receivables shall be
due, to the best knowledge of the Seller, from any Obligor who is
presently the subject of a bankruptcy proceeding or is insolvent.
(vi) NO GOVERNMENT OBLIGORS. None of the Receivables shall be
due from the United States or any state, or from any agency, department
or instrumentality of the United States or any state or local
government.
(vii) EMPLOYEE OBLIGORS. None of the Receivables shall be due
from any employee of the Seller, the Purchaser or any of their
respective affiliates.
(viii) SECURITY INTEREST IN FINANCED VEHICLES. Immediately
prior to the sale, assignment and transfer thereof pursuant hereto,
each Receivable shall be secured by a validly perfected first priority
security interest in the related Financed Vehicle in favor of the
Seller as secured party or all necessary and appropriate action with
respect to such Receivable shall have been taken to perfect a first
priority security interest in such Financed Vehicle in favor of the
Seller as secured party.
(ix) RECEIVABLES IN FORCE. No Receivable shall have been
satisfied, subordinated or rescinded, nor shall any Financed Vehicle
have been released in whole or in part from the lien granted by the
related Receivable.
(x) NO WAIVERS. No provision of a Receivable shall have been
waived in such a manner that such Receivable fails to meet all of the
other representations and warranties made by the Seller herein with
respect thereto.
(xi) NO AMENDMENTS. No Receivable shall have been amended or
modified in such a manner that the total number of Scheduled Payments
has been increased or that the related Amount Financed has been
increased or that such Receivable fails to meet all of the other
representations and warranties made by the Seller herein with respect
thereto.
(xii) NO DEFENSES. No facts shall be known to the Seller which
would give rise to any right of rescission, setoff, counterclaim or
defense, nor shall the same have been asserted or threatened, with
respect to any Receivable.
(xiii) NO LIENS. To the knowledge of the Seller, no liens or
claims shall have been filed as of the date of this Agreement,
including liens for work, labor or materials relating to a Financed
Vehicle, that shall be liens prior to, or equal or coordinate with, the
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security interest in such Financed Vehicle granted by the related
Receivable, which Liens shall not have been released or satisfied as of
the Closing Date.
(xiv) NO DEFAULTS; NO REPOSSESSION. Except for payment
defaults that, as of the Cutoff Date, have been continuing for a period
of not more than 30 days, no default, breach, violation or event
permitting acceleration under the terms of any Receivable shall have
occurred as of the Cutoff Date; no continuing condition that with
notice or the lapse of time would constitute a default, breach,
violation or event permitting acceleration under the terms of any
Receivable shall have arisen; the Seller shall not have waived any of
the foregoing; and no Financed Vehicle has been repossessed without
reinstatement as of the Cutoff Date.
(xv) INSURANCE. The terms of each Receivable require the
Obligor to obtain and maintain physical damage insurance covering the
related Financed Vehicle in accordance with TMCC's normal requirements.
The terms of each Receivable allow, but do not require TMCC to (and
TMCC, in accordance with its current normal servicing procedures, does
not) obtain any such coverage on behalf of the Obligor.
(xvi) GOOD TITLE. It is the intention of the Seller that the
transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Receivables from the Seller to the Purchaser
and that the beneficial interest in and title to the Receivables not be
part of the debtor's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. No
Receivable has been sold, transferred, assigned or pledged by the
Seller to any Person other than the Purchaser, and no provision of a
Receivable shall have been waived, as provided in clause (x) above;
immediately prior to the transfer and assignment herein contemplated,
the Seller had good and marketable title to each Receivable free and
clear of all Liens and rights of others; immediately upon the transfer
and assignment thereof, the Purchaser shall have good and marketable
title to each Receivable, free and clear of all Liens and rights of
others; and the transfer and assignment herein contemplated has been
perfected under the UCC.
(xvii) LAWFUL ASSIGNMENT. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable under
this Agreement or pursuant to transfers of the related certificates of
title shall be unlawful, void or voidable.
(xviii) ALL FILINGS MADE. As of the Closing Date, all filings
(including UCC filings) necessary in any jurisdiction to provide third
parties with notice of the transfer 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.
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(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 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; (ii)
each Receivable provides for the payment of a finance charge based on
an APR ranging from 8% to 15%; (iii) each Receivable shall have had an
original principal balance of not less than $1,090.01 and not more than
$50,000 and, as of the Cutoff Date, an unpaid principal balance of not
less than $250 nor more than $50,000; (iv) no Receivable was originated
under a special financing program; (v) no Receivable shall have a
Scheduled Payment that is more than 30 days past due as of the Cutoff
Date; (vi) no Financed Vehicle was subject to force-placed insurance as
of the Cutoff Date; (vii) there is no Receivable as to which payments
ahead of 6 or more Scheduled Payments have been received from or on
behalf of the related Obligor; and (viii) each Receivable is being
serviced by Toyota Motor Credit Corporation.
(b) NOTICE OF BREACH. The representations and warranties set
forth in this Section shall speak as of the execution and delivery of this
Agreement, but shall survive the sale, transfer and assignment of the
Receivables to the Purchaser and any subsequent assignment or transfer pursuant
to Article Two of the Sale and Servicing Agreement. The Purchaser, the Seller or
the Owner Trustee, as the case may be, shall inform the other parties promptly,
in writing, upon discovery of any breach of the Seller's representations and
warranties pursuant to this Section which materially and adversely affects the
interests of the Purchaser (or any assignee thereof) in any Receivable.
(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 the Purchaser (or any assignee thereof) in any
Receivable, unless such breach shall have been cured in all material respects,
the Seller shall repurchase such Receivable by the last day of the second
Collection Period following the Collection Period in which the discovery of the
breach is made or notice is received, as the case may be (or, at the option of
the Seller, the last day in the first Collection Period following the Collection
Period in which such discovery is made or such notice received). This repurchase
obligation shall obtain for all representations and warranties of the Seller
contained in this Agreement whether or not the Seller has knowledge of the
breach at the time of the breach or at the time the representations and
warranties were made. In consideration of the purchase of any such Receivable,
the Seller shall remit an amount equal to the Warranty Purchase Payment in
respect of such Receivable to the Purchaser, and the Seller shall be entitled to
receive the Released Warranty Amount from (or on behalf of) the Purchaser. The
sole remedy of the Purchaser (or any assignee thereof) with respect to a breach
of the Seller's representations and warranties pursuant to this Agreement shall
be to require the Seller to repurchase the related Receivable pursuant to this
Section. Upon any such repurchase, the Purchaser shall, without further action,
be deemed to transfer, assign, set-over and otherwise convey to the Seller,
without recourse, representation or warranty, all the right, title and interest
of the Purchaser in, to and under such repurchased Receivable, all monies due or
to become due with respect thereto and all proceeds thereof. The Purchaser or
the Owner Trustee, as applicable,
11
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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.
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 the Purchaser (or any
assignee thereof) in such Receivable are materially and adversely affected, such
Receivable shall be repurchased from the Purchaser by the Seller in the manner
and with the effect specified in Section 2.03(c), and the Seller shall defend
the right, title and interest of the Purchaser in, to and under the Receivables,
whether now existing or hereafter created, against all claims of third parties
claiming through or under the Seller; provided, however, that nothing in this
subsection shall prevent or be deemed to prohibit the Seller from suffering to
exist upon any of the Receivables, Liens for municipal or other local taxes if
such taxes shall not at the time be due and payable or if the Seller shall
currently be contesting the validity of such taxes in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with respect
thereto.
(b) DELIVERY OF PAYMENTS. The Seller agrees to deliver in kind
upon receipt to the Servicer under the Sale and Servicing Agreement (if other
than the Seller) all payments received by the Seller in respect of the
Receivables as soon as practicable after receipt thereof by the Seller from and
after the appointment of the Servicer as Servicer under the Sale and Servicing
Agreement with respect to the Toyota Auto Receivables 1999-A Owner Trust.
(c) CONVEYANCE OF RECEIVABLES. The Seller covenants and agrees
that it will not convey, assign, exchange or otherwise transfer the Receivables
to any Person prior to the termination of this Agreement pursuant to Article
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
Sale and Servicing Agreement, reschedule, revise or defer payments due on any
Receivable.
(e) DELIVERY OF OPINION OF COUNSEL. On the Closing Date, the
Seller will obtain and deliver to the Purchaser an Opinion of Counsel to the
effect that all of the Receivables originated in the State of California are
enforceable under California law and applicable federal laws, subject to
customary exceptions.
ARTICLE III.
PAYMENT OF RECEIVABLES PURCHASE PRICE
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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) $951,998,567.84, the net cash proceeds from the
public offering by the Purchaser of the Notes (less amounts retained to pay
expenses of the Purchaser and to fund the Reserve Account Initial Deposit), and
(ii) $32,069,674 evidenced by a subordinated non-recourse promissory note.
ARTICLE IV.
TERMINATION
SECTION 4.01 TERMINATION. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall terminate,
except for the indemnity obligations of the Seller as provided herein, upon the
termination of the Trust Agreement and dissolution of the Issuer as provided in
Article IX of the Trust Agreement.
ARTICLE V.
MISCELLANEOUS PROVISIONS
SECTION 5.01 AMENDMENT.
(a) This Agreement may be amended from time to time by the
Purchaser and the Seller to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to add any other provision with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement or the Trust Agreement and Sale and Servicing Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel to
the Purchaser delivered to the Owner Trustee, adversely affect in any material
respect the interests of the Issuer as assignee of the Purchaser's rights and
interests hereunder.
(b) This Agreement may also be amended from time to time by
the Purchaser and the Seller with the consent of the Owner Trustee for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement.
SECTION 5.02 PROTECTION OF RIGHT, TITLE AND INTEREST TO RECEIVABLES.
(a) The Seller at its expense shall cause this Agreement, all
amendments hereto and/or all financing statements and continuation statements
and any other necessary documents covering the Purchaser's right, title and
interest to the Receivables and other property conveyed by the Seller to the
Purchaser hereunder to be promptly recorded, registered and filed, and at all
times to be kept recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect the right, title
and interest of the Purchaser hereunder to all of the Receivables and such other
property. The Seller shall deliver to the Purchaser file-stamped copies of, or
filing receipts for, any document recorded, registered or
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filed as provided above, as soon as available following such recording,
registration or filing. The Purchaser and the Owner Trustee shall cooperate
fully with the Seller in connection with the obligations set forth above and
will execute any and all documents reasonably required to fulfill the intent of
this subsection.
(b) Within 30 days after the Seller makes any change in 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.
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: Treasury Department, Vice President,
Treasury; and (c) in the case of the Owner Trustee or the Indenture Trustee, to
U.S. Bank National Association, 111 East Wacker Drive, Suite 3000, Chicago,
Illinois 60601; 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 Trust
Agreement and Sale and Servicing Agreement; provided, however, that
simultaneously with the execution and delivery of this Agreement, the Purchaser
shall assign all of its right, title and interest herein to the Owner
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Trustee for the benefit of any Securityholders as provided in Section 2.01 of
the Sale and Servicing Agreement, to which the Seller hereby expressly consents.
The Seller also acknowledges that the Issuer will further assign the rights and
interests of the Purchaser hereunder to the Indenture Trustee for the benefit of
the Noteholders pursuant to the Indenture. The Seller agrees to perform its
obligations hereunder for the benefit of the Issuer, and agrees that the Owner
Trustee or the Indenture trustee, as applicable, may enforce the provisions of
this Agreement, exercise the rights of the Purchaser and enforce the obligations
of the Seller hereunder without the consent of the Purchaser.
SECTION 5.07 FURTHER ASSURANCES. The Seller and the Purchaser agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party hereto
or by the Owner Trustee more fully to effect the purposes of this Agreement,
including, without limitation, the execution of any financing statements,
amendments, continuation statements or releases relating to the Receivables for
filing under the provisions of the UCC or other law of any applicable
jurisdiction.
SECTION 5.08 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Purchaser, the Owner Trustee, the
Indenture Trustee or the Seller, of any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SECTION 5.09 COUNTERPARTS. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
SECTION 5.10 THIRD-PARTY BENEFICIARIES. This Agreement will inure to
the benefit of and be binding upon the parties signatory hereto, and the Owner
Trustee for the benefit of any Securityholders, which shall be considered to be
a third-party beneficiary hereof. Except as otherwise provided in this
Agreement, no other Person will have any right or obligation hereunder.
SECTION 5.11 MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
SECTION 5.12 HEADINGS. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 5.13 INDEMNIFICATION. The Seller shall indemnify and hold
harmless the Purchaser, the Issuer, the Owner Trustee and the Securityholders
from and against any and all costs, expenses, losses, claims, damages, injury
and liabilities to the extent that such cost,
15
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expense, loss, claim, damage or liability arose out of, and was imposed upon
such Person through the willful misconduct or negligence of the Seller in the
performance of its duties under this Agreement or by reason of reckless
disregard of its obligations and duties under this Agreement, including, but not
limited to, any judgment, award, settlement, reasonable attorneys' fees and
other costs or expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim; provided, however, that the Seller shall
not indemnify any such Person if such acts, omissions or alleged acts or
omissions constitute negligence or willful misconduct by the Purchaser, the
Owner Trustee or any Securityholders. In case any such action is brought against
a party indemnified under this Section 5.13 and it notifies the Seller of the
commencement thereof, the Seller will assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who may, unless there is, as
evidenced by an Opinion of Counsel stating that there is an unwaivable conflict
of interest, be counsel to the Seller), and the Seller will not be liable to
such indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, other than reasonable costs of investigation.
SECTION 5.14 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, THE SELLER.
(a) The Seller shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the corporation formed by such consolidation or into which the
Seller is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Seller substantially as an entirety
shall be organized and existing under the laws of the United States or
any State or the District of Columbia, and, if the Seller is not the
surviving entity, shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Purchaser and the Owner Trustee,
in form reasonably satisfactory to the Purchaser and the Owner Trustee,
the performance of every covenant and obligation of the Seller
hereunder and shall benefit from all the rights granted to the Seller
hereunder in all material respects; and
(ii) The Seller shall have delivered to the Purchaser and the Owner
Trustee an Officer's Certificate of the Seller and an Opinion of
Counsel each stating that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this Section and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
(b) The obligations of the Seller hereunder shall not be assignable nor
shall any Person succeed to the obligations of the Seller hereunder except in
each case in accordance with the provisions of the foregoing paragraph and of
Section 5.06.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
TOYOTA MOTOR CREDIT CORPORATION,
as Seller
By: /S/ GEORGE 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:
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Owner Trustee
and as Indenture Trustee
By: /S/ EDWARD F. KACHINSKI
-----------------------------------
Name: Edward F. Kachinski
Title: Vice President
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SCHEDULE A
SCHEDULE OF RECEIVABLES
Omitted -- originals on file at the offices
of the Seller, the Purchaser and the Owner Trustee
A-1
<PAGE>
EXHIBIT 4.4
TOYOTA AUTO RECEIVABLES 1999-A OWNER TRUST
(a Delaware Business Trust)
--------------------------------------
AMENDED AND RESTATED TRUST AGREEMENT
between
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION,
as Depositor,
U.S. BANK NATIONAL ASSOCIATION,
as Owner Trustee
and
(For certain limited purposes only)
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
as Delaware Co-trustee
----------------------------------------------
Dated as of July 1, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
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PAGE
ARTICLE I
DEFINITIONS
<S> <C> <C>
SECTION 1.01 Definitions...........................................................................1
SECTION 1.02 Usage of Terms........................................................................4
ARTICLE II
CREATION OF TRUST
SECTION 2.01 Creation of Trust.....................................................................4
SECTION 2.02 Office................................................................................4
SECTION 2.03 Purposes and Powers...................................................................4
SECTION 2.04 Power of Attorney.....................................................................5
SECTION 2.05 Declaration of Trust..................................................................5
SECTION 2.06 Liability of the Certificateholders and TMCC..........................................6
SECTION 2.07 Title to Trust Property...............................................................6
SECTION 2.08 Situs of Trust........................................................................6
SECTION 2.09 Representations and Warranties of the Depositor.......................................7
SECTION 2.10 Federal Income Tax Allocations........................................................8
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01 The Certificates......................................................................8
SECTION 3.02 Authentication of Certificates........................................................9
SECTION 3.03 Registration of Transfer and Exchange of Certificates.................................9
SECTION 3.04 Mutilated, Destroyed, Lost or Stolen Certificates....................................11
SECTION 3.05 Persons Deemed Certificateholders....................................................11
SECTION 3.06 Access to List of Certificateholders' Names and Addresses............................11
SECTION 3.07 Maintenance of Office or Agency......................................................12
SECTION 3.08 Appointment of Paying Agent..........................................................12
ARTICLE IV
ACTIONS BY OWNER TRUSTEE OR CERTIFICATEHOLDERS
SECTION 4.01 Prior Notice to Certificateholders with Respect to Certain Matters...................13
SECTION 4.02 Action by Certificateholders with Respect to Certain Matters.........................13
SECTION 4.03 Action with Respect to Bankruptcy....................................................13
SECTION 4.04 Restrictions on Certificateholders' Power............................................14
SECTION 4.05 Majority Control.....................................................................14
</TABLE>
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TABLE OF CONTENTS
(continued)
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 5.01 Establishment of Collection Account and Payahead Account.............................14
SECTION 5.02 Application of Amounts in Trust Accounts.............................................15
SECTION 5.03 Method of Payment....................................................................16
SECTION 5.04 Accounting and Reports to the Noteholders, Certificateholders, the
Internal Revenue Service and Others .... 16
SECTION 5.05 Signature on Returns; Tax Matter Partner.............................................16
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01 General Authority....................................................................17
SECTION 6.02 General Duties.......................................................................17
SECTION 6.03 Duties of Owner Trustee..............................................................17
SECTION 6.04 No Duties Except as Specified in this Agreement or in Instructions...................18
SECTION 6.05 No Action Except Under Specified Documents or Instructions...........................19
SECTION 6.06 Restrictions.........................................................................19
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01 Rights of Owner Trustee..............................................................19
SECTION 7.02 Furnishing of Documents..............................................................20
SECTION 7.03 Representations and Warranties.......................................................20
SECTION 7.04 Reliance; Advice of Counsel..........................................................21
SECTION 7.05 Not Acting in Individual Capacity....................................................21
SECTION 7.06 Owner Trustee Not Liable for Certificates or Receivables.............................22
SECTION 7.07 Owner Trustee May Own Certificates and Notes.........................................22
SECTION 7.08 Pennsylvania Motor Vehicle Sales Finance Act Licenses................................22
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01 Owner Trustee's Fees and Expenses....................................................23
SECTION 8.02 Indemnification......................................................................23
SECTION 8.03 Payments to the Owner Trustee........................................................23
</TABLE>
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ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01 Termination of Trust Agreement.......................................................24
SECTION 9.02 Dissolution upon Insolvency of the Depositor.........................................25
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01 Eligibility Requirements for Owner Trustee...........................................26
SECTION 10.02 Resignation or Removal of Owner Trustee..............................................26
SECTION 10.03 Successor Owner Trustee..............................................................27
SECTION 10.04 Merger or Consolidation of Owner Trustee.............................................27
SECTION 10.05 Appointment of Co-Trustee or Separate Trustee........................................27
ARTICLE XI
AUTHORITY AND DUTIES OF DELAWARE CO-TRUSTEE
SECTION 11.01 General Authority of Delaware Co-trustee.............................................29
SECTION 11.02 Duties of Delaware Co-trustee........................................................29
SECTION 11.03 Representations and Warranties of Delaware Co-trustee................................30
SECTION 11.04 Compensation of Delaware Co-trustee..................................................31
SECTION 11.05 Indemnification of Delaware Co-trustee...............................................31
SECTION 11.06 Resignation or Removal of Delaware Co-trustee........................................31
SECTION 11.07 Payments to the Delaware Co-Trustee..................................................31
ARTICLE XII
MISCELLANEOUS
SECTION 12.01 Supplements and Amendments...........................................................32
SECTION 12.02 No Legal Title to Owner Trust Estate in Certificateholders...........................33
SECTION 12.03 Limitations on Rights of Others......................................................33
SECTION 12.04 Notices..............................................................................34
SECTION 12.05 Severability.........................................................................34
SECTION 12.06 Counterparts.........................................................................34
SECTION 12.07 Successors and Assigns...............................................................34
SECTION 12.08 No Petition..........................................................................34
SECTION 12.09 No Recourse..........................................................................35
SECTION 12.10 Headings.............................................................................35
SECTION 12.11 GOVERNING LAW........................................................................35
</TABLE>
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<CAPTION>
<S> <C> <C>
SECTION 12.12 TMCC Payment Obligation..............................................................35
</TABLE>
-iv-
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AMENDED AND RESTATED TRUST AGREEMENT dated as of July 1, 1999,
between TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION, a California corporation,
as depositor, U.S. BANK NATIONAL ASSOCIATION, a national banking association,
not in its individual capacity but solely as Owner Trustee, and, for the limited
purposes set forth herein, FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity but solely as
Delaware Co-trustee, amending and restating in its entirety the Trust Agreement
dated as of July 1, 1999, among the same parties, and herein referred to as the
"Trust Agreement" or this "Agreement".
IN CONSIDERATION of the mutual agreements herein contained,
and of other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. Except as otherwise specified herein or if
the context may otherwise require, capitalized terms used but not otherwise
defined herein have the meanings ascribed thereto in the Sale and Servicing
Agreement and the Indenture for all purposes of this Trust Agreement. 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:
"ADMINISTRATION AGREEMENT" means the Administration Agreement dated as
of July 1, 1999, by and between the Trust as issuer, TMCC as Administrator, the
Indenture Trustee and the Owner Trustee pursuant to which TMCC undertakes to
perform certain of the duties and obligations of the Trust and the Owner Trustee
hereunder, under the Sale and Servicing Agreement and under the Indenture.
"ADMINISTRATOR" means TMCC acting in its capacity as Administrator
under the Administration Agreement.
"AGREEMENT" means this Amended and Restated Trust Agreement, as the
same may be amended and supplemented from time to time.
"BASIC DOCUMENTS" means the Receivables Purchase Agreement, this
Agreement, the Certificate of Trust, the Sale and Servicing Agreement, the
Indenture, the Administration Agreement and the Securities Account Control
Agreement and the other documents and certificates delivered in connection
herewith and therewith.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 ET SEQ., as the same may be amended from time to
time.
"CERTIFICATE" means a certificate evidencing a beneficial ownership
interest in the Trust, substantially in the form attached hereto as Exhibit A.
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"CERTIFICATE BALANCE" means the Initial Certificate Balance provided
that the Certificate Balance will be reduced to zero on the date that final
assets in the Owner Trust Estate are distributed to the Certificateholders upon
termination of the Trust.
"CERTIFICATE OF TRUST" means the Certificate of Trust filed with
respect to the formation of the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"CERTIFICATE REGISTER" means the register maintained pursuant to
Section 3.03.
"CERTIFICATEHOLDER" or "HOLDER" means a Person in whose name a
Certificate is registered in the Certificate Register.
"CERTIFICATE REGISTRAR" means the Owner Trustee unless and until a
successor thereto is appointed pursuant to Section 3.03. The Certificate
Registrar initially designates its offices at 111 East Wacker Drive, Suite 3000,
Chicago, Illinois 60601, as its offices for purposes of Section 3.03.
"CODE" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"CORPORATE TRUST OFFICE" means, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at 111 East Wacker
Drive, Suite 3000, Chicago, Illinois 60601; or at such other address as the
Owner Trustee may designate by notice to the Certificateholders, or the
principal corporate trust office of any successor Owner Trustee (the address of
which the successor owner trustee will notify the Certificateholders).
"DELAWARE CO-TRUSTEE" means First Union Trust Company, National
Association, a national banking association, not in its individual capacity but
solely as Delaware co-trustee under this Agreement, and any successor Delaware
co-trustee hereunder.
"DEPOSITOR" means TMCRC in its capacity as depositor hereunder.
"EXPENSES" shall have the meaning assigned to such term in Section
8.02.
"INDENTURE" means the Indenture dated as of July 1, 1999, entered into
between the Trust and U.S. Bank National Association, the Indenture Trustee
named therein, pursuant to which a series of Notes are issued.
"INITIAL CERTIFICATE BALANCE" means $586.54.
"NON-U.S. PERSON" means any Person who is not (i) a citizen or resident
of the United States who is a natural person, (ii) a corporation or partnership
(or an entity treated as a corporation or partnership) organized in or under the
laws of the United States or any state thereof, including the District of
Columbia (unless, in the case of a partnership, Treasury Regulations are adopted
that provide otherwise), (iii) an estate, the income of which is subject to
United States Federal income taxation, regardless of its source or (iv) a trust,
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States persons (as such
term is defined in the Code and Treasury Regulations)
2
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have the authority to control all substantial decisions of the trust;
except that, to the extent provided in Treasury Regulations, certain
trusts in existence prior to August 20, 1996 which elected to be
treated as United States Persons prior to such date also shall be U.S.
Persons.
"NOTES" means the notes issued by the Trust pursuant to the Indenture,
having the payment and other terms set forth in such Indenture.
"OWNER TRUST ESTATE" means all right, title and interest of the Trust
in and to the property and rights assigned to the Trust pursuant to Article II
of the Sale and Servicing Agreement, all funds on deposit from time to time in
the accounts created pursuant to Section 5.01 of the Sale and Servicing
Agreement (excluding any net investment income with respect to amounts held in
such accounts) and all other property of the Trust from time to time, including
any rights of the Owner Trustee and the Trust pursuant to the Sale and Servicing
Agreement and the Administration Agreement, and as assignee of the rights and
Interests of the Depositor under the Receivables Purchase Agreement.
"OWNER TRUSTEE" means U.S. Bank National Association, a national
banking association, not in its individual capacity but solely as owner trustee
under this Agreement, and any successor Owner Trustee hereunder.
"PAYING AGENT" means any paying agent or co-paying agent appointed
pursuant to Section 3.08, and shall initially be U.S. Bank National Association.
"RECEIVABLES PURCHASE AGREEMENT" means that certain Receivables
Purchase Agreement, dated as of the July 1, 1999, between TMCC, as Seller, and
TMCRC, as Purchaser of the Receivables.
"RECORD DATE" means, with respect to the Notes of any Class or the
Certificates and each Payment Date, the calendar day immediately preceding such
Payment Date or, if Definitive Notes representing any Class of Notes have been
issued, the last day of the month immediately preceding the month in which such
Payment 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
payments and distributions to any party under this Agreement, the Indenture and
the Trust 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.
"SALE AND SERVICING AGREEMENT" means the Sale and Servicing Agreement
dated as of July 1, 1999, among the Trust, TMCRC, as seller, and TMCC, as
servicer.
"SECRETARY OF STATE" means the Secretary of State of the State of
Delaware.
"SECURITIES ACCOUNT CONTROL AGREEMENT" shall have the meaning ascribed
thereto in the Sale and Servicing Agreement.
"TMCC" means Toyota Motor Credit Corporation, a California corporation,
its successors and assigns.
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"TMCRC" means Toyota Motor Credit Receivables Corporation, a California
corporation, its successors and assigns.
"TREASURY REGULATIONS" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"TRUST" means the Toyota Auto Receivables 1999-A Owner Trust, formed as
a Delaware business trust pursuant to this Agreement and the filing of the
Certificate of Trust.
SECTION 1.02 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."
ARTICLE II
CREATION OF TRUST
SECTION 2.01 CREATION OF TRUST There is hereby formed in accordance
with the provisions of the Delaware Act, a Delaware business trust to be known
as the Toyota Auto Receivables 1999-A Owner Trust. The Owner Trustee is hereby
authorized and vested with the power and authority to make and execute
contracts, instruments, certificates, agreements and other writings on behalf of
the Trust as set forth herein and to sue and be sued on behalf of the Trust.
The Owner Trustee does hereby accept and agree to hold in
trust, for the benefit of the Certificateholders and such other Persons as may
become beneficiaries hereunder from time to time, all of the Owner Trust Estate
conveyed or to be conveyed to the Trust, and all monies and proceeds that may be
received with respect thereto, subject to the terms of this Agreement.
SECTION 2.02 OFFICE. The principal place of business of the Trust for
purposes of Delaware law shall be in care of the Delaware Co-trustee. The Trust
may establish additional offices located at such place or places inside or
outside of the State of Delaware as the Owner Trustee may designate from time to
time in written notice to each Certificateholder and the Servicer. Initially,
the Trust shall establish one such additional office at the offices of the Owner
Trustee set forth in Section 12.04.
SECTION 2.03 PURPOSES AND POWERS.
(a) The purpose of the Trust is to engage in the following activities:
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(i) to issue Notes pursuant to the Indenture and Certificates
pursuant to this Agreement;
(ii) to acquire the Receivables and related property from the
Depositor in exchange for the Notes and Certificates pursuant to the
Sale and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to, and on the terms and conditions set forth
in, the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to the terms of the Sale and Servicing
Agreement any portion of the Trust Estate released from the Lien of,
and remitted to the Trust pursuant to, the Indenture as set forth
therein and in the Sale and Servicing Agreement;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholders and the Noteholders and in respect of amounts
to be released to the Depositor, the Servicer, the Administrator and
third parties, if any.
The Trust is hereby authorized to engage in the foregoing activities.
The Trust shall not engage in any activity other than in connection with the
foregoing and as required or authorized by the terms of the Basic Documents.
SECTION 2.04 POWER OF ATTORNEY. Pursuant to the Administration
Agreement, the Owner Trustee has authorized the Administrator to perform certain
of its administrative duties hereunder, including duties with respect to the
management of the Owner Trust Estate, and in connection therewith hereby grants
the Administrator its revocable power of attorney. Each Certificateholder by
such Holder's acceptance of any Certificate or beneficial interest therein, as
the case may be, shall be deemed to have granted power of attorney to the
Administrator for purposes of actions taken or to be taken with respect to the
Certificates.
SECTION 2.05 DECLARATION OF TRUST. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a business trust under
the Business Trust Statute and that this Agreement constitute the governing
instrument of such business trust. It is the intention of the parties hereto
that, solely for income and franchise tax purposes, the Trust shall be treated
as a partnership for any period during which the beneficial ownership interests
in the Trust are held by more than one person, with the assets of the
partnership being the Receivables and other assets held by the Trust, and the
Notes being debt of the partnership. The parties agree that for any such period,
unless otherwise required by
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appropriate tax authorities, the Trust will file or cause to be filed annual or
other necessary returns, reports and other forms consistent with the
characterization of the Trust as a partnership for such tax purposes. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and in the Business Trust Statute with respect to
accomplishing the purposes of the Trust. At the direction of the Depositor, the
Owner Trustee shall file or cause to be filed a certificate of trust for the
Issuer pursuant to the Delaware Act and such amendments thereto as shall be
necessary or appropriate to satisfy the purposes of this agreement and as shall
be consistent with the provisions hereof.
SECTION 2.06 LIABILITY OF THE CERTIFICATEHOLDERS AND TMCC.
(a) The Administrator shall be liable directly to and will, in
accordance with the Administration Agreement and the following provisions,
indemnify and hold harmless the Owner Trustee, any co-trustee, the Delaware
Co-trustee and the Indenture Trustee for any loss, liability, claim, action,
suit, cost or expense of the Trust (including Expenses, to the extent not paid
out of the Owner Trust Estate) to the extent that TMCC would be liable if the
Trust were a partnership under the Delaware Revised Uniform Limited Partnership
Act in which TMCC were a general partner; PROVIDED, HOWEVER, that the
Administrator shall not be liable for any losses incurred by a Certificateholder
in the capacity of an investor in the Certificates or a Noteholder in the
capacity of an investor in the Notes and will not and shall not be deemed hereby
to have indemnified the Owner Trustee, any co-trustee, the Delaware Co-trustee
or Indenture Trustee against any loss liability or expense resulting from such
trustee's own willful misfeasance, bad faith or negligence or by reason of a
breach of representation or warranty thereof contained herein or in the
Indenture, as the case may be. In addition, any third party creditors of the
Trust (other than in connection with the obligations described in the provisions
in the preceding sentence for which TMCC shall not be liable) shall be deemed to
be third party beneficiaries of this paragraph.
(b) No Certificateholder shall have any personal liability for any
liability or obligation of the Trust, solely by reason of it being a
Certificateholder.
SECTION 2.07 TITLE TO TRUST PROPERTY. Legal title to all of the Owner
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.08 SITUS OF TRUST. The Trust will be located in Delaware and
administered in the state of Illinois. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware or the
State of New York or the State of Illinois. The Trust shall not have any
employees in any state other than Delaware; PROVIDED, HOWEVER, that nothing
herein shall restrict or prohibit the Owner Trustee from having employees within
or without the State of Delaware. Payments will be received by the Trust only in
Delaware or New York or Illinois, and payments will be made by the Trust only
from Delaware or New York or Illinois. The principal office of the Trust will be
at the Corporate Trust Office in Delaware.
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SECTION 2.09 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
(a) The Depositor hereby represents and warrants to the Owner Trustee
and the Delaware Co-trustee that as of the Closing Date:
(i) The Depositor is duly organized and 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 are currently owned and such business
is presently conducted, and had at all relevant times and has corporate
power, authority and legal right to acquire, own and sell the
Receivables.
(ii) The Depositor is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications and where the failure to so qualify will have a material
adverse effect on the ability of the Depositor to conduct its business
or perform its obligations under this Agreement.
(iii) The Depositor has 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 has been duly
authorized by the Depositor by all necessary corporate action.
(iv) This Agreement shall constitute a legal, valid and
binding obligation of the Depositor 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) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Depositor or conflict
with or breach any of the terms or provisions of a certificate (with or
without notice or lapse of time) a default under any indenture,
agreement or other instrument to which the Depositor is a party or by
which it is 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 pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of
any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Depositor 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 Depositor.
(vi) 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 Depositor's knowledge, threatened, against or affecting the
Depositor: (i) asserting the invalidity of
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this Agreement, (ii) seeking to prevent 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 Depositor of its obligations under, or the validity
or enforceability of, this Agreement or (iv) relating to the Depositor
and which might adversely affect the federal income tax attributes of
the Trust or the Certificates or Notes.
SECTION 2.10 FEDERAL INCOME TAX ALLOCATIONS. Net income of the Trust
for any month as determined for Federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof) shall be
allocated:
(a) in an amount equal to any amount distributed to the
Certificateholders pursuant to the Sale and Servicing Agreement (to the extent
not previously allocated pursuant to this clause); and
(b) to the Depositor, to the extent of any remaining net income.
If the net income of the Trust for any month is insufficient for the allocations
described in clause (a) above, subsequent net income shall first be allocated to
make up such shortfall before being allocated as provided in the preceding
sentence. Net losses of the Trust, if any, for any month as determined for
Federal income tax purposes (and each item of income, gain, loss and deduction
entering into the computation thereof) shall be allocated to the Depositor to
the extent the Depositor has agreed hereunder and under the Sale and Servicing
Agreement and the Indenture to bear the economic burden of such net losses, and
any remaining net losses shall be allocated among the Certificateholders as of
the first Payment Date following the end of such month in proportion to their
ownership of principal amount of Certificates as of the close of business on
such Payment Date. The Depositor is authorized to modify the allocations in this
paragraph if necessary or appropriate, in its sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the Depositor
or to the Certificateholders, or as otherwise required by the Code.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01 THE CERTIFICATES. The Certificates shall be issued in
minimum denominations of $.01 and in integral multiples of $.01 in excess
thereof. The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of a Trust Officer of the Owner Trustee and authenticated on
behalf of the Owner Trustee by the manual or facsimile signature of a Trust
Officer. Certificates bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trust, shall be valid and binding obligations of the
Trust, notwithstanding that such individuals or any of them shall 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 authentication and delivery of such
Certificates.
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The Certificates may be printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination in the form
of Exhibit A hereto.
A transferee of a Certificate shall become a Certificateholder, and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder, upon such transferee's acceptance of a Certificate
duly registered in such transferee's name pursuant to Section 3.03.
SECTION 3.02 AUTHENTICATION OF CERTIFICATES. Concurrently with the
initial sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Owner Trustee shall cause to be executed, authenticated and
delivered on behalf of the Trust to or upon the written order of the Depositor,
Certificates in an aggregate principal amount equal to the Initial Certificate
Balance and evidencing the entire ownership of the Trust. No Certificate shall
entitle its holder to any benefit under this Agreement or be valid for any
purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee or the Owner Trustee's authenticating agent, by manual or
facsimile signature of a Trust Officer, and such authentication shall constitute
conclusive evidence, and the only evidence, that such Certificate shall have
been duly authenticated and delivered hereunder. All Certificates shall be dated
the date of their authentication.
SECTION 3.03 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.07, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Owner Trustee shall be the
initial Certificate Registrar. In the event that the Certificate Registrar shall
for any reason become unable to act as Certificate Registrar, the Certificate
Registrar shall promptly give written notice to such effect to the Depositor,
the Owner Trustee and the Servicer. Upon receipt of such notice, the Servicer
shall appoint another bank or trust company, having an office or agency located
in the Chicago, Illinois or The City of New York, and that shall agree to act in
accordance with the provisions of this Agreement applicable to it, and otherwise
acceptable to the Owner Trustee, to act as successor Certificate Registrar under
this Agreement.
(b) Upon surrender for registration of transfer of any Certificate at
the office or agency maintained pursuant to Section 3.07, the Owner Trustee
shall execute, authenticate and deliver (or shall cause its authenticating agent
to authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
aggregate amount dated the date of authentication by the Owner Trustee or any
authenticating agent. At the option of a Holder, Certificates may be exchanged
for other Certificates of authorized denominations of a like aggregate amount
upon surrender of the Certificates to be exchanged at the office or agency
maintained pursuant to Section 3.07. The preceding provisions of this Section
notwithstanding, the Owner Trustee shall not make and the Certificate Registrar
shall not register transfer or exchanges of Certificates for a period of 15 days
preceding the due date for any payment with respect to the Certificates.
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(c) 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 Owner Trustee and the Certificate Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
cancelled and disposed of by the Owner Trustee in accordance with its customary
practice.
No transfer of a Certificate shall be made unless the Owner Trustee
shall have received:
(1) a representation from the transferee of such Certificate acceptable
to and in form and substance satisfactory to the Owner Trustee substantially in
the form of Exhibit B to the effect that:
(i) such transferee is not a Non-U.S. Person;
(ii) 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 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
(iii) is a Plan or is an insurance company purchasing a
Certificate with funds contained in an insurance company general
account, having attached thereto an opinion of counsel satisfactory to
the Owner Trustee, which opinion shall not be an expense of either the
Owner Trustee or the Trust, addressed to the Owner Trustee, to the
effect that the purchase or holding of such Certificate will not result
in the assets of the Owner Trust Estate being deemed to be "plan
assets" and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Owner Trustee to any obligation
in addition to those expressly undertaken in this Agreement or to any
liability.
Notwithstanding anything else to the contrary herein, any purported transfer of
a Certificate to or on behalf of an employee benefit plan subject to ERISA or to
the Code or to an insurance company purchasing with funds from a general account
not exempt pursuant to PTCE 95-60 without the delivery to the Owner Trustee of
an opinion of counsel satisfactory to the Owner Trustee as described in clause
(iii) above shall be void and of no effect;
(2) a representation from the transferor of such Certificate acceptable
to and in form and substance satisfactory to the Owner Trustee substantially in
the form of Exhibit C; and
(3) an opinion of counsel to the Owner Trustee that the transfer of
such Certificate is being made pursuant to an effective registration under the
Securities Act of 1933 or is exempt from the registration requirements of the
Securities Act.
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To the extent permitted under applicable law (including, but not
limited to, ERISA), the Owner Trustee shall be under no liability to any Person
for any registration of transfer of any Certificate that is in fact not
permitted by this Section 3.03(c) or for making any payments due on such
Certificate to the Certificateholder thereof or taking any other action with
respect to such Holder under the provisions of this Trust Agreement or the Sale
and Servicing Agreement so long as the transfer was registered by the
Certificate Registrar or the Owner Trustee in accordance with the foregoing
requirements.
(d) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar 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.
SECTION 3.04 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner 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 shall have been acquired by a bona fide purchaser,
the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee, or
the Owner Trustee's authenticating agent, 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 denomination. In connection
with the issuance of any new Certificate under this Section, the Owner Trustee
or the Certificate Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
SECTION 3.05 PERSONS DEEMED CERTIFICATEHOLDERS. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee or
the Certificate Registrar may treat the Person in whose name any Certificate
shall be registered in the Certificate Register as the owner of such Certificate
for the purpose of receiving distributions pursuant to Section 5.02 and for all
other purposes whatsoever, and neither the Owner Trustee nor the Certificate
Registrar shall be bound by any notice to the contrary.
SECTION 3.06 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
The Certificate Registrar shall furnish or cause to be furnished to the Owner
Trustee, the Servicer or the Depositor, as the case may be, within 15 days after
its receipt of a request therefor from the Owner Trustee, the Servicer or the
Depositor in writing, a list, in such form as the Owner Trustee, the Servicer or
the Depositor may reasonably require, 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 Certificates evidencing, in the
aggregate, not less than 25% of the Certificate Balance apply in writing to the
Owner 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
Owner Trustee shall, within five Business Days after the receipt of such
application, afford such applicants access during
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normal business hours to the current list of Certificateholders. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed not to hold
any of the Depositor, the Servicer, the Certificate Registrar or the Owner
Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 3.07 MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee shall
maintain in Chicago, Illinois or 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 Owner Trustee
in respect of the Certificates and the Basic Documents may be served. The Owner
Trustee initially designates U.S. Bank National Association, 111 East Wacker
Drive, Suite 3000, Chicago, Illinois 60601, as its principal corporate trust
office for such purposes. The Owner Trustee shall give prompt written notice to
the Depositor and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
SECTION 3.08 APPOINTMENT OF PAYING AGENT. Except during any period when
the Indenture Trustee is authorized and directed to do so under the Indenture
(i.e. prior to the termination of the Indenture), the Paying Agent shall make
distributions to Certificateholders from the Collection Account pursuant to
Section 5.02 and shall report the amounts of such distributions to the Owner
Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Collection Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Paying Agent if
the Owner Trustee determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be the Owner Trustee, and any
co-paying agent chosen by the Owner Trustee, and acceptable to the Owner
Trustee. The Owner Trustee shall be permitted to resign as Paying Agent upon 30
days' written notice to the Owner Trustee. In the event that the Owner Trustee
shall no longer be the Paying Agent, the Owner Trustee shall appoint a successor
to act as Paying Agent (which shall be a bank or trust company). The Owner
Trustee shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Owner Trustee to execute and deliver to the Owner Trustee an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Owner Trustee that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders. The
Paying Agent shall return all unclaimed funds to the Owner Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Owner Trustee. The provisions of Sections 7.01, 7.03, 7.04,
8.01 and 8.02 shall apply to the Owner Trustee also in its role as Paying Agent,
for so long as the Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE OR CERTIFICATEHOLDERS
SECTION 4.01 PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action (or such shorter
period as shall be agreed to in writing by all Certificateholders), the Owner
Trustee shall have notified the Certificateholders in writing of the proposed
action and the Certificateholders shall not have notified the Owner Trustee in
writing prior to the 30th day (or such agreed upon shorter period) after such
notice is given that such Certificateholders have withheld consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims
or lawsuits brought in connection with the collection of the Receivables) and
the compromise of any action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for collection of
the Receivables);
(b) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Business Trust
Statute);
(c) the amendment of the Indenture, whether or not by a Supplemental
Indenture, in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture, whether or not by a Supplemental
Indenture, in circumstances where the consent of any Noteholder is not required
but such amendment materially adversely affects the interest of the
Certificateholders;
(e) the amendment, change or modification of the Administration
Agreement, other than to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially adversely
affect the interests of the Certificateholders; or
(f) the appointment (i) pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee, (ii) pursuant to this Agreement of
a successor Certificate Registrar or (iii) any consent by the Note Registrar,
Paying Agent or Indenture Trustee or Certificate Registrar to the assignment of
its respective obligations under the Indenture or this Agreement, as applicable.
SECTION 4.02 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders, to (a) remove the Administrator pursuant to Section 8
of the Administration Agreement, (b) appoint a successor Administrator pursuant
to Section 8 of the Administration Agreement, (c) remove the Servicer pursuant
to Section 8.01 of the Sale and Servicing Agreement or (d) except as expressly
provided in the Basic Documents, sell the Receivables after the termination of
the Indenture. The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by the authorized
representative of 100% of the Certificateholders.
SECTION 4.03 ACTION WITH RESPECT TO BANKRUPTCY. The Owner Trustee shall
not have the power to commence a voluntary proceeding in bankruptcy relating to
the Trust without the
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unanimous prior approval of all Certificateholders and the delivery to the Owner
Trustee by each such Certificateholder certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
SECTION 4.04 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligations of the Trust or of the Owner Trustee under any of the Basic
Documents or would be contrary to Section 2.03 nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.05 MAJORITY CONTROL. Except as otherwise expressly provided
herein, any action that may be taken by the Certificateholders under this
Agreement may be taken by the Holders of Certificates evidencing not less than
51% of the Certificate Balance. Except as expressly provided herein, any written
notice of the Certificateholders delivered pursuant to this Agreement shall be
effective if signed by Holders of Certificates evidencing not less than 51% of
the Certificate Balance at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01 ESTABLISHMENT OF COLLECTION ACCOUNT AND PAYAHEAD ACCOUNT.
(a) The Owner Trustee, for the benefit of the Certificateholders, shall
establish and maintain, or shall cause to be established and maintained, in the
name of the Trust (or in such other name as shall be specified in the Sale and
Servicing Agreement), the Collection Account and the Payahead Account. Each such
account shall be established and maintained as an Eligible Deposit Account, and,
subject to provisions of the Sale and Servicing Agreement and the Indenture,
bearing a designation clearly indicating that, subject to Section 5.01(b), the
funds deposited therein are held by the Trust for the benefit of the
Certificateholders, in each case in accordance with Section 5.01 in the Sale and
Servicing Agreement.
Subject to Section 5.01(b), the Owner Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the Collection
Account and the Payahead Account and in all proceeds thereof (other than any net
investment earnings on Eligible Investments held therein). Except as otherwise
expressly provided herein, the Collection Account and the Payahead Account shall
be under the sole dominion and control of the Owner Trustee for the benefit of
the Certificateholders. If, at any time, the Collection Account or the Payahead
Account ceases to be an Eligible Deposit Account, the Owner Trustee (or the
Administrator on behalf of the Owner Trustee, if the Collection Account is not
then held by the Owner Trustee or an affiliate thereof) shall within 10 Business
Days establish a new equivalent Eligible Deposit Account and shall transfer any
cash and/or any investments to such new account.
(b) Notwithstanding the foregoing, concurrently with, the execution and
delivery of any Indenture pursuant to which the Notes are issued, the Servicer
shall establish and maintain, or shall cause to be established and maintained,
at the direction of the Depositor, Trust Accounts in the name of and under the
control of the Indenture Trustee for the benefit of the Securityholders,
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in each case in accordance with Section 5.01 of the Sale and Servicing
Agreement. The Owner Trustee shall thereupon promptly transfer any cash and/or
investments then on deposit in the equivalent Trust Accounts maintained by it
pursuant to Section 5.01(a) to the newly established Trust Accounts on the terms
and conditions set forth in the Sale and Servicing Agreement and the Indenture.
The Indenture Trustee will be obligated to transfer back to the equivalent Trust
Accounts established pursuant to Section 5.01(a) all funds or investments held
or to be held in the Trust Accounts established pursuant to this Section 5.01(b)
on the Payment Date on which the Notes of all Classes have been paid in full or
the Indenture is otherwise terminated (excluding any amounts to be retained for
distribution in respect of Notes that are not promptly delivered for payment on
such Payment Date), and to take all necessary or appropriate actions to transfer
all right, title and interest of the Indenture Trustee in such funds or
investments and all proceeds thereof, to the Owner Trustee for the benefit of
the Certificateholders.
SECTION 5.02 APPLICATION OF AMOUNTS IN TRUST ACCOUNTS.
(a) For so long as any Notes are outstanding, on each Payment Date, the
Owner Trustee will take reasonable steps to determine that the Servicer has
properly delivered the Servicer's Certificate identifying how amounts on deposit
in the Trust Accounts are to be allocated and distributed and will instruct the
Indenture Trustee, or cause the Indenture Trustee to be instructed, to
distribute to Certificateholders, on a pro rata basis, the amounts distributable
thereto pursuant to Section 5.06 of the Sale and Servicing Agreement and Section
3.01 of the Indenture. From and after the date on which the Notes of all Classes
have been paid in full, on each Payment Date the Owner Trustee shall distribute
to Certificateholders, on a pro rata basis, amounts on deposit in the Collection
Account that are distributable to the Certificateholders in accordance with the
instructions of the Servicer pursuant to Sections 5.06(c), (d) and (e) of the
Sale and Servicing Agreement. Upon the release from the Lien of the Indenture of
amounts on deposit in any of the Trust Accounts or any other portion of the
Owner Trust Estate, the Owner Trustee will cause such property to be properly
deposited into Trust Accounts under the control of the Owner Trustee or
distributed to the Certificateholders on a pro rata basis in accordance with the
provisions of this Agreement, as the case may be.
(b) On each Payment Date, the Owner Trustee shall send to each
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 5.08 of the Sale and Servicing Agreement with respect to
such Payment Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance with
this Section. The Owner Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to the Certificateholders sufficient funds for
the payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to an Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to any distribution (such as any distribution to a Non-U.S.
Person), the Owner Trustee may in its sole discretion withhold such amounts in
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accordance with this paragraph (c). In the event that a Certificateholder wishes
to apply for a refund of any such withholding tax, the Owner Trustee shall
reasonably cooperate with such Certificateholder in making such claim so long as
such Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
SECTION 5.03 METHOD OF PAYMENT. Subject to Section 9.01(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the related Record Date
either by check mailed to such Certificateholder at the address of such holder
appearing in the Certificate Register or by wire transfer, in immediately
available funds, to the account of any Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided to the Certificate Registrar appropriate written instructions at
least five Business Days prior to such Payment Date.
SECTION 5.04 ACCOUNTING AND REPORTS TO THE NOTEHOLDERS,
CERTIFICATEHOLDERS, THE INTERNAL REVENUE SERVICE AND OTHERS. The Owner Trustee
shall (a) maintain (or cause to be maintained) the books of the Trust on a
calendar year basis on the accrual method of accounting, (b) deliver to each
Owner, as may be required by the Code and applicable Treasury Regulations, such
information as may be required (including Schedule K-1) to enable each Owner to
prepare its federal and state income tax returns, (c) file any tax and
information returns, and fulfill any other reporting requirements, relating to
the Trust, as may be required by the Code and applicable Treasury Regulations
(including Treasury Regulation Section 1.6049-7), (d) for any period during
which the beneficial ownership interests in the Trust are held by more than one
person, make such elections as may from time to time be required or appropriate
under any applicable state or federal statute or rule or regulation thereunder
so as to maintain the Trust's characterization as a partnership for federal
income tax purposes, (e) cause such tax returns to be signed in the manner
required by law and (f) collect or cause to be collected any withholding tax as
described in and in accordance with Section 5.02(c) with respect to income or
distributions to Certificateholders. The Owner Trustee shall elect under Section
1278 of the Code to include in income currently any market discount that accrues
with respect to the Receivables. The Owner Trustee shall not make the election
provided under Section 754 of the Code.
SECTION 5.05 SIGNATURE ON RETURNS; TAX MATTER PARTNER.
(a) The Owner Trustee shall sign on behalf of the Trust the tax returns
of the Trust, unless applicable law requires a Certificateholder to sign such
documents, in which case such documents shall be signed by the Administrator,
pursuant to the power-of-attorney granted thereto pursuant to Section 2.04.
(b) For any period during which the beneficial ownership interests of
the Trust are held by more than one person, the Certificateholder holding
Certificates evidencing the largest portion of the Initial Certificate Balance
shall be designated the "tax matters partner" of the Trust pursuant to Section
6231(a)(7)(A) of the Code and applicable Treasury Regulations, but hereby
delegates its powers and duties as such to the Administrator pursuant to the
power-of-attorney granted thereto pursuant to Section 2.04.
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ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01 GENERAL AUTHORITY. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment thereto, and, on behalf of the Trust, to direct the Indenture Trustee
to authenticate and deliver Class A-1 Notes in the aggregate principal amount of
$303,000,000, Class A-2 Notes in the aggregate principal amount of $284,000,000,
Class A-3 Notes in the aggregate principal amount of $334,093,000, Class B Notes
in the aggregate principal amount of $26,454,000 and Class C Notes in the
aggregate principal amount of $14,429,000. In addition to the foregoing, the
Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Trust, pursuant to the Basic Documents.
SECTION 6.02 GENERAL DUTIES. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the Basic Documents to which the Trust is a
party and to administer the Trust in accordance with the provisions hereof and
of the Basic Documents and in the interest of the Certificateholders.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be held
liable for the default or failure of the Administrator to carry out such
obligations or fulfill such duties under the Administration Agreement.
SECTION 6.03 DUTIES OF OWNER TRUSTEE.
(a) Subject to Article IV and in accordance with the terms of the Basic
Documents, the Certificateholders may by written instruction direct the Owner
Trustee in the management of the Trust. Such direction may be exercised at any
time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee, accepts the trusts hereby created and agrees to
perform its duties hereunder with respect to such trusts but only upon the terms
of this Agreement.
(c) The Owner Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Owner Trustee that shall be specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform on their face to the requirements of this Agreement.
(d) No provision of this Agreement shall be construed to relieve the
Owner 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) the duties and obligations of the Owner Trustee shall be
determined solely by the express provisions of this Agreement, the
Owner Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
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Agreement, no implied covenants or obligations shall be read into this
Agreement against the Owner Trustee, the permissive right of the Owner
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
Owner Trustee, the Owner 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 Owner
Trustee and conforming on their face to the requirements of this
Agreement;
(ii) the Owner Trustee shall not be personally liable for an
error of judgment made in good faith by a Trust Officer, unless it
shall be proved that the Owner Trustee was negligent in performing its
duties in accordance with the terms of this Agreement; and
(iii) the Owner 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 Certificateholders
representing at least a majority of the outstanding denominations of
Certificates held by Certificateholders (or such larger percentage as
may be required by any other provision of this Agreement or the other
Basic Documents).
(e) The Owner 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.
(f) All information obtained by the Owner Trustee regarding the
Obligors and the Receivables contained in the Trust, whether upon the exercise
of its rights under this Agreement or otherwise, shall be maintained by the
Owner Trustee in confidence and shall not be disclosed to any other Person,
unless such disclosure is required by any applicable law or regulation or
pursuant to subpoena.
(g) Pursuant to Section 3.02 of the Sale and Servicing Agreement, in
the event that the Owner Trustee discovers that a representation or warranty
with respect to a Receivable was incorrect as of the time specified with respect
to such representation and warranty and such incorrectness materially and
adversely affects the interests of the Trust in such Receivable, the Owner
Trustee shall give prompt written notice to the Servicer, the Depositor and the
Indenture Trustee of such incorrectness. Pursuant to Section 4.08 of the Sale
and Servicing Agreement, in the event that the Owner Trustee discovers that any
covenant of the Servicer set forth in Section 4.06 or 4.07 of the Sale and
Servicing Agreement has been breached by the Servicer and such incorrectness
materially and adversely affects the interests of the Trust in any Receivable,
the Owner Trustee shall give prompt written notice to the Servicer, the
Depositor and the Indenture Trustee of such breach.
SECTION 6.04 NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any Basic
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Document or otherwise contemplated hereby to which the Owner Trustee is a party,
except as expressly provided by the terms of this Agreement, any Basic Document
to which the Trust is a party or in any document or written instruction received
by the Owner Trustee pursuant to section 6.03. No implied duties or obligations
shall be read into this Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or otherwise to
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Agreement or any Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the Owner
Trust Estate.
SECTION 6.05 NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.03.
SECTION 6.06 RESTRICTIONS. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section
2.03 or (b) that, to the actual knowledge of the Owner Trustee, would result in
the Trust's becoming taxable as a corporation for Federal income tax purposes.
The Certificateholders shall not have the authority to and, by acceptance of an
ownership interest in any Certificate shall thereby be deemed to have covenanted
not to, direct the Owner Trustee to take action that would violate the
provisions of this Section.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01 RIGHTS OF OWNER TRUSTEE. Except as otherwise provided in
Article VI:
(a) in accordance with Section 7.04, the Owner Trustee may rely and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of an authorized signatory, 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;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Administrator, as provided in the Administration Agreement, or the
Certificateholders, as provided herein;
(c) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement or the Sale and Servicing
Agreement, or to institute, conduct or defend any litigation under this
Agreement, or in relation to this Agreement or the Sale and
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Servicing Agreement, at the request, order or direction of any of the
Securityholders pursuant to the provisions of this Agreement or the Sale and
Servicing Agreement, unless such Securityholders shall have offered to the Owner
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(e) the Owner Trustee shall not be bound to recalculate, reverify, or
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 Certificateholders representing not less than 25% based on outstanding
denomination of Certificates held by Certificateholders; PROVIDED, HOWEVER, that
if the payment within a reasonable time to the Owner Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Owner Trustee, not reasonably assured to
the Owner Trustee by the security afforded to it by the terms of this Agreement,
the Owner 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 Administrator or, if paid by the Owner Trustee,
shall be reimbursed by the Administrator 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
(f) the Owner Trustee shall not be liable for the default or misconduct
of the Administrator, the Servicer, the Depositor or the Indenture Trustee under
any of the Basic Documents or otherwise, and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Trust under the Basic
Documents that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indenture or the
Servicer under the Sale and Servicing Agreement.
SECTION 7.02 FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish
(a) to the Certificateholders promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents and (b) to Noteholders promptly upon
written request therefor, copies of the Sale and Servicing Agreement, the
Administration Agreement and the Trust Agreement.
SECTION 7.03 REPRESENTATIONS AND WARRANTIES. The Owner Trustee hereby
represents and warrants to the Depositor and for the benefit of the
Certificateholders, that:
(a) It is a national banking association duly organized and existing
and in good standing under the laws of the United States. It has full power,
authority and right to execute, deliver and perform its obligations under this
Agreement and each other Basic Document.
(b) It has taken all corporate action necessary to authorize the
execution and delivery of this Agreement and each other Basic Document, and this
Agreement and each other Basic
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Document has been executed and delivered by one of its officers duly authorized
to execute and deliver this Agreement and each other Basic Document on its
behalf.
(c) This Agreement constitutes the legal, valid and binding obligation
of the Owner Trustee, enforceable against it in accordance with its terms except
as the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
(d) It is authorized to exercise trust powers in the State of Delaware
as and to the extent contemplated herein or has appointed a Delaware trustee
that is so authorized and it has a principal place of business in the State of
Delaware or has appointed a Delaware trustee that has such a principal place of
business.
SECTION 7.04 RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a Certificate, signed by the president or any vice
president or by the treasurer or other authorized officers or agents of the
relevant party, as to such fact or matter and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under the Basic Documents, the
Owner Trustee (i) may act directly or through its agents or attorneys pursuant
to agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents or attorneys if such agents
or attorneys shall have been selected by the Owner Trustee with reasonable care,
and (ii) may consult with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such persons and not contrary to this Agreement or any Basic Document.
SECTION 7.05 NOT ACTING IN INDIVIDUAL CAPACITY. In accepting the trusts
hereby created, U.S. Bank National Association acts solely as Owner Trustee
hereunder and not in its individual capacity. Except with respect to a claim
based on the failure of the Owner Trustee to perform its duties under this
Agreement or based on the Owner Trustee's willful misconduct, bad faith or
negligence, no recourse shall be had for any claim based on any provision of
this Agreement, the Notes or Certificates, or based on rights obtained through
the assignment of any of the foregoing, against the institution serving as the
Owner Trustee in its individual capacity. The Owner Trustee shall not have any
personal obligation, liability or duty whatsoever to any Securityholder or any
other Person with respect to any such claim, and any such claim shall be
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asserted solely against the Trust or any indemnitor who shall furnish indemnity
as provided in this Indenture.
SECTION 7.06 OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES OR RECEIVABLES.
The Owner Trustee makes no representations as to the validity or sufficiency of
this Agreement or of the Certificates or of the Notes (other than the execution
by the Owner Trustee on behalf of the Trust of, and the certificate of
authentication on, the Certificates, and the direction of the Owner Trustee, on
behalf of the Trust, to the Indenture Trustee relating to the execution of the
Notes). The Owner Trustee shall have no obligation to perform any of the duties
of the Servicer or Administrator unless explicitly set forth in this Agreement.
The Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
the Certificates, the Notes or any Receivable, any ownership interest in any
Financed Vehicle, or the maintenance of any such ownership interest, or for or
with respect to the efficacy of the Trust or its ability to generate the
payments to be distributed to Securityholders under this Agreement and the
Indenture, including without limitation the validity of the assignment of the
Receivables to the Trust or of any intervening assignment; the existence,
condition, location and ownership of any Receivable or Financed Vehicle; the
existence and enforceability of any physical damage or credit life or credit
disability insurance; the existence and contents of any retail installment sales
contract or any computer or other record thereof; the completeness of any retail
installment sales contract; the performance or enforcement of any retail
installment sales contract; the compliance by the Trust with any covenant or the
breach by the Trust 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 Owner Trustee's receipt of notice or other discovery
of any noncompliance therewith or any breach thereof; the acts or omissions of
the Trust or the Servicer; or any action by the Owner Trustee taken at the
instruction of the Certificateholders, PROVIDED, HOWEVER, that the foregoing
shall not relieve the Owner Trustee of its obligation to perform its duties
under this Agreement.
The Owner Trustee shall not be accountable for the use or
application by the Issuer of any of the Certificates or of the proceeds of such
Certificates, of any of the Notes or of the proceeds of such Notes, or for the
use or application of any funds paid to the Servicer in respect of the
Certificates.
SECTION 7.07 OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositor, the Company, the
Administrator, the Indenture Trustee and the Servicer in banking or other
transactions with the same rights as it would have if it were not Owner Trustee.
SECTION 7.08 PENNSYLVANIA MOTOR VEHICLE SALES FINANCE ACT LICENSES. The
Owner Trustee, in its individual capacity, shall use its best efforts to
maintain, and the Owner Trustee, as Owner Trustee, shall cause the Trust to use
its best efforts to maintain, the effectiveness of all licenses required under
the Pennsylvania Motor Vehicle Sales Finance Act in connection with this
Agreement and the Basic Documents and the transactions contemplated hereby and
thereby until such time as the Trust shall terminate in accordance with the
terms hereof.
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ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01 OWNER TRUSTEE'S FEES AND EXPENSES. The Trust shall pay or
shall cause the Servicer to pay to the Owner Trustee from time to time
compensation for its services as have been separately agreed upon before the
date hereof, and the Owner Trustee shall be entitled to be reimbursed by the
Administrator for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
SECTION 8.02 INDEMNIFICATION. The Administrator shall, pursuant to the
Administration Agreement and the following provisions, reimburse the Owner
Trustee for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Owner Trustee's agents, counsel, accountants
and experts directly related to its services hereunder ("Expenses") The
Administrator shall indemnify or shall cause the Servicer to indemnify the Owner
Trustee against any and all loss, liability or expense (including attorneys'
fees) incurred by it in connection with the administration of this trust and the
performance of its duties hereunder. The Owner Trustee shall notify the
Administrator and the Servicer promptly of any claim for which it may seek
indemnity. Failure by the Owner Trustee to so notify the Administrator and the
Servicer shall not relieve the Administrator or the Servicer of its obligations
hereunder, where such failure shall affect the Administrator's or Servicer's
defenses in respect thereof. In case any such action is brought against the
Owner Trustee under this Section 8.02 and it notifies the Administrator of the
commencement thereof, the Administrator will assume the defense thereof, with
counsel reasonably satisfactory to the Owner Trustee (who may, unless there is,
as evidenced by an opinion of counsel to the Owner Trustee stating that there is
an unwaivable conflict of interest, be counsel to the Administrator), and the
Administrator will not be liable to the Owner Trustee under this Section for any
legal or other expenses subsequently incurred by the Owner Trustee in connection
with the defense thereof, other than reasonable costs of investigation. Neither
the Administrator nor the Servicer need reimburse any expense or indemnify
against any loss, liability or expense incurred by the Owner Trustee through the
Owner Trustee's own willful misconduct, negligence or bad faith.
SECTION 8.03 PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid to the
Owner Trustee pursuant to this Article VIII from assets in the Owner Trust
Estate shall be deemed not to be a part of the Owner Trust Estate immediately
after such payment.
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ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01 TERMINATION OF TRUST AGREEMENT.
(a) This Agreement (other than Article VIII) shall terminate and the
Trust shall dissolve and be of no further force or effect, upon the earliest of
(i) the maturity or other liquidation of the last Receivable (or other asset) in
the Owner Trust Estate and the final distribution by the Owner Trustee of all
moneys or other property or proceeds of the Owner Trust Estate in accordance
with the terms of this Agreement, the Indenture and the Sale and Servicing
Agreement (including, but not limited to, any property and proceeds to be
deposited in the Collection Account pursuant to Sections 3.02, 4.08, 5.02, 5.04,
5.05, 5.06 or 9.01 of the Sale and Servicing Agreement or to be released by the
Indenture Trustee from the Lien of the Indenture pursuant to Section 10.01 or
10.02 of the Indenture), (ii) the payment or distribution to all Securityholders
of all amounts specified in Sections 3.02, 4.08, 5.02, 5.04, 5.05, 506 or 9.01
of the Sale and Servicing Agreement or (iii) the dissolution of the Trust that
results from the occurrence of an Insolvency Event with respect to the Depositor
as provided in Section 9.02. The bankruptcy, liquidation, dissolution, death or
incapacity of any Certificateholder other than the Depositor shall not (x)
operate to terminate this Agreement or the Trust, nor (y) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or Owner Trust Estate nor (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date
upon which the Certificateholders shall surrender their Certificates to the
Paying Agent for payment of the final distributions and cancellation, shall be
given by the Owner Trustee to Certificateholders mailed within five Business
Days of receipt of notice of such termination from the Servicer given pursuant
to Section 10.03 of the Sale and Servicing Agreement, stating (i) the Payment
Date upon or with respect to which final payment of the Certificates shall be
made upon presentation and surrender of the Certificates at the office of the
Paying Agent therein designated, (ii) the amount of any such final payment and
(iii) that payment to be made on such Payment Date will be made only upon
presentation and surrender of the Certificates at the office of the Paying Agent
therein specified. The Owner Trustee shall give such notice to the Certificate
Registrar (if other than the Owner Trustee) and the Paying Agent (if other than
the Owner Trustee) at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Paying Agent shall cause to
be distributed to Certificateholders amounts distributable on such Payment Date
pursuant to Section 5.02.
In the event that one or more of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have
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been surrendered for cancellation, the Owner 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 shall remain
subject to this Agreement. Any funds remaining in the Trust after exhaustion of
such remedies shall be distributed by the Owner Trustee to the Depositor.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3820 of the Business Trust Statute.
SECTION 9.02 DISSOLUTION UPON INSOLVENCY OF THE DEPOSITOR. In the event
that an Insolvency shall occur with respect to the Depositor, this Agreement
shall be terminated in accordance with Section 9.01 90 days after the date of
such Insolvency Event, unless, before the end of such 90-day period, the Owner
Trustee shall have received written instructions from (A) the Indenture Trustee
(or the Indenture Trustee acting on behalf of the Class A Notes pursuant to
Section 5.04(c) of the Indenture) or the Holders of at least 51% of the
Outstanding Amount of the Class A Notes acting together as a single Class
(without the consent of the Class B Notes or the Class C Notes) or (B) after the
Class A Notes have been paid in full, the Indenture Trustee (or the Indenture
Trustee acting on behalf of the Class B Notes pursuant to Section 5.04(c) of the
Indenture) or the Holders of at least 51% of the Outstanding Amount of the Class
B Notes (without the consent of any Holder of the Class C Notes) or (C) after
the Class B Notes have been paid in full, the Indenture Trustee (or the
Indenture Trustee acting on behalf of the Class C Notes pursuant to Section
5.04(c) of the Indenture) or the Holders of at least 51% of the Outstanding
Amount of the Class C Notes (in each case excluding for such purposes the
outstanding principal amount of any Notes held of record or beneficially owned
by TMCC, TMCRC or any of their Affiliates), or if only Certificates are then
outstanding, Holders of at least 51% of the Certificate Balance, to the effect
that the Receivables should not be liquidated and the Trust should not be
terminated. Promptly after the occurrence of any Insolvency Event with respect
to the Depositor, (A) the Depositor shall give the Indenture Trustee, the Owner
Trustee and each Rating Agency written notice of such Insolvency Event and (B)
upon the receipt of such written notice from the Depositor, the Indenture
Trustee and Owner Trustee, respectively, shall give prompt written notice
thereof to the Noteholders and Certificateholders; PROVIDED, HOWEVER, that any
failure to give a notice required by this sentence to a party not then entitled
to instruct the Owner Trustee that the dissolution should not occur shall not
prevent or delay, in any manner, a termination of the Trust pursuant to the
first sentence of this Section 9.02. Upon a termination pursuant to this Section
9.02, the Owner Trustee promptly shall, or if any Notes are outstanding, the
Indenture Trustee (or relevant Indenture Trustee for the relevant Class or
Classes of Notes pursuant to Section 5.04(e) of the Indenture) shall, promptly
sell the assets of the Trust (other than funds on deposit in the Collection
Account, Payahead Account and Reserve Fund) in a commercially reasonable manner
and on commercially reasonable terms and, if any Notes are outstanding, in
accordance with the terms of the Indenture. The proceeds of such a sale of the
assets of the Trust shall be treated as collections under the Sale and Servicing
Agreement and shall be deposited in the Collection Account and distributed
pursuant to the terms of Section 5.06 of the Sale and Servicing Agreement.
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ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be an entity having a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by federal or
state authorities. If such entity 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 10.01, 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 Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Owner Trustee shall resign
immediately in the manner and with the effect specified in Section 10.02.
SECTION 10.02 RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Depositor, the Servicer and the
Indenture Trustee. If at any time the Owner Trustee is deemed to have a conflict
of interest under the TIA, because of its roles as both Owner Trustee hereunder
and Indenture Trustee under the Indenture, the Owner Trustee shall resign as
Owner Trustee hereunder. U.S. Bank National Association, in its capacity as
Owner Trustee, shall also resign as Owner Trustee hereunder if any Event of
Default under the Indenture occurs and is necessary to eliminate any conflict of
interest under the TIA with the Indenture Trustee or any other trustee under the
Indenture. Upon receiving such notice of resignation, the Servicer shall
promptly appoint a successor Owner Trustee by written instrument, in duplicate,
one copy of which shall be delivered to each of the resigning Owner Trustee and
the successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed or shall not have accepted such appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign
promptly, or if at any time the Owner Trustee shall be legally unable to act, or
shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or
of its property shall be appointed, or any public officer shall take charge or
control of the Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Administrator may remove
the Owner Trustee by written instrument to such effect delivered to the Owner
Trustee, the Depositor and the Indenture Trustee. If the Administrator shall
remove the Owner Trustee under the authority of the immediately preceding
sentence, the Servicer shall promptly appoint a successor Owner Trustee by
written instrument in duplicate, one copy of which instrument shall be delivered
to each of the outgoing Owner Trustee so removed the successor Owner Trustee and
payment of all fees, expenses and other compensation owed to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall
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provide notice of such resignation or removal of the Owner Trustee to each of
the Rating Agencies.
SECTION 10.03 SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective and such successor Owner
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 Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Administrator and the predecessor Owner 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 Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
meet the criteria for eligibility set forth in Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Administrator fails to mail such notice within 10
days after acceptance of appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
SECTION 10.04 MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such corporation shall be eligible pursuant to Section 10.01, 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; PROVIDED,
FURTHER, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
SECTION 10.05 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 Owner Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, 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
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have
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joined in such appointment within 25 days after the receipt by it of a request
so to do, the Owner 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 10.01 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provision and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner 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 Owner 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,
the Owner 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 Owner 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 Administrator and the Owner Trustee acting jointly
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 Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as if given to each of them. Each separate trustee and co-trustee,
upon its acceptance of the powers and duties conferred thereto under this
Agreement, shall be vested with the estates or specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement, specifically
including every provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the Owner Trustee. Each
such instrument shall be filed with the Owner Trustee and a copy thereof given
to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as 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
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
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ARTICLE XI
AUTHORITY AND DUTIES OF DELAWARE CO-TRUSTEE
SECTION 11.01 GENERAL AUTHORITY OF DELAWARE CO-TRUSTEE The Delaware
Co-Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
In accordance with the terms of the Basic Documents, the Certificateholders may
by written instruction direct the Delaware Co-Trustee in the execution of its
duties under this Agreement. Such direction may be exercised at any time by
written instruction of the Certificateholders to the Delaware Co-Trustee.
SECTION 11.02 DUTIES OF DELAWARE CO-TRUSTEE
(a) It is understood and agreed that the duties and responsibilities of
the Delaware Co-Trustee shall be limited to (a) accepting legal process served
on the Trust in the State of Delaware and (b) the execution and delivery of all
documents, and the maintenance of all records, necessary to form and maintain
the existence of the Trust under the Business Trust Statute.
(b) Except as otherwise expressly required by Section 11.02(a) above,
the Delaware Co-Trustee shall not have any duty or liability with respect to the
administration of the Trust, the investment of the Owner Trust Estate or the
Trust Estate or the payment of dividends or other distributions of income or
principal to the Certificateholders or any of the Trust's beneficiaries.
(c) The Delaware Co-Trustee shall not be liable for the acts or
omissions of the Owner Trustee, the Indenture Trustee or the Administrator, nor
shall the Delaware Co-Trustee be liable for supervising or monitoring the
performance of the duties and obligations of the Owner Trustee, the Indenture
Trustee, the Administrator or the Trust or duties and obligations of any of the
foregoing under any of the Basic Documents. The Delaware Co-Trustee shall not be
personally liable under any circumstances, except for its own willful misconduct
or gross negligence. In particular, but not by way of limitation:
(a) The Delaware Co-Trustee shall not be personally liable
for any error of judgment made in good faith;
(b) No provision of this Agreement shall require the Delaware
Co-Trustee to expend or risk its personal funds or otherwise incur any financial
liability in the performance of its rights or powers hereunder, if the Delaware
Co-Trustee shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assures or provided to it;
(c) Under no circumstance shall the Delaware Co-Trustee be
personally liable for any representation, warranty, covenant, agreement, or
indebtedness of the Trust;
(d) The Delaware Co-Trustee shall not be personally
responsible for or in respect of the validity or sufficiency of this Agreement
or for the due execution hereof by the Owner Trustee or the Depositor;
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(e) The Delaware Co-Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of an authorized signatory, 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;
(f) the Delaware Co-Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in accordance with the
instructions of the Administrator, as provided in the Administration Agreement,
or the Certificateholders, as provided herein;
(g) In the exercise or administration of the Trusts
hereunder, the Delaware Co-Trustee (i) may act directly or through agents or
attorneys pursuant to agreements entered into with any of them, and the Delaware
Co-Trustee shall not be liable for the default or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Delaware
Co-Trustee in good faith and (ii) may consult with counsel, accountants and
other skilled persons to be selected in good faith and employed by it, and it
shall not be liable for anything done, suffered or omitted in good faith by it
in accordance with the advice or such Opinion of Counsel, accountants or other
skilled persons;
(h) The Delaware Co-Trustee shall be entitled to all of the
other benefits and protection provided to the Owner Trustee in this Agreement;
and
(i) Except as expressly provided in this Section 11.02, in
accepting and performing the Trust hereby created the Delaware Co-Trustee acts
solely as co-trustee hereunder and not in its individual capacity, and all
persons having any claim against the Delaware Co-Trustee by reason of the
transactions contemplated by this Agreement shall look only to the Administrator
for payment or satisfaction thereof.
SECTION 11.03 REPRESENTATIONS AND WARRANTIES OF DELAWARE CO-TRUSTEE The
Delaware Co-trustee hereby represents and warrants to the Depositor and for the
benefit of the Certificateholders, that:
(a) It is a national banking association duly organized and existing
and in good standing under the laws of the United States. It has full power,
authority and right to execute, deliver and perform its obligations under this
Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery of this Agreement, and this Agreement has been executed
and delivered by one of its officers duly authorized to execute and deliver this
Agreement on its behalf.
(c) This Agreement constitutes the legal, valid and binding obligation
of the Delaware Co-Trustee, enforceable against it in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
(d) It is authorized to exercise trust powers in the State of Delaware
as and to the extent contemplated herein and it has a principal place of
business in the State of Delaware.
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SECTION 11.04 COMPENSATION OF DELAWARE CO-TRUSTEE The Trust shall pay
or shall cause the Servicer to pay to the Delaware Co-Trustee from time to time
compensation for its services as have been separately agreed upon before the
date hereof, and the Delaware Co-Trustee shall be entitled to be reimbursed by
the Administrator for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Delaware Co-Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
SECTION 11.05 INDEMNIFICATION OF DELAWARE CO-TRUSTEE The Administrator
shall, pursuant to the Administration Agreement and the following provisions,
reimburse the Delaware Co-Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Delaware
Co-Trustee's agents, counsel, accountants and experts directly related to its
services hereunder The Administrator shall indemnify or shall cause the Servicer
to indemnify the Delaware Co-Trustee against any and all loss, liability or
expense (including attorneys' fees) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder. The
Delaware Co-Trustee shall notify the Administrator and the Servicer promptly of
any claim for which it may seek indemnity. Failure by the Delaware Co-Trustee to
so notify the Administrator and the Servicer shall not relieve the Administrator
or the Servicer of its obligations hereunder, where such failure shall affect
the Administrator's or Servicer's defenses in respect thereof. In case any such
action is brought against the Delaware Co-Trustee covered by this Section 11.05
or any action for which the Delaware Co-Trustee is entitled to indemnification
by the Administrator under the Administration Agreement, and it notifies the
Administrator of the commencement thereof, the Administrator will assume the
defense thereof, with counsel reasonably satisfactory to the Delaware Co-Trustee
(who may, unless there is, as evidenced by an opinion of counsel to the Delaware
Co-Trustee stating that there is an unwaivable conflict of interest, be counsel
to the Administrator), and the Administrator will not be liable to the Delaware
Co-Trustee under this Section for any legal or other expenses subsequently
incurred by the Delaware Co-Trustee in connection with the defense thereof,
other than reasonable costs of investigation.. Neither the Administrator nor the
Servicer need reimburse any expense or indemnify against any loss, liability or
expense incurred by the Delaware Co-Trustee through the Delaware Co-Trustee's
own willful misconduct, negligence or bad faith.
SECTION 11.06 RESIGNATION OR REMOVAL OF DELAWARE CO-TRUSTEE The
Delaware Co-trustee may resign upon thirty days notice to the Owner Trustee and
the Certificateholders; PROVIDED, HOWEVER, that a successor Delaware Co-trustee
satisfactory to the Owner Trustee and the Certificateholders shall have been
appointed and agreed to serve. If a successor Delaware Co-Trustee shall not have
been appointed within such thirty day period, the Delaware Co-Trustee may apply
to the Court of Chancery of the State of Delaware for the appointment of a
successor Delaware Co-Trustee.
SECTION 11.07 PAYMENTS TO THE DELAWARE CO-TRUSTEE. Any amounts paid to
the Delaware Co-Trustee pursuant to this Article VIII from assets in the Owner
Trust Estate shall be deemed not to be a part of the Owner Trust Estate
immediately after such payment.
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ARTICLE XII
MISCELLANEOUS
SECTION 12.01 SUPPLEMENTS AND AMENDMENTS. This Agreement may be amended
by the Depositor, the Owner Trustee and the Delaware Co-trustee, with prior
written notice to the Rating Agencies, without the consent of any of the
Noteholders or the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions in
this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders, if (a) the Indenture Trustee and Owner Trustee receive
an Opinion of Counsel to the effect that such action will not adversely affect
in any material respect the interests of any Noteholder or Certificateholder, or
(b) the Indenture Trustee or Owner Trustee, as the case may be, have received
the consent of (i) the Holders of at least 51% of the Outstanding Amount of the
Class A Notes acting as a single Class (without the consent of the Class B Notes
or the Class C Notes) or (ii) after the Class A Notes have been paid in full,
the Holders of at least 51% of the outstanding principal amount of Class B Notes
(without the consent of any holder of the Class C Notes) or (iii) after the
Class B Notes have been paid in full, the Holders of at least 51% of the
outstanding principal amount of Class C Notes (in each case excluding for such
purposes the outstanding principal amount of any Notes held of record or
beneficially owned by TMCC, TMCRC or any of their Affiliates) or (iv) if the
Class C Notes have been paid in full, the Holders of Certificates evidencing not
less than 51% of the Certificate Balance PROVIDED, HOWEVER, that no such
amendment made pursuant to clause (b) above shall (i) 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 for
the benefit of the Noteholders or the Certificateholders or (ii) reduce the
aforesaid percentage of the Outstanding Amount of the Notes and the Certificate
Balance required to consent to any such amendment, without the consent of the
Holders of all the affected Notes and Certificates.
This Agreement may also be amended from time to time by the Depositor,
the Owner Trustee, the Delaware Co-Trustee and the Indenture Trustee without the
consent of any of the Noteholders or the Certificateholders for purposes of
changing the formula for determining the Specified Reserve Account Balance, the
manner in which the Reserve Account is funded (i.e. to allow the deposit of cash
therein by any Person, but not to change any order of priority of payments and
distributions specified in Section 5.06 of the Sale and Servicing Agreement)
changing the remittance schedule for the deposit of collections in the
Collection Account or Payahead Account or changing the definition of Eligible
Investments, if (a) the Owner Trustee and Indenture Trustee have received from
each Rating Agency that has rated any outstanding Class of Notes of its written
confirmation that such amendment will not result in the qualification,
withdrawal or modification of the rating then assigned by such Rating Agency to
any Class of Notes, without the consent of any of the Noteholders or the
Certificateholders, or (b) the Indenture Trustee or Owner Trustee, as the case
may be, have received the consent of (i) the Holders of at least 51% of the
Outstanding Amount of the Class A Notes (without the consent of the Class B
Notes or the Class C Notes) or (ii) after the Class A Notes have been paid in
full, the Holders of at least 51% of the outstanding principal amount of Class B
Notes (without the consent of any holder of the Class C Notes) or (iii) after
the Class B Notes have been paid in full, the Holders of at least 51% of the
outstanding principal amount of Class C Notes (in each
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case excluding for such purposes the outstanding principal amount of any Notes
held of record or beneficially owned by TMCC, TMCRC or any of their Affiliates)
or (iv) if the Class C Notes have been paid in full, the Holders of Certificates
evidencing not less than 51% of the Certificate Balance or (c) the Indenture
Trustee has received the consent of Holders of at least 51% of the Outstanding
Amount of all Notes and the Certificate Balance, voting as a single Class (in
each case excluding for such purposes the outstanding principal amount of any
Notes or Certificates held of record or beneficially owned by TMCC, TMCRC or any
of their Affiliates); PROVIDED, HOWEVER, that no such amendment shall (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 for the benefit of the Noteholders or the Certificateholders
or (b) reduce the aforesaid percentage of the Outstanding Amount of the Notes
and the Certificate Balance required to consent to any such amendment, without
the consent of the Holders of all the effected Notes and Certificates.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and each
of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to this Section 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 any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner 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. Neither the Owner Trustee nor the
Delaware Co-trustee shall be obligated to, enter into any such amendment which
affects the Owner Trustee's or Delaware Co-trustee's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 12.02 NO LEGAL TITLE TO OWNER TRUST ESTATE IN
CERTIFICATEHOLDERS. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title, or interest of the Certificateholders to and in
their ownership interest in the Owner Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION 12.03 LIMITATIONS ON RIGHTS OF OTHERS. Except for Section 2.06,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Delaware
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Co-Trustee, the Depositor, TMCC, the Certificateholders, the Administrator and,
to the extent expressly provided herein the Indenture Trustee, the Noteholders,
and nothing in this Agreement, (other than Section 2.06), whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 12.04 NOTICES.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon receipt
by the intended recipient or three Business Days after mailing if mailed by
certified mail, postage prepaid (except that notice to the Owner Trustee shall
be deemed given only upon actual receipt by the Owner Trustee), if to the Owner
Trustee, addressed to the Corporate Trust Office; if to the Delaware Co-Trustee,
addressed to First Union Trust Company, National Association, One Rodney Square,
Suite 102, 920 King Street, Wilmington, Delaware 19801; if to the Depositor,
addressed to Toyota Motor Credit Receivables Corporation, 19300 Gramercy Place,
North Building, Torrance, California 90509, Attention: President; if, to the
Trust, addressed to Toyota Auto Receivables Owner Trust 1999-A, 19001 South
Western Avenue, Torrance, California 90509, Attention: Treasury Department: Vice
President, Treasury; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given 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 receives such notice.
SECTION 12.05 SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid or unenforceable in any jurisdiction, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 12.06 COUNTERPARTS. 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 12.07 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Company, the Owner Trustee and its successors and each Owner and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by an Owner
shall bind the successors and assigns of such owner.
SECTION 12.08 NO PETITION. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, hereby
covenants and agrees, and each Certificateholder, by accepting a Certificate,
and the Indenture Trustee and any Noteholder
34
<PAGE>
by accepting the benefits of this Agreement, are thereby deemed to covenant and
agree that they will not at any time institute against the Depositor or the
Trust, or join in any institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law. This
Section 11.09 shall survive the termination of this Agreement or the termination
of the Owner Trustee under this Agreement.
SECTION 12.09 NO RECOURSE. Each Certificateholder by accepting an
interest in a Certificate acknowledges that such Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, TMCC (in any capacity), the Administrator, the
Owner Trustee, the Indenture Trustee or any Affiliate thereof and no recourse
may be had against such parties or their assets, except as may be expressly set
forth or contemplated in the Certificates or the Basic Documents.
SECTION 12.10 HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 12.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 12.12 TMCC PAYMENT OBLIGATION. The parties hereto acknowledge
and agree that, pursuant to the Sale and Servicing Agreement and the following
provisions, the Servicer shall be responsible for payment of the Administrator's
fees under the Administration Agreement and shall reimburse the Administrator
for all expenses and liabilities of the Administrator incurred thereunder. In
addition, the parties hereto acknowledge and agree that, pursuant to the Sale
and Servicing Agreement and the following provisions, the Servicer shall be
responsible for the payment of all fees and expenses of the Trust, the Owner
Trustee and the Indenture Trustee paid by any of them in connection with any of
their obligations under the Basic Documents to obtain or maintain any required
license under the Pennsylvania Motor Vehicle Sales Finance Act. The parties
hereto covenant and agree that neither of them shall look to the other for
payment of any such fees or expenses.
35
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION,
Depositor
By: /s/ Lloyd Mistele
-------------------------------------------
Name: Lloyd Mistele
Title: President
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Edward F. Kachinski
-------------------------------------------
Name: Edward F. Kachinski
Title: Vice President
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Delaware Co-trustee
By: /s/ Sterling C. Correia
-------------------------------------------
Name: Sterling C. Correia
Title: Vice President
S-1
<PAGE>
------------
EXHIBIT A
------------
(FORM OF CERTIFICATE)
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER, THE ADMINISTRATOR, TMCC, TMCRC
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE 1933 ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE 1933 ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE 1933 ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D
OF THE 1933 ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE OWNER TRUSTEE
SHALL HAVE RECEIVED A REPRESENTATION FROM THE TRANSFEREE HEREOF IN FORM AND
SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE TO THE EFFECT THAT: (1) 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 THIS 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
A-1
<PAGE>
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 (2) SUCH TRANSFEREE IS A PLAN OR IS AN INSURANCE COMPANY
PURCHASING THIS CERTIFICATE WITH FUNDS CONTAINED IN AN INSURANCE COMPANY GENERAL
ACCOUNT, BUT HAVING ATTACHED THERETO AN OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE, WHICH OPINION SHALL NOT BE AN EXPENSE OF EITHER THE OWNER TRUSTEE OR
THE TRUST, ADDRESSED TO THE OWNER TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF SUCH CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE OWNER TRUST
ESTATE BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE AND WILL NOT SUBJECT THE OWNER
TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS
AGREEMENT OR TO ANY LIABILITY.
NUMBER $____________
R-1 CUSIP NO. N/A
TOYOTA AUTO RECEIVABLES 1999-A OWNER TRUST
ASSET BACKED CERTIFICATE
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 new and used automobiles and light duty trucks and sold to the Trust by
Toyota Motor Credit Receivables Corporation ("TMCRC").
(This Certificate does not represent an interest in or obligation of TMCRC,
Toyota Motor Credit Corporation ("TMCC"), Toyota Motor Sales, U.S.A., Inc. or
any of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT TOYOTA MOTOR CREDIT CORPORATION is the registered
owner of $586.54 DOLLARS nonassessable, fully-paid, fractional undivided
interest in Toyota Auto Receivables 1999-A Owner Trust (the "Trust") formed by
TMCRC.
The Trust was created pursuant to a Trust Agreement dated as of July 1,
1999, (as amended and supplemented from time to time, including the Amended and
Restated Trust Agreement dated as of July 1, 1999, the "Trust Agreement"),
between TMCRC, as depositor (the "Depositor"), U.S. Bank National Association,
as owner trustee (the "Owner Trustee") and First Union Trust Company, National
Association, as Delaware Co-trustee, a summary of certain of the pertinent
provisions of which is set forth below. Capitalized terms used herein and not
otherwise defined have the meanings ascribed thereto in the Trust Agreement, the
Indenture or in the Sale and Servicing Agreement dated as of July 1, 1999 (the
"Sale and Servicing Agreement"), among the Trust, the Depositor and TMCC, as
servicer (the "Servicer"), as applicable.
A-2
<PAGE>
This Certificate is one of the duly authorized Certificates designated
as "Asset Backed Certificates" (the "Certificates") issued pursuant to the Trust
Agreement. Certain debt instruments evidencing obligations of the Trust have
been issued under an Indenture dated as of July 1, 1999, between the Trust and
U.S. Bank National Association, as indenture trustee (the "Indenture Trustee"),
consisting of five classes of Notes designated as "Class A-1 5.365% Asset Backed
Notes", "Class A-2 5.800% Asset Backed Notes", "Class A-3 6.150% Asset Backed
Notes", "Class B 6.300% Asset Backed Notes" and "Class C 6.700% Asset Backed
Notes" (collectively, the "Notes"). This Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement to which
Trust Agreement the holder of this Certificate by virtue of the acceptance
hereof assents and by which such holder is bound. The property of the Trust
includes a pool of retail installment sale contracts secured by new and used
automobiles and light duty trucks (the "Receivables", all monies due thereunder
on or after July 1, 1999, in the case of Precomputed Receivables or received
after such date in the case of Simple Interest Receivables, security interests
in the vehicles financed thereby, certain bank accounts and the proceeds
thereof, proceeds from claims on certain insurance policies and certain other
rights under the Trust Agreement and the Sale and Servicing Agreement and all
proceeds of the foregoing.
Under the Trust Agreement, there will be distributed on the 15th day of
each month or, if such 15th day is not a Business Day, the next Business Day,
(each, a "Payment Date"), commencing on August 16, 1999, to the person in whose
name this Certificate is registered at the close of business on the related
Record Date, such Certificateholder's pro rata portion of the amounts to be
distributed to Certificateholders on such Payment Date in respect of amounts
distributable to the Certificateholders pursuant to Section 5.06 of the Sale and
Servicing Agreement.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement and
the Indenture.
It is the intent of the Depositor, TMCC and the Certificateholders
that, for purposes of federal income tax, state and local income tax, any state
single business tax and any other income taxes, the Trust will be treated as a
partnership, and the Certificateholders will be treated as partners in that
partnership, for any period during which the beneficial ownership interests in
the Trust are held by more than one person. Each Certificateholder by acceptance
of a Certificate or any beneficial interest on a Certificate, agree to treat,
and to take no action inconsistent with the treatment of, the Certificates as
partnership interests in the Trust for such tax purposes.
Each Certificateholder or Certificate Owner, by its acceptance of a
Certificate or any beneficial interest in a Certificate, covenants and agrees
that such Certificateholder or Certificate Owner, as the case may be, will not
at any time institute against the Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates, the Notes, the
Trust Agreement or any of the Basic Documents.
A-3
<PAGE>
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer or check mailed to each
Certificateholder of record without the presentation or surrender of this
Certificate or the making of any notation hereon. Except as otherwise provided
in the Trust Agreement and notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Owner Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in Chicago, Illinois or the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement or the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
TOYOTA AUTO RECEIVABLES 1999-A OWNER TRUST
By: U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
an Owner Trustee
Dated: July 22, 1999 By:
------------------------------------
Authorized Signatory
A-4
<PAGE>
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
U.S. Bank National Association,
as Owner Trustee
By:
-----------------------------------
Authorized Signatory
A-5
<PAGE>
(REVERSE OF CERTIFICATE)
The Certificates do not represent an obligation of, or an interest in,
TMCC, TMCRC, Toyota Motor Sales, U.S.A., Inc. or any of their Affiliates and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated herein or in the Trust Agreement or the
Basic Documents. In addition, this Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections with respect to the Receivables (and certain other amounts),
all as more specifically set forth herein and in the Sale and Servicing
Agreement. A copy of each of the Sale and Servicing Agreement and the Trust
Agreement may be examined during normal business hours at the principal office
of the Depositor, and at such other places, if any, designated by the Depositor,
by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by (i) the Depositor, the Owner Trustee and the Delaware Co-Trustee,
with prior written notice to the Rating Agencies, without the consent of any of
the Noteholders or the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions in
this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders, if (a) the Indenture Trustee and Owner Trustee receive
an Opinion of Counsel to the effect that such action will not adversely affect
in any material respect the interests of any Noteholder or Certificateholder, or
(b) the Indenture Trustee or Owner Trustee, as the case may be, have received
the consent of (i) the Holders of at least 51% of the Outstanding Amount of the
Class A Notes acting as a single Class (without the consent of the Class B Notes
or the Class C Notes) or (ii) after the Class A Notes have been paid in full,
the Holders of at least 51% of the Outstanding Amount of the Class B Notes
(without the consent of any holder of the Class C Notes) or (iii) after the
Class B Notes have been paid in full, the Holders of at least 51% of the
Outstanding Amount of the Class C Notes (in each case excluding for such
purposes the outstanding principal amount of any Notes held of record or
beneficially owned by TMCC, TMCRC or any of their Affiliates) or (iv) if the
Class C Notes have been paid in full, the Holders of Certificates evidencing not
less than 51% of the Certificate Balance PROVIDED, HOWEVER, that no such
amendment made pursuant to clause (b) above shall (i) 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 for
the benefit of the Noteholders or the Certificateholders or (ii) reduce the
aforesaid percentage of the Outstanding Amount of the Notes and the Certificate
Balance required to consent to any such amendment, without the consent of the
Holders of all the affected Notes and Certificates.
The Trust Agreement may also be amended from time to time by the
Depositor, the Owner Trustee, the Delaware Co-trustee and the Indenture Trustee
for purposes of changing the formula for determining the Specified Reserve
Account Balance, the manner in which the Reserve Account is funded (i.e. to
allow the deposit of cash therein by any Person, but not to change any order of
priority of payments and distributions specified in Section 5.06 of the Sale and
Servicing Agreement) changing the remittance schedule for the deposit of
collections in the Collection Account or Payahead Account or changing the
definition of Eligible Investments, if (a) the Owner Trustee and Indenture
Trustee have received from each Rating Agency that has
A-6
<PAGE>
rated any outstanding Class of Notes of its written confirmation that such
amendment will not result in the qualification, withdrawal or modification of
the rating then assigned by such Rating Agency to any Class of Notes, without
the consent of any of the Noteholders or the Certificateholders, or (b) the
Indenture Trustee or Owner Trustee, as the case may be, have received the
consent of (i) the Holders of at least 51% of the Outstanding Amount of the
Class A Notes (without the consent of the Class B Notes or the Class C Notes) or
(ii) after the Class A Notes have been paid in full, the Holders of at least 51%
of the Outstanding Amount of the Class B Notes (without the consent of any
holder of the Class C Notes) or (iii) after the Class B Notes have been paid in
full, the Holders of at least 51% of the Outstanding Amount of the Class C Notes
(in each case excluding for such purposes the outstanding principal amount of
any Notes held of record or beneficially owned by TMCC, TMCRC or any of their
Affiliates) or (iv) if the Class C Notes have been paid in full, the Holders of
Certificates evidencing not less than 51% of the Certificate Balance or (c) the
Indenture Trustee has received the consent of Holders of at least 51% of the
Outstanding Amount of all Notes and the Certificate Balance, voting as a single
Class (in each case excluding for such purposes the outstanding principal amount
of any Notes or Certificates held of record or beneficially owned by TMCC, TMCRC
or any of their Affiliates); PROVIDED, HOWEVER, that no such amendment shall (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 for the benefit of the Noteholders or the Certificateholders
or (b) reduce the aforesaid percentage of the Outstanding Amount of the Notes
and the Certificate Balance required to consent to any such amendment, without
the consent of the Holders of all the effected Notes and Certificates.
As provided in the Trust Agreement, and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in Chicago, Illinois or the Borough of Manhattan in The City
of New York, accompanied by a written instrument of transfer in form
satisfactory to the Owner 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 Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee or transferees. The initial Certificate Registrar appointed under the
Trust Agreement is U.S. Bank National Association, 111 East Wacker Drive, Suite
3000, Chicago, Illinois 60601.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $.01 and in integral multiples of $.01 in excess
thereof. As provided in the Trust Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of
authorized denominations evidencing the same aggregate denomination, as
requested by the holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Certificate is registered as the
A-7
<PAGE>
owner hereof for all purposes and none of the Owner Trustee, the Certificate
Registrar or any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust 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 Trust Agreement and
the Sale and Servicing Agreement and the disposition of all property held as
part of the Owner Trust Estate. TMCC, as servicer of the Receivables under the
Sale and Servicing Agreement, or any successor servicer, may at its option
purchase the corpus of the Trust at a price specified in the Sale and Servicing
Agreement, and any 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 after the last day of the Collection Period as of
which the Pool Balance is less than or equal to 10% of the Original Pool
Balance.
A-8
<PAGE>
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 type 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.
A-9
<PAGE>
EXHIBIT B
TRANSFEREE REPRESENTATION LETTER
Toyota Auto Receivables 1999-A Owner Trust
U.S. Bank National Association, not in its individual
capacity but solely as Owner Trustee
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
U.S. Bank National Association,
as Certificate Registrar
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Attention: Corporate Trust Services -- Toyota Auto Receivables 1999-A Owner
Trust
Re: TRANSFER OF TOYOTA AUTO RECEIVABLES 1999-A OWNER TRUST
CERTIFICATE
Ladies and Gentlemen:
This letter is delivered pursuant to section 3.03 of the
Amended and Restated Trust Agreement dated as of July 1, 1999 (the "Trust
Agreement") between Toyota Motor Credit Receivables Corporation, as Depositor,
U.S. Bank National Association, as Owner Trustee (the "Owner Trustee") and First
Union Trust Company, National Association, as Delaware Co-trustee, in connection
with the transfer by _______________________________________ (the "Seller") to
the undersigned (the "Purchaser") of $__________________________ balance of
Certificates (the "Certificates"). Capitalized terms used and not otherwise
defined herein have the meanings ascribed thereto in the Trust Agreement.
In connection with such transfer, the undersigned hereby
represents and warrants to you and the addressees hereof as follows:
/ / I am not a Non-U.S. Person as defined in the Trust
Agreement; and
/ / I am not (i) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law") which
is, to a material extent, similar to the foregoing provisions of ERISA or the
Code (each a "Plan") or (ii) a person acting on behalf of or using the assets of
any such Plan (including an entity whose underlying assets include Plan assets
by reason of investment in the entity by such Plan and the application of
Department of Labor Regulation Section. 2510.3-101), other than an insurance
company using the assets of its general account under circumstances whereby the
purchase and holding of such Class of Certificates by such insurance company
would be exempt
B-1
<PAGE>
from the prohibited transaction provisions of ERISA and the Code under
Prohibited Transaction Class Exemption 95-60; or
/ / I am delivering herewith an Opinion of Counsel in form
and substance satisfactory to the Certificate Registrar and the Depositor to the
effect that the acquisition and holding of such Certificate by such purchaser or
transferee will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the fiduciary responsibility provisions of ERISA,
the prohibited transaction provisions of the Code or the provisions of any
Similar Law, will not constitute or result in a "prohibited transaction" within
the meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Owner Trustee, the Certificate Registrar, the Servicer, the
Administrator, the Owner or the Depositor to any obligation or liability
(including obligations or liabilities under ERISA, Section 4975 of the Code or
any such Similar Law).
[Signature appears on next page]
B-2
<PAGE>
IN WITNESS WHEREOF, the Purchaser hereby executes this
Transferee Representation Letter on the ___ day of _______________, _____.
Very truly yours,
-----------------------------,
The Purchaser
By:
---------------------------
Name:
Title:
B-3
<PAGE>
EXHIBIT C
TRANSFEROR REPRESENTATION LETTER
Toyota Auto Receivables 1999-A Owner Trust
U.S. Bank National Association, not in its individual
capacity but solely as Owner Trustee
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
U.S. Bank National Association,
as Certificate Registrar
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Attention: Corporate Trust Services -- Toyota Auto Receivables 1999-A Owner
Trust
Re: TRANSFER OF TOYOTA AUTO RECEIVABLES 1999-A OWNER TRUST
CERTIFICATE
Ladies and Gentlemen:
This letter is delivered pursuant to section 3.03 of the
Amended and Restated Trust Agreement dated as of July 1, 1999 (the "Trust
Agreement") between Toyota Motor Credit Receivables Corporation, as Depositor,
U.S. Bank National Association, as Owner Trustee (the "Owner Trustee") and First
Union Trust Company, National Association, as Delaware Co-Trustee, in connection
with the transfer by _______________________________________ (the "Purchaser")
to the undersigned (the "Seller") of $__________________________ balance of
Certificates (the "Certificates"). Capitalized terms used and not otherwise
defined herein have the meanings ascribed thereto in the Trust Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free
from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited
any offer to buy or accept a transfer, pledge or other disposition of
any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, which (in the case of any of the
acts described in clauses (a) through (e) hereof) would constitute a
distribution of any Transferred Certificate under the Securities Act of
C-1
<PAGE>
1933, as amended (the "Securities Act"), or would render the
disposition of any Transferred Certificate a violation of Section 5 of
the Securities Act or any state securities laws, or would require
registration or qualification of any Transferred Certificate pursuant
to the Securities Act or any state securities laws.
Very truly yours,
----------------------------------------
(Transferor)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
<PAGE>
Exhibit 4.5
ADMINISTRATION AGREEMENT
among
TOYOTA AUTO RECEIVABLES 1999-A OWNER TRUST,
as Issuer
TOYOTA MOTOR CREDIT CORPORATION,
as Administrator
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
and
U.S. BANK NATIONAL ASSOCIATION,
as Owner Trustee
Dated as of July 1, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
1. Duties of the Administrator................................................2
2. Records....................................................................9
3. Compensation...............................................................9
4. Additional Information to be Furnished to the Issuer.......................9
5. Independence of the Administrator..........................................9
6. No Joint Venture...........................................................9
7. Other Activities of Administrator..........................................9
8. Term of Agreement; Resignation and Removal of Administrator...............10
9. Action upon Termination, Resignation or Removal...........................11
10. Notices...................................................................11
11. Amendments................................................................12
12. Successor and Assigns.....................................................12
13. Governing Law.............................................................12
14. Headings..................................................................12
15. Counterparts..............................................................13
16. Severability of Provisions................................................13
17. Not Applicable to TMCC in Other Capacities................................13
18. Limitation of Liability of Owner Trustee and Indenture Trustee............13
19. Limitation on Liability of Administrator..................................13
</TABLE>
i
<PAGE>
ADMINISTRATION AGREEMENT dated as of July 1, 1999, among TOYOTA AUTO
RECEIVABLES 1999-A OWNER TRUST, a Delaware business trust (the "Issuer"), TOYOTA
MOTOR CREDIT CORPORATION, a California corporation, as administrator (the
"Administration"), U.S. BANK NATIONAL ASSOCIATION, a national baking
association, not in its individual capacity but solely as Indenture Trustee (the
"Indenture Trustee") and U.S. BANK NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity but solely as Owner Trustee (the
"Owner Trustee").
W I T N E S S E T H:
WHEREAS beneficial ownership interests in the Issuer represented by the
Toyota Auto Receivables 1999-A Owner Trust Asset Backed Certificates (the
"Certificates") have been issued in connection with the formation of the Issuer
pursuant to the Amended and Restated Trust Agreement dated as of July 1, 1999
(the "Trust Agreement"), between Toyota Motor Credit Receivables Corporation
("TMCRC"), a California corporation, as depositor, U.S. Bank National
Association, as owner trustee (the "Owner Trustee") and First Union Trust
Company, National Association, as Delaware co-trustee (the "Delaware
Co-trustee"), to the owners thereof (the "Owners");
WHEREAS the Issuer is issuing the Toyota Auto Receivables 1999-A Owner
Trust 5.365% Asset Backed Notes Class A-1, the Toyota Auto Receivables 1999-A
Owner Trust 5.800% Asset Backed Notes Class A-2, the Toyota Auto Receivables
1999-A Owner Trust 6.150% Asset Backed Notes Class A-3, the Toyota Auto
Receivables 1999-A Owner Trust 6.300% Asset Backed Notes Class B and the Toyota
Auto Receivables 1999-A Owner Trust 6.700% Asset Backed Notes Class C
(collectively, the "Notes") pursuant to the Indenture dated as of July 1, 1999
(as amended and supplemented from time to time, the "Indenture"), between the
Issuer and the Indenture Trustee (capitalized terms used herein and not defined
herein shall have the meanings ascribed thereto in the Indenture, the Trust
Agreement or the Sale and Servicing Agreement dated as of July 1, 1999, among
the Issuer, Toyota Motor Credit Corporation ("TMCC"), as servicer, and TMCRC, as
seller (the "Sale and Servicing Agreement"), as the case may be);
WHEREAS the Issuer has entered into certain agreements in connection
with the issuance of the Certificates and the Notes, including the Receivables
Purchase Agreement dated as of July 1, 1999 (the Receivables Purchase
Agreement"), among TMCC, as seller, and TMCRC, as purchaser, the Trust
Agreement, the Indenture, the Administration Agreement and the Sale and
Servicing Agreement (collectively, the "Basic Documents");
WHEREAS, pursuant to the Basic Documents, the Issuer, the Owner Trustee
and the Indenture Trustee are required to perform certain duties in connection
with the Certificates, the Notes and the Collateral;
WHEREAS the Issuer, the Owner Trustee and the Indenture Trustee desire
to appoint TMCC as administrator to perform certain of the duties of the Issuer,
the Owner Trustee and the Indenture Trustee under the Basic Documents and to
provide such additional services consistent
<PAGE>
with the terms of this Agreement and the Basic Documents as the Issuer and the
Owner Trustee may from time to time request; and
WHEREAS the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. DUTIES OF THE ADMINISTRATOR.
(a) Duties with respect to the Note Depository Agreement and
the Indenture.
(i) The Administrator agrees to perform all its
duties as Administrator and the duties of the Issuer under the
Depository Agreement. In addition, the Administrator shall
consult with the Owner Trustee regarding the duties of the
Issuer under the Indenture and the Depository Agreement. The
Administrator shall monitor the performance of the Issuer and
shall advise the Owner Trustee when action by the Issuer or
the Owner Trustee is necessary to comply with the Issuer's
duties under the Indenture and the Depository Agreement. The
Administrator shall prepare for execution by the Issuer or
shall cause the preparation by other appropriate persons of
all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Indenture
and the Depository Agreement. In furtherance of the foregoing,
the Administrator shall take all appropriate action that is
the duty of the Issuer to take pursuant to the Indenture
including, without limitation, such of the foregoing as are
required with respect to the following matters under the
Indenture (references are to sections of the Indenture):
(A) causing the Note Register to be kept and
giving the Indenture Trustee notice of any
appointment of a new Note Registrar and the location,
or change in location, of the Note Register (Section
2.04);
(B) preparing the notification to
Noteholders of the final principal payment on their
Notes (Section 2.07(b));
(C) fixing or causing to be fixed any
specified record date and the notification of the
Indenture Trustee and Noteholders with respect to
special payment dates, if any (Section 5.04(d));
2
<PAGE>
(D) preparing or obtaining the documents and
instruments required for the proper authentication of
Notes and delivering the same to the Indenture
Trustee (section 2.02);
(E) preparing, obtaining and/or filing of
all instruments, opinions and certificates and other
documents required for the release of collateral
(Section 2.09) ;
(F) maintaining an office in the Borough of
Manhattan, City of New York, for the registration of
transfer or exchange of Notes (Section 3.02);
(G) causing newly appointed Paying Agents,
if any, to deliver to the Indenture Trustee the
instrument specified in the Indenture regarding funds
held in trust (Section 3.03);
(H) directing the Indenture Trustee to
deposit moneys with Paying Agents, if any, other than
the Indenture Trustee (Section 3.03);
(I) obtaining and preserving the Issuer's
qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to
protect the validity and enforceability of the
Indenture, the Notes, the Collateral and each other
instrument and agreement included in the Trust Estate
(Section 3.04);
(J) preparing all supplements, amendments,
financing statements, continuation statements,
instruments of further assurance and other
instruments, in accordance with Section 3.05 of the
Indenture, necessary to protect the Trust Estate
(Section 3.05);
(K) delivering the required Opinions of
Counsel on the Closing Date and annually, in
accordance with Section 3.06 of the Indenture, and
delivering the annual Officers' Certificates and
certain other statements as to compliance with the
Indenture, in accordance with Section 3.09 of the
Indenture (Sections 3.06 and 3.09);
(L) identifying to the Indenture Trustee in
an Officers' Certificate any Person with whom the
Issuer has contracted to perform its duties under the
Indenture (Section 3.07(b));
(M) notifying the Indenture Trustee and the
Rating Agencies of any Servicer Default pursuant to
the Sale and Servicing Agreement and, if such
Servicer Default arises from the failure of the
Servicer to perform any of its duties under the Sale
and Servicing
3
<PAGE>
Agreement, taking all reasonable steps available to
remedy such failure (Section 3.07(d));
(N) preparing and obtaining documents and
instruments required for the release of the Issuer
from its obligations under the Indenture (Section
3.10(b));
(O) delivering notice to the Indenture
Trustee of each Event of Default and each other
default by the Servicer or the Seller under the Sale
and Servicing Agreement (Section 3.19);
(P) monitoring the Issuer's obligations as
to the satisfaction and discharge of the Indenture
and the preparation of an Officer's Certificate and
obtaining the Opinion of Counsel and the Independent
Certificate (as defined in the Indenture) related
thereto (Section 4.01);
(Q) complying with any written directive of
the Indenture Trustee with respect to any sale of any
portion of the Trust Estate in connection with any
Event of Default (Section 5.04);
(R) preparing and delivering of notice to
Noteholders of any removal of the Indenture Trustee
and the appointment of a successor Indenture Trustee
(Section 6.08);
(S) preparing all written instruments
required to confirm the authority of any co-trustee
or separate trustee and any written instruments
necessary in connection with the resignation or
removal of any co-trustee or separate trustee
(Sections 6.08 and 6.10);
(T) furnishing the Indenture Trustee with
the names and addresses of Noteholders during any
period when the Indenture Trustee is not the Note
Registrar (Section 7.01);
(U) preparing and, after execution by the
Issuer and the Indenture Trustee, filing with the
Commission and any applicable state agencies of
documents required to be filed on a periodic basis
with the Commission and any applicable state agencies
(including any summaries thereof required by rules
and regulations prescribed thereby), and transmitting
of such summaries to the Noteholders (Section 7.03);
(V) preparing and, after execution by the
Indenture Trustee, delivering to Noteholders and
filing with the Commission, any reports required by
TIA Sections 313(a), (b) and (c); provided, that the
Administrator will not be required to prepare reports
required by TIA Sections 313(a)(1) and (a)(2) unless
specifically directed
4
<PAGE>
in writing to do so by the Indenture Trustee and the
Indenture Trustee provides the Administrator with all
information necessary to prepare such reports
(Section 7.04);
(W) preparing the related Issuer Orders and
all other actions necessary with respect to
investment and reinvestment of funds in the Trust
Accounts (Section 8.04);
(X) preparing any Issuer Request and
Officers' Certificates and obtaining any Opinions of
Counsel and Independent Certificates necessary for
the release of the Trust Estate (Sections 8.05 and
8.06);
(Y) preparing Issuer Orders and obtaining
Opinions of Counsel with respect to the execution of
any supplemental indentures, and mailing notices to
the Noteholders with respect thereto (Sections 9.01,
9.02 and 9.03);
(Z) executing and delivering new Notes
conforming to the provisions of any supplemental
indenture, as appropriate (Section 9.06);
(AA) notifying Noteholders of any redemption
of the Notes or causing the Indenture Trustee to
provide such notice (Section 10.02);
(BB) preparing all Officers' Certificates,
Opinions of Counsel and Independent Certificates with
respect to any requests by the Issuer of the
Indenture Trustee to take any action under the
Indenture (Section 11.01(a));
(CC) preparing and delivering Officers'
Certificates and obtaining Independent Certificates,
if necessary, for the release of property from the
lien of the Indenture (Section 11.01(b));
(DD) notifying the Rating Agencies, upon any
failure of the Indenture Trustee to give such
notification, of the information required pursuant to
Section 11.04 of the Indenture (Section 11.04);
(EE) preparing and delivering to Noteholders
and the Indenture Trustee any agreements with respect
to alternate payment and notice provisions (Section
11.06);
(FF) recording the Indenture, if applicable
(Section 11.14); and
5
<PAGE>
(ii) The Administrator also will:
(A) pay the Indenture Trustee from time to
time the reasonable compensation provided for in the
Indenture with respect to services rendered by the
Indenture Trustee under the Indenture (which
compensation shall not be limited by any provision of
law in regard to the compensation of a Trustee of an
express trust);
(B) reimburse the Indenture Trustee upon its
request for all reasonable expenses, disbursements
and advances incurred or made by the Indenture
Trustee in accordance with any provision of the
Indenture (including the reasonable compensation,
expenses and disbursements of its agents and counsel)
to the extent the Indenture Trustee is entitled to
such reimbursement by the Issuer under the Indenture;
(C) indemnify the Indenture Trustee for, and
hold it harmless against, any losses, liability or
expense incurred without negligence or bad faith on
the part of the Indenture Trustee, arising out of or
in connection with the acceptance or administration
of the trusts and duties contemplated by the
Indenture, including the reasonable costs and
expenses of defending themselves against any claim or
liability in connection therewith to the extent the
Indenture Trustee is entitled to such indemnification
from the Issuer under the Indenture;
(D) indemnify the Owner Trustee for, and
hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on
the part of the Owner Trustee, arising out of or in
connection with the acceptance or administration of
the transactions contemplated by the Trust Agreement,
the Indenture, the Depository Agreement or this
Administration Agreement, including the reasonable
costs and expenses of defending themselves against
any claim or liability in connection with the
exercise or performance of any of their powers or
duties under the Trust Agreement in accordance with
the provisions of Section 8.02 of the Sale and
Servicing Agreement; and
(E) indemnify the Delaware Co-trustee for,
and hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on
the part of the Delaware Co-trustee, arising out of
or in connection with the acceptance or
administration of the transactions contemplated by
the Trust Agreement, including the reasonable costs
and expenses of defending themselves against any
claim or liability in connection with the exercise or
performance of any of their powers or duties under
the Trust Agreement in accordance with the provisions
of Section 11.05 of the Sale and Servicing Agreement.
6
<PAGE>
(b) Additional Duties.
(i) In addition to the duties of the Administrator
set forth above, the Administrator shall perform such
calculations, and shall prepare for execution by the Issuer or
the Owner Trustee or shall cause the preparation by other
appropriate persons of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty
of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to the Basic Documents, and at the request of the
Owner Trustee shall take all appropriate action that it is the
duty of the Issuer or the Owner Trustee to take pursuant to
the Basic Documents. Subject to Section 5 of this Agreement,
and in accordance with the reasonable written directions of
the Owner Trustee, the Administrator shall administer, perform
or supervise the performance of such other activities in
connection with the Collateral (including the Basic Documents)
as are not covered by any of the foregoing provisions and as
are expressly requested by the Owner Trustee and are
reasonably within the capability of the Administrator. Such
responsibilities shall include, obtaining and maintaining any
licenses required to be obtained or maintained by the Trust
under the Pennsylvania Motor Vehicle Sales Finance Act. In
addition, the Administrator shall promptly notify the
Indenture Trustee and the Owner Trustee in writing of any
amendment to the Pennsylvania Motor Vehicle Sales Finance Act
that would affect the duties or obligations of the Indenture
Trustee, or the Owner Trustee under any Basic Document and
shall assist the Indenture Trustee or the Owner Trustee in
obtaining and maintaining any licenses required to be obtained
or maintained by the Indenture Trustee or the Owner Trustee
thereunder. In connection therewith, the Administrator shall
pay all fees and expenses under such Act.
(ii) Notwithstanding anything in this Agreement or
the Basic Documents to the contrary, the Administrator shall
be responsible for promptly notifying the Owner Trustee in the
event that any withholding tax is imposed on the Issuer's
payments (or allocations of income) to an Owner as
contemplated in Section 5.02(c) of the Trust Agreement. Any
such notice shall specify the amount of any withholding tax
required to be withheld by the Owner Trustee pursuant to such
provision.
(iii) Notwithstanding anything in this Agreement or
the Basic Documents to the contrary, the Administrator shall
be responsible for performance of the duties of the Owner
Trustee set forth in Sections 5.04(a), (b), (c) and (d) of the
Trust Agreement with respect to, among other things,
accounting and reports to Owners; provided, however, that the
Owner Trustee shall remain exclusively responsible for the
distribution of the Schedule K-1s necessary to enable each
Owner to prepare its federal and state income tax returns.
(iv) The Administrator shall satisfy its obligations
with respect to clauses (ii) and (iii) above by retaining, at
the expense of the Issuer
7
<PAGE>
payable by the Administrator, a firm of independent public
accountants (the "Accountants") acceptable to the Owner
Trustee which shall perform the obligations of the
Administrator thereunder. In connection with paragraph (ii)
above, the Accountants will provide prior to August 16, 1999,
a letter in form and substance satisfactory to the Owner
Trustee as to whether any tax withholding is then required
and, if required, the procedures to be followed with respect
thereto to comply with the requirements of the Code. The
Accountants shall be required to update the letter in each
instance that any additional tax withholding is subsequently
required or any previously required tax withholding shall no
longer be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.02 of the Trust
Agreement required to be performed in connection with the
resignation or removal of the Owner Trustee, and any other
duties expressly required to be performed by the Administrator
under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of
its other obligations under this Agreement, the Administrator
may enter into transactions with or otherwise deal with any of
its affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a
reasonable time before the taking of such action the
Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld
consent or provided an alternative direction. For the purpose
of the preceding sentence, "non-ministerial matters" shall
include, without limitation:
(A) the amendment of the Indenture or
execution of any supplement to the Indenture;
(B) the initiation of any claim or lawsuit
by the Issuer and the compromise of any action, claim
or lawsuit brought by or against the Issuer (other
than in connection with the collection of the
Receivables);
(C) the amendment, change or modification of
any of the Basic Documents;
8
<PAGE>
(D) the appointment of successor Note
Registrars, successor Paying Agents or successor
Indenture Trustees pursuant to the Indenture or the
appointment of successor Administrators or Successor
Servicers, or the consent to the assignment by the
Note Registrar, Paying Agent or Indenture Trustee of
its obligations, under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and
shall not, (x) make any payments to the Noteholders under the
Basic Documents, (y) sell the Trust Estate pursuant to Section
5.04 of the Indenture or (z) take any other action that the
Issuer directs the Administrator not to take on its behalf.
2. RECORDS. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the Owner
Trustee and the Indenture Trustee at any time during normal business hours upon
reasonable advance written notice.
3. COMPENSATION. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to a fee of
$200.00 per month which shall be solely an obligation of the Servicer.
4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall, reasonably request.
5. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer, the Owner Trustee or the Indenture
Trustee with respect to the manner in which it accomplishes the performance of
its obligations hereunder. Unless expressly authorized by the Issuer hereunder
or otherwise, the Administrator shall have no authority to act for or represent
the Issuer, the Owner Trustee or the Indenture Trustee, and shall not otherwise
be or be deemed an agent of the Issuer, the Owner Trustee or the Indenture
Trustee.
6. NO JOINT VENTURE. Nothing contained in this Agreement shall (i)
constitute the Administrator and any of the Issuer, the Owner Trustee or the
Indenture Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) be construed
to impose any liability as such on any of them or (iii) be deemed to confer on
any of them any express, implied or apparent authority to incur any obligation
or liability on behalf of the others.
7. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its or
their sole discretion,
9
<PAGE>
from acting as an administrator for any other person or entity, or in a similar
capacity therefor, even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.
(a) This Agreement shall continue in force until the
dissolution of the Issuer, upon which event this Agreement shall
automatically terminate.
(b) Subject to Sections 8(e) and 8(f), the Administrator may
resign its duties hereunder by providing the Issuer with at least 30
days, prior written notice.
(c) Subject to Sections 8(e) and 8(f), the Issuer may remove
the Administrator without cause by providing the Administrator with at
least 30 days prior written notice.
(d) Subject to Sections 8(e) and 8(f), at the sole option of
the Issuer, the Administrator may be removed immediately upon written
notice of termination from the Issuer to the Administrator if any of
the following events shall occur:
(i) the Administrator shall fail to perform in any
material respect any of its duties under this Agreement and,
after notice of such default, shall not cure such default
within 10 days (or, if such default cannot be cured in such
time, shall not give within such 10 days such assurance of
timely and complete cure as shall be reasonably satisfactory
to the Issuer);
(ii) 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 Administrator (or,
so long as the Administrator 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
(iii) the consent by the Administrator (or, so long
as the Administrator 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 Administrator (or, so long
as the Administrator is TMCC, the Seller) of or relating to
substantially all of their property, or the Administrator (or,
so long as the Administrator 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.
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<PAGE>
The Administrator agrees that if any of the events specified
in clauses (ii) or (iii) of this Section shall occur, it shall give
written notice thereof to the Issuer, the Owner Trustee and the
Indenture Trustee within seven days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator
shall have been appointed by the Issuer and (ii) such successor
Administrator shall have agreed in writing to be bound by the terms of
this Agreement in the same manner as the Administrator is bound
hereunder.
(f) The appointment of any successor Administrator shall be
effective only after each Rating Agency has provided to the Owner
Trustee and the Indenture Trustee written notice that the proposed
appointment will not result in the reduction or withdrawal of any
rating then assigned by such Rating Agency to any Class of Notes or the
Certificates.
(g) Subject to Section 8(e) and 8(f), the Administrator
acknowledges that upon the appointment of a Successor Servicer pursuant
to the Sale and Servicing Agreement, the Administrator shall
immediately resign and such Successor Servicer shall automatically
succeed to the rights, duties and obligations of the Administrator
under this Agreement.
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a) or the
resignation or removal of the Administrator pursuant to Section 8(b), (c) or
(d), respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8(a) deliver to or to the order of the Issuer all property
and documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the Administrator
pursuant to Section 8(b), (c) or (d), respectively, the Administrator shall
cooperate with the Issuer and take all reasonable steps requested to assist the
Issuer in making an orderly transfer of the duties of the Administrator.
10. NOTICES. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
Toyota Auto Receivables 1999-A Owner Trust
In care of: U.S. Bank National Association
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Attention: Toyota Auto Receivables 1999-A Owner
Trust
(b) if to the Administrator, to:
11
<PAGE>
Toyota Motor Credit Corporation
19001 South Western Avenue
Torrance, California 90509
Attention: Treasury Department, Vice President,
Treasury
(c) if to the Indenture Trustee, to:
U.S. Bank National Association
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Attention: Toyota Auto Receivables 1999-A Owner
Trust
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand delivered
to the address of such party as provided above.
11. AMENDMENTS. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the Administrator,
the Owner Trustee and the Indenture Trustee, without the consent of any
Noteholders or the Certificateholders, for the purpose of adding any provisions
to or modifying or changing in any manner or eliminating any of the provisions
of this Agreement; provided that such amendment does not and will not, in the
Opinion of Counsel satisfactory to the Indenture Trustee, materially and
adversely affect the interest of any Noteholder or Certificateholder.
12. SUCCESSOR AND ASSIGNS. This Agreement may not be assigned by the
Administrator unless such assignment is consented to in writing by the Issuer,
the Owner Trustee and the Indenture Trustee, and the conditions precedent to
appointment of a successor Administrator set forth in Section 8 are satisfied.
An assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned
by the Administrator without the consent of the Issuer, the Owner Trustee and
the Indenture Trustee to a corporation or other organization that is a successor
(by merger, consolidation or purchase of assets) to the Administrator, provided
that such successor organization executes and delivers to the Issuer, the Owner
Trustee and the Indenture Trustee an agreement in which such corporation or
other organization agrees to be bound hereunder by the terms of said assignment
in the same manner as the Administrator is bound hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
14. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
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15. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which when so executed shall together constitute but one and the same
agreement.
16. SEVERABILITY OF PROVISIONS. If any one or more of the agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid or unenforceable in any jurisdiction, then such 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 the other rights of
the parties hereto.
17. NOT APPLICABLE TO TMCC IN OTHER CAPACITIES. Nothing in this
Agreement shall affect any obligation, right or benefit TMCC may have in any
other capacity or under any Basic Document.
18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE.
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by U.S. Bank National Association, not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and as
Indenture Trustee under the Indenture and in no event shall U.S. Bank National
Association in its individual capacity or any Owner have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer.
19. LIMITATION ON LIABILITY OF ADMINISTRATOR. Neither the Administrator
nor any of the directors, officers, employees or agents of the Administrator
shall be under any liability to the Seller, the Issuer, the Noteholders or the
Certificateholders, except as provided under this Administration Agreement, for
any action taken or for refraining from the taking of any action pursuant to
this Administration Agreement or for errors in judgment; provided, however, that
this provision shall not protect the Administrator 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 Administration Agreement. The
Administrator and any director, officer, employee or agent of the Administrator
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
Administration Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
TOYOTA AUTO RECEIVABLES 1999-A OWNER TRUST
By: U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as Owner
Trustee
By: /s/ Edward F. Kachinski
----------------------------------
Name: Edward F. Kachinski
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as Indenture Trustee
By: /s/ Edward F. Kachinski
----------------------------------
Name: Edward F. Kachinski
Title: Vice President
TOYOTA MOTOR CREDIT CORPORATION,
as Administrator
By: /s/ George Borst
----------------------------------
Name: George Borst
Title: Senior Vice President and General Manager
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as Owner Trustee
By: /s/ Edward F. Kachinski
----------------------------------
Name: Edward F. Kachinski
Title: Vice President
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