INDENTURE
--------------------------------------------------------------
TOYOTA AUTO RECEIVABLES 2002-C OWNER TRUST,
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee and
Securities Intermediary
--------------------------------------------------------------
Dated as of October 1, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions...........................................................................2
Section 1.02 Usage of Terms.......................................................................10
Section 1.03 Incorporation by Reference of Trust Indenture Act....................................10
ARTICLE II THE NOTES
Section 2.01 Form.................................................................................11
Section 2.02 Execution, Authentication and Delivery...............................................11
Section 2.03 Temporary Notes......................................................................11
Section 2.04 Registration; Registration of Transfer and Exchange..................................12
Section 2.05 Mutilated, Destroyed, Lost or Stolen Notes...........................................13
Section 2.06 Persons Deemed Owners................................................................14
Section 2.07 Payments of Principal and Interest...................................................14
Section 2.08 Cancellation.........................................................................15
Section 2.09 Release of Collateral................................................................15
Section 2.10 Book-Entry Notes.....................................................................16
Section 2.11 Notices to Clearing Agency...........................................................16
Section 2.12 Definitive Notes.....................................................................17
Section 2.13 Tax Treatment........................................................................17
ARTICLE III COVENANTS
Section 3.01 Payments to Noteholders, Certificateholder, Holder of the Revolving Liquidity Note,
Swap Counterparty, Servicer and Seller...............................................17
Section 3.02 Maintenance of Office or Agency......................................................18
Section 3.03 Money for Payments To Be Held in Trust...............................................18
Section 3.04 Existence............................................................................20
Section 3.05 Protection of Trust Estate...........................................................20
Section 3.06 Opinions as to Trust Estate..........................................................21
Section 3.07 Performance of Obligations; Servicing of Receivables.................................21
Section 3.08 Negative Covenants...................................................................23
Section 3.09 Annual Statement as to Compliance....................................................24
i
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 3.10 Issuer May Consolidate, etc., Only on Certain Terms..................................24
Section 3.11 Successor or Transferee..............................................................26
Section 3.12 No Other Business....................................................................26
Section 3.13 No Borrowing.........................................................................27
Section 3.14 Servicer's Notice Obligations........................................................27
Section 3.15 Guarantees, Loans, Advances and Other Liabilities....................................27
Section 3.16 Capital Expenditures.................................................................27
Section 3.17 Removal of Administrator.............................................................27
Section 3.18 Restricted Payments..................................................................27
Section 3.19 Notice of Events of Default..........................................................27
Section 3.20 Further Instruments and Actions......................................................28
ARTICLE IV SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture..............................................28
Section 4.02 Application of Trust Money...........................................................29
Section 4.03 Repayment of Moneys Held by Paying Agent.............................................29
ARTICLE V REMEDIES
Section 5.01 Events of Default....................................................................29
Section 5.02 Acceleration of Maturity; Rescission and Annulment...................................31
Section 5.03 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee....................................................................32
Section 5.04 Remedies; Priorities; Insolvency of Seller...........................................34
Section 5.05 Optional Preservation of the Receivables.............................................37
Section 5.06 Limitation of Suits..................................................................37
Section 5.07 Unconditional Rights of Noteholders To Receive
Principal and Interest...............................................................37
Section 5.08 Restoration of Rights and Remedies...................................................38
Section 5.09 Rights and Remedies Cumulative.......................................................38
Section 5.10 Delay or Omission Not a Waiver.......................................................38
Section 5.11 Control by Noteholders...............................................................38
ii
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 5.12 Waiver of Past Defaults..............................................................39
Section 5.13 Undertaking for Costs................................................................39
Section 5.14 Waiver of Stay or Extension Laws.....................................................39
Section 5.15 Action on Notes......................................................................40
Section 5.16 Performance and Enforcement of Certain Obligations...................................40
ARTICLE VI THE INDENTURE TRUSTEE
Section 6.01 Duties of Indenture Trustee..........................................................41
Section 6.02 Rights of Indenture Trustee..........................................................42
Section 6.03 Individual Rights of Indenture Trustee...............................................43
Section 6.04 Indenture Trustee's Disclaimer.......................................................43
Section 6.05 Notice of Defaults...................................................................44
Section 6.06 Reports by Indenture Trustee to Holders..............................................44
Section 6.07 Compensation and Indemnity...........................................................45
Section 6.08 Replacement of Indenture Trustee.....................................................45
Section 6.09 Successor Indenture Trustee by Merger................................................46
Section 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee....................................................................47
Section 6.11 Eligibility; Disqualification........................................................48
Section 6.12 Preferential Collection of Claims Against Issuer.....................................48
Section 6.13 Revolving Liquidity Note Provisions..................................................48
Section 6.14 Interest Rate Swap Provisions........................................................49
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS
Section 7.01 Note Registrar To Furnish Names and Addresses of Noteholders.........................50
Section 7.02 Preservation of Information; Communications to Noteholders...........................51
Section 7.03 Reports by Issuer....................................................................51
Section 7.04 Reports by Indenture Trustee.........................................................51
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01 Collection of Money..................................................................52
Section 8.02 Trust Accounts.......................................................................52
iii
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 8.03 [Reserved]...........................................................................52
Section 8.04 General Provisions Regarding Accounts................................................52
Section 8.05 Release of Trust Estate..............................................................54
Section 8.06 Opinion of Counsel...................................................................54
ARTICLE IX SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Noteholders...............................55
Section 9.02 Supplemental Indentures with Consent of Noteholders..................................56
Section 9.03 Limitations on Supplemental Indentures...............................................56
Section 9.04 Execution of Supplemental Indentures.................................................57
Section 9.05 Effect of Supplemental Indenture.....................................................57
Section 9.06 Conformity with Trust Indenture Act..................................................58
Section 9.07 Reference in Notes to Supplemental Indentures........................................58
ARTICLE X TERMINATION OF THE TRUST
Section 10.01 Termination of the Trusts Created by Indenture.......................................58
Section 10.02 Optional Purchase of All Receivables.................................................59
ARTICLE XI MISCELLANEOUS
Section 11.01 Compliance Certificates and Opinions, etc............................................59
Section 11.02 Form of Documents Delivered to Indenture Trustee.....................................61
Section 11.03 Acts of Noteholders..................................................................62
Section 11.04 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies......................62
Section 11.05 Notices to Noteholders; Waiver.......................................................63
Section 11.06 Alternate Payment and Notice Provisions..............................................63
Section 11.07 Conflict with Trust Indenture Act....................................................63
Section 11.08 Effect of Headings and Table of Contents.............................................64
Section 11.09 Successors and Assigns...............................................................64
Section 11.10 Severability.........................................................................64
Section 11.11 Benefits of Indenture................................................................64
Section 11.12 Governing Law........................................................................64
Section 11.13 Counterparts.........................................................................64
iv
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 11.14 Recording of Indenture...............................................................64
Section 11.15 Trust Obligation.....................................................................65
Section 11.16 No Petition..........................................................................65
Section 11.17 Inspection...........................................................................65
EXHIBIT A Forms of Class A-1 Note, Class A-2 Note, Class A-3 Note and
Class A-4 Note....................................................................A-1-1
EXHIBIT B Form of Note Depository Agreement.................................................B-1-1
v
CROSS-REFERENCE TABLE
(not a part of this Indenture)
TIA Indenture
Section Section
------- -------
(ss.)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.
(ss.)311(a) ....................................................... 6.12
(b) ......................................................... 6.12
(c) ......................................................... N.A.
(ss.)312(a) ....................................................... 7.02
(b) ......................................................... 7.02
(c) ......................................................... 7.02
(ss.)313(a) ....................................................... 7.04
(b) (1)...................................................... N.A.
(b) (2)...................................................... 7.04
(c) ......................................................... 7.04
11.04
(d) ......................................................... 7.04
(ss.)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.
(ss.)315(a) ........................................................ 6.01
(b) .......................................................... 6.05
(c) .......................................................... 5.02
5.08
(d) ............................................................ 6.01(c)
(e) ......................................................... 5.13
TIA Indenture
Section Section
------- -------
(ss.)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
(ss.)317(a) (1) ................................................... 5.04
(a) (2) ..................................................... 5.03(c)
5.03(d)
(b) ..................................................... 4.03
(ss.)318(a) ................................................... 11.07
---------
N.A. means not applicable
INDENTURE dated as of October 1, 2002, between TOYOTA AUTO RECEIVABLES
2002-C OWNER TRUST, a Delaware statutory trust (the "Issuer"), and THE BANK OF
NEW YORK, a New York State banking institution, as trustee and not in its
individual capacity and as Securities Intermediary (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 1.80% Asset Backed
Notes, Class A-1 (the "Class A-1 Notes"), Floating Rate Asset Backed Notes,
Class A-2 (the "Class A-2 Notes"), 2.65% Asset Backed Notes, Class A-3 (the
"Class A-3 Notes") and Floating Rate Asset Backed Notes, Class A-4 (the "Class
A-4 Notes," and together with the Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes, the "Class A Notes" or 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 the
Certificate and the Swap Counterparty, all of the Issuer's right, title and
interest in and to, in each case whether now or hereafter existing or in which
Issuer now has or hereafter acquires an interest and wherever the same may be
located: (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 TAFR LLC under the
Receivables Purchase Agreement; (vii) all rights, title and interest of the
Issuer in and to the Interest Rate Swap Agreement and; (viii) all other assets
comprising the Owner Trust Estate; (ix) all proceeds of the foregoing and (x)
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, tangible 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
1
to the subordinate claims thereon of the Holder of the Certificate, all as
provided in this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the
Notes and for the benefit of the Certificateholder, 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
Certificateholder secured.
ARTICLE I
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01 Definitions. Except as otherwise specified herein or as 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, the Interest Rate Swap Agreement, the Revolving Liquidity
Note 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
October 1, 2002, among the Administrator, the Issuer, the Owner Trustee 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.
"Basic Documents" means the Receivables Purchase Agreement, the Trust
Agreement, the Certificate of Trust, the Sale and Servicing Agreement, this
Indenture, the Administration Agreement, the Securities Account Control
Agreement, the Note Depository Agreement, the Revolving Liquidity Note
Agreement, the Revolving Liquidity Note and the other documents and certificates
delivered in connection herewith and therewith.
"Book-Entry Notes" means a beneficial interest in the Class A-2 Notes,
Class A-3 Notes and Class A-4 Notes, ownership and transfers of which shall be
made through book entries by a Clearing Agency as described in Section 2.10.
2
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions or trust companies in New York, New York, Chicago,
Illinois, Wilmington, Delaware or San Francisco, California are authorized or
obligated by law, regulation or executive order to remain closed.
"Class A-1 Rate" means 1.80% 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 1.80% Asset Backed Notes, Class A-1,
substantially in the form attached hereto as Exhibit A.
"Class A-2 Rate" means, with respect to any Payment Date, LIBOR plus 0.02%
(computed on the basis of the actual number of days elapsed during the relevant
Interest Period and a 360 day year).
"Class A-2 Notes" means the Floating Rate Asset Backed Notes, Class A-2,
substantially in the form attached hereto as Exhibit A.
"Class A-3 Rate" means 2.65% per annum (computed on the basis of a 360 day
year consisting of twelve 30 day months).
"Class A-3 Notes" means the 2.65% Asset Backed Notes, Class A-3,
substantially in the form attached hereto as Exhibit A.
"Class A-4 Rate" means, with respect to any Payment Date, LIBOR plus 0.05%
(computed on the basis of the actual number of days elapsed during the relevant
Interest Period and a 360 day year).
"Class A-4 Notes" means the Floating Rate Asset Backed Notes, Class A-4,
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 October 31, 2002.
"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 the date of execution of this Agreement is located
at 000 Xxxxxxx Xxxxxx, 0 Xxxx, Xxx Xxxx, Xxx Xxxx
3
10286, Attn: Corporate Trust Services - Asset Backed Securities Department
Toyota Auto Receivables 2002-C Owner Trust, 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.
"Cutoff Date" means October 1, 2002.
"Default" means any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10.
"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 xxxxx x xxxx 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 or, as indicated by the context, the holder of
the Revolving Liquidity Note.
"Indenture Trustee" means The Bank of New York, a New York State banking
institution, 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,
4
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.
"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 60 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 any Payment Date and (i) the Class
A-1, Class A-2 and Class A-4 Notes, the period from (and including) a Payment
Date to (but excluding) the next Payment Date, except that the first interest
accrual period will be from (and including) the Closing Date to (but excluding)
November 15, 2002, and (ii) the Class A-3 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 accrual period will be
from (and including) the Closing Date to (but excluding) November 15, 2002.
"Interest Rate" means the Class A-1 Rate, the Class A-2 Rate, the Class A-3
Rate or the Class A-4 Rate, as indicated by the context.
"Interest Determination Date" means the second London Banking Day prior to
the Interest Reset Date for the related Interest Period.
"Interest Rate Swap Agreement" means 1992 ISDA Master Agreement dated as of
October 31, 2002 (the "1992 ISDA Master Agreement"), including all schedules and
confirmations thereto, between the Issuer and the Swap Counterparty, as the same
may be amended, supplemented, renewed, extended or replaced from time to time.
5
"Issuer" means Toyota Auto Receivables 2002-C 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, if any.
"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.
"LIBOR" means the rate for deposits in U.S. dollars for a one-month period
which appears on the Telerate Page 3750 as of 11:00 a.m., London time, on the
Interest Determination Date; provided that, the following procedures will be
followed if LIBOR cannot be determined as described above:
(a) With respect to an Interest Determination Date on which no rate appears
on Telerate Page 3750, LIBOR for the applicable Interest Determination Date will
be the rate calculated by the Calculation Agent (as defined in the Interest Rate
Swap Agreement) as the arithmetic mean of at least two quotations obtained by
the Calculation Agent after requesting the principal London offices of each of
four major reference banks in the London interbank market, which may include the
Calculation Agent and its affiliates, as selected by the Calculation Agent, to
provide the Calculation Agent with its offered quotation for deposits in U.S.
dollars for a one-month period, commencing on the second London Banking Day
immediately following the applicable Interest Determination Date, to prime banks
in the London interbank market at approximately 11:00 a.m., London time, on such
Interest Determination Date and in a principal amount that is representative for
a single transaction in U.S. dollars in that market at that time. If at least
two such quotations are provided, LIBOR determined on the applicable Interest
Determination Date will be the arithmetic mean of the quotations.
(b) If fewer than two quotations referred to in clause (a) above are
provided, LIBOR determined on the applicable Interest Determination Date will be
the rate calculated by the Calculation Agent as the arithmetic mean of the rates
quoted at approximately 11:00 a.m. in New York on the applicable Interest
Determination Date by three major banks, which may include the Calculation Agent
and its affiliates, in New York, selected by the Calculation Agent for loans in
U.S. dollars to leading European banks, having a maturity of one-month and in a
principal amount that is representative for a single transaction in U.S. dollars
in that market at that time.
(c) If the banks so selected by the Calculation Agent are not quoting as
mentioned in clause (b) above, LIBOR for the applicable Interest Determination
Date will be LIBOR in effect on the applicable Interest Determination Date.
"Note" means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note or a
Class A-4 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
6
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).
"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.
7
"Owner Trustee" means U.S. Bank Trust 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.
"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, rights of the Owner Trustee and the
Issuer pursuant to the Revolving Liquidity Note Agreement and Revolving
Liquidity Note, 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.
"Revolving Liquidity Note" means the Revolving Liquidity Note issued
pursuant to the Revolving Liquidity Note Agreement.
"Revolving Liquidity Note Agreement" means the Revolving Liquidity Note
Agreement dated as of October 31, 2002, between the Issuer and TMCC as the
initial Holder of the Revolving Liquidity Note.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement dated
as of October 1, 2002, among the Issuer, Toyota Auto Finance Receivables LLC, as
Seller, and Toyota Motor Credit Corporation, as Servicer, and as to which the
Indenture Trustee is a third party beneficiary of certain provisions.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Account Control Agreement" means the Securities Account Control
Agreement dated October 1, 2002, among the Seller, The Bank of New York, as
Securities Intermediary thereunder, and The Bank of New York, as Indenture
Trustee.
8
"Seller" shall mean Toyota Auto Finance Receivables LLC, 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).
"Swap Counterparty" shall mean Toyota Motor Credit Corporation, as swap
counterparty under the Interest Rate Swap Agreement, or any successor or
replacement swap counterparty from time to time under the Interest Rate Swap
Agreement.
"Swap Event of Default" means (i) the failure of the Issuer or the Swap
Counterparty to pay any amount when due under the Interest Rate Swap Agreement
after giving effect to any applicable grace period; (ii) the occurrence of
certain events of insolvency or bankruptcy of the Issuer or the Swap
Counterparty as specified in the Interest Rate Swap Agreement and (iii) certain
other standard events of default under the 1992 ISDA Master Agreement as
specified in the Interest Rate Swap Agreement including "Breach of Agreement"
(not applicable to the Issuer), "Misrepresentation" (not applicable to the
Issuer) and "Merger without Assumption," as described in Sections 5(a)(ii),
5(a)(iv) and 5(a)(viii) of the 1992 ISDA Master Agreement.
"Swap Payments Incoming" means on any Payment Date the net amount, if any,
then payable by a Swap Counterparty to the Issuer, excluding any Swap
Termination Payments.
"Swap Payments Outgoing" means on any payment Date the net amount, if any,
then payable by the Issuer to the Swap Counterparty, excluding any Swap
Termination Payments.
"Swap Termination Event" means (i) certain events of insolvency or
bankruptcy of the Issuer or the Swap Counterparty as specified in the Interest
Rate Swap Agreement; (ii) any Event of Default under the Indenture that results
in the acceleration of the Notes or involving an uncured payment default; (iii)
the Issuer or Swap Counterparty becomes subject to registration as an
"investment company" under the Investment Company Act of 1940; and (iv) certain
standard termination events under the 1992 ISDA Master Agreement as specified in
the Interest Rate Swap Agreement including "Illegality," "Tax Event" and "Tax
Event Upon Merger," each as more fully described in Sections 5(b)(i), 5(b)(ii)
and 5(b)(iii) of the 1992 ISDA Master Agreement.
"Swap Termination Payment" means any termination payment payable by the
Issuer to the Swap Counterparty or by the Swap Counterparty to the Issuer under
the Interest Rate Swap Agreement.
"Trust Agreement" means the Trust Agreement dated as of September 17, 2002,
as amended and restated by the Amended and Restated Trust Agreement dated as of
October 1, 2002, by and between Toyota Auto Finance Receivables LLC, as
depositor, and U.S. Bank Trust National Association, as Owner 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
9
Noteholders (including, without limitation, all property and interests Granted
to the Indenture Trustee pursuant to the Granting Clause), 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 with direct
responsibility for the administration of the Indenture and the Basic Documents
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."
Section 1.03 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.
10
ARTICLE II
The Notes
---------
SECTION 2.01 Form. The Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes and the Class A-4 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 $430,000,000, Class A-2 Notes for original issue
in an aggregate principal amount of $320,000,000, Class A-3 Notes for original
issue in an aggregate principal amount of $498,000,000 and Class A-4 Notes for
original issue in an aggregate principal amount of $207,000,000. The aggregate
principal amount of the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes and the Class A-4 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
11
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) No transfer of any Class A-1 Note shall be made unless such resale or
transfer is made (i) pursuant to an effective Registration Statement under the
Securities Act, (ii) in a transaction (other than a transaction in clause (iv)
below) exempt from the registration requirements of the Securities Act and
applicable state and foreign securities laws, (iii) to any Affiliate of TMCC or
(iv) to a Person who the transferor of such Class A-1 Note reasonably believes
is a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act and that is aware that the resale or other transfer is being made
in reliance on Rule 144A or to an institutional "accredited investor" as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act (an "Institutional
Accredited Investor"). In the event that a transfer is to be made as described
in clause (ii) of the preceding sentence, the prospective transferee shall
deliver or cause to be delivered an Opinion of Counsel in the form and substance
satisfactory to the Issuer to the effect that such transfer may be made without
registration under the Securities Act or any applicable state or foreign
securities laws. In the event that a transfer is to be made to an
12
institutional accredited investor as described in clause (iv), the Indenture
Trustee shall require that the transferee execute a representation letter
acceptable to and in form and substance satisfactory to the Issuer certifying to
the Indenture Trustee the facts surrounding such transfer, which representation
shall not be an expense of the Indenture Trustee or the Servicer. In the case of
a transfer under either clause (ii) or clause (iv), the Holder of a Class A-1
Note desiring to effect such transfer, shall and does hereby agree to, indemnify
the Indenture Trustee, the Issuer and the Servicer against any liability that
may result if the transfer is not so exempt or is not made in accordance with
the Securities Act and such state and foreign securities laws. Neither the
Servicer, the Issuer nor the Indenture Trustee is under any obligation to
register any Class A-1 Notes under the Securities Act or any applicable state or
foreign securities laws. Prospective purchasers of the Class A-1 Notes are
hereby notified that the seller of any Class A-1 Notes may be relying on the
exemption from the registration requirements of Section 5 of the Act provided by
Rule 144A under the Act.
The Class A-1 Notes, this Indenture and related documents may be amended or
supplemented from time to time without the consent of any Noteholder to modify
restrictions on and procedures for resale and other transfer of such Class A-1
Notes to reflect any change in applicable law or regulation (or the
interpretation thereof) or practices relating to the resale or transfer of
restricted securities generally.
(c) 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.
(d) 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 Indenture Trustee and the Note Registrar duly executed
by the Holder thereof or his attorney duly authorized in writing.
(e) 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.
(f) All Notes surrendered for registration of transfer or exchange shall be
canceled and subsequently destroyed pursuant to Section 2.08.
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
13
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, 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 and the
Class A-4 Notes shall accrue interest during each Interest Period at the Class
A-1 Rate, the Class A-2 Rate, the Class A-3 Rate and the Class A-4 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 by wire
transfer in immediately available funds to the account designated by such
Person.
14
(b) The principal of each Note and, as applicable, the Subordinated
Seller's Interest, 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.
(c) In the event that any withholding tax is imposed on the Trust's payment
(or allocations of income) to the Noteholders, such tax shall reduce the amount
otherwise distributable to the Noteholders in accordance with this Section. The
Issuer will instruct the Indenture Trustee regarding the imposition of such
withholding tax and, upon receiving such instruction, the Indenture Trustee is
hereby authorized and directed to retain from amounts otherwise distributable to
the Noteholders sufficient funds for the payment of any tax that is legally owed
by the Trust (but such authorization shall not prevent the Indenture 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 the Noteholders shall be
treated as cash distributed to the Noteholders 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 Indenture Trustee may in
its sole discretion withhold such amounts in accordance with this paragraph (c).
In the event that any Noteholder wishes to apply for a refund of any such
withholding tax, the Indenture Trustee shall reasonably cooperate with the
Noteholder in making such claim so long as the Noteholder agrees to reimburse
the Indenture Trustee for any out-of-pocket expenses incurred.
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.
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
15
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 Class A-2 Notes, the Class A-3 Notes and
the Class A-4 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 Note 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 Book-Entry Notes and the giving of
instructions or directions hereunder) as the authorized representative of such
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 such 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 in respect of the Book-Entry Notes 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 such 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 the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and/or the Class A-4 Notes evidencing a specified
percentage of the Outstanding Amount of the Notes or of any such Class or of two
or more of such Classes, 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 of Book-Entry Notes and/or Clearing Agency Participants owning
or representing, respectively, such required percentage of the beneficial
interest in such 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 the Note Owners of Book-Entry
Notes pursuant to Section 2.12, the Indenture Trustee shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Notes to the Clearing Agency and shall be deemed to have been given
as of the date of delivery to the Clearing Agency.
16
SECTION 2.12 Definitive Notes. The Class A-1 Notes, upon original issuance,
will be issued as Definitive Notes. In the case of the Book-Entry 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 Book-Entry Notes, 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 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.
ARTICLE III
Covenants
---------
SECTION 3.01 Payments to Noteholders, Certificateholder, Holder of the
Revolving Liquidity Note, Swap Counterparty, Servicer and Seller. 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, (ii) pay to the Swap Counterparty any Swap Payments Outgoing and
Swap Termination Payment when due, (iii) pay to the Holder of the Revolving
Liquidity Note payments under the Revolving Liquidity Note when due, (iv) pay
17
the principal of the Certificate in accordance with the terms of the
Certificate, and (v) release from the Collection Account and Payahead Account
all other amounts distributable or payable from the Owner Trust Estate
(including distributions to be made to the Certificateholder on any Payment
Date) under the Trust Agreement, Sale and Servicing Agreement, the Revolving
Liquidity Note 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 and (d) for the benefit of the Class A-4 Notes, to the Class A-4
Noteholders, in each case as set forth in Sections 5.06 and 5.07 of the Sale and
Servicing Agreement, (ii) for the benefit of the Swap Counterparty, to or as
directed by the Servicer pursuant to Section 5.06 of the Sale and Servicing
Agreement; (iii) for the benefit of the Holder of the Revolving Liquidity Note,
as set forth in Section 5.06 and 5.07 of the Sale and Servicing Agreement; (iv)
for the benefit of the Servicer, to or as directed by the Servicer pursuant to
Section 5.06 of the Sale and Servicing Agreement; and (v) for the benefit of the
Certificateholder, 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.
Amounts properly withheld under the Code by any Person from a payment to any
Noteholder or the Certificateholder of interest and/or principal shall be
considered as having been paid by the Issuer to such Noteholder or the
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 The Bank of New York 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, the Revolving Liquidity Note
or the Certificate, or to the Swap Counterparty (to the extent such payments to
the Swap Counterparty were not deducted from amounts remitted to the Collection
Account by the Servicer pursuant to Section 5.04(e) of the Sale and Servicing
Agreement) that are to be made from amounts withdrawn from the Collection
Account or Reserve Fund (provided that only the Collection Account is available
for any amounts payable to the Swap Counterparty) 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, the Revolving Liquidity Note, the Certificate or to the Swap
Counterparty (provided that such amounts payable to the Swap Counterparty were
not deducted from amounts remitted to the Collection Account by the Servicer
pursuant to Section 5.04(e) of the Sale and Servicing
18
Agreement) 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 draws on the Revolving Liquidity Note or 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 the
Certificate, 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.
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, the Revolving Liquidity Note, the Certificate or to the Swap
Counterparty or for release to the Issuer for payment to the Certificateholder
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 to the Swap
Counterparty or the release of any amounts to the Issuer to be paid to the
Certificateholder;
(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), the Revolving Liquidity Note or to the Swap Counterparty 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, the Revolving Liquidity
Note or the Certificate (or assisting the Issuer to withhold from payment to the
Certificateholder) or to the Swap Counterparty 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
19
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.
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 statutory 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;
20
(c) enforce any of the Collateral (including all rights under the Interest
Rate Swap Agreement and Revolving Liquidity Note Agreement);
(d) make draw requests pursuant to the terms of the Revolving Liquidity
Note Agreement under any circumstance in which the Issuer or the Indenture
Trustee has the right to make such draws pursuant to the terms of the Revolving
Liquidity Note Agreement; or
(e) 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 and file 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 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 and the Interest Rate Swap
Agreement.
(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
21
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 shall specify in such
notice the action, if any, the Issuer is taking with respect of such default,
and the Indenture Trustee shall promptly notify the Rating Agencies of such
Servicer Default and proposed actions of the Issuer. 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.
(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, or if the Servicer resigns in accordance with the
terms of the Sale and Servicing Agreement, the Indenture Trustee shall give
prompt written notice of such event to the Noteholders and each Rating Agency
and shall act to appoint a successor servicer (the "Successor Servicer"). Any
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
22
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 and the
Interest Rate Swap Agreement 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, the
Holder of the Revolving Liquidity Note, the Swap Counterparty or the
Certificateholder, and in each case with the consent of the Indenture Trustee
(but without the consent of any of the Noteholders or the Certificateholder) 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, the Holder of the
Revolving Liquidity Note, the Swap Counterparty or the 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, the Holder of the Revolving Liquidity
Note, the Swap Counterparty or the Certificateholder) 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 the Certificate without
the consent of all Holders of each affected 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 and the Interest Rate Swap
Agreement. 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 and the Interest Rate Swap
Agreement, 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;
23
(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 liens of this Indenture, the Interest Rate Swap Agreement or the
Revolving Liquidity Note Agreement) 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, the Interest
Rate Swap Agreement and the Revolving Liquidity Note 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 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
24
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 Section 3.10 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).
(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 Revolving Liquidity Note 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
25
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 have notified the Indenture Trustee and
the Owner Trustee that such transaction would 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, the Holder of the Revolving Liquidity Note 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
Section 3.10 and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing required
by the Exchange Act).
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 2002-C 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 2002-C 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, including issuing the Revolving Liquidity Note pursuant to
the Revolving Liquidity Note Agreement.
26
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, the Revolving Liquidity Note or other
obligations permitted hereunder (including the obligation to reimburse Advances
from the Trust Estate or pay expenses from the Trust Estate) or under another
Basic Document (including indemnification expenses of the Issuer and certain
fees and expenses of the Servicer and 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, the
Revolving Liquidity Note 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 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.
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 the 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 Certificateholder 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.
27
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, each default on the part of
TMCC of its obligations under the Receivables Purchase Agreement, each Swap
Event of Default and any default by the Holder of the Revolving Liquidity Note
of its obligations under the Revolving Liquidity Note 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) Section 3.03, (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, the Certificateholder, the Holder of the Revolving Liquidity Note
and the Swap Counterparty 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:
(a) either (1) all Notes and the Revolving Liquidity Note 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 and the Interest Rate Swap Agreement and
the Revolving Liquidity Note Agreement have been terminated and all Swap
Payments Outgoing and, if applicable, any Swap Termination Payments owed by the
Issuer to the Swap Counterparty have been paid and all payments owed under the
Revolving Liquidity Note Agreement have been paid 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 A-4 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
28
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, the Revolving Liquidity Note when
due and all amounts due to the Swap Counterparty;
(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, the Sale and
Servicing Agreement 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, (b) applied by it in accordance with the provisions of
the Revolving Liquidity Note Agreement to payment for amounts due to the Holder
of the Revolving Liquidity Note, (c) applied by it in accordance with the
provisions of the Interest Rate Swap Agreement, the Sale and Servicing Agreement
and this Indenture to the payment, either directly or through any Paying Agent,
as the Indenture Trustee may determine, to the Swap Counterparty any Swap
Payments Outgoing or Swap Termination Payment due (provided that such amounts
were not deducted from amounts remitted to the Collection Account by the
Servicer pursuant to Section 5.04(e) of the Sale and Servicing Agreement), or
(d) released to the Owner Trustee for distribution to the Certificateholder 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.
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
29
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; or
(b) 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
(c) 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;
(d) 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
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
(e) 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;
(f) 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;
30
(g) termination of the Interest Rate Swap Agreement on the Early
Termination Date (as defined in the Interest Rate Swap Agreement), without the
execution by the Trust and a replacement Swap Counterparty of a replacement
Interest Rate Swap Agreement with substantially the same terms as the Interest
Rate Swap Agreement and acceptable to the Issuer and the Indenture Trustee and
the assignment of such replacement Interest Rate Swap Agreement to the Indenture
Trustee; or
(h) default in the payment by the Holder of the Revolving Liquidity Note of
its funding obligations under the Revolving Liquidity Note Agreement.
For purposes of determining whether an Event of Default pursuant to Section
5.01(b) 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 as principal pursuant to Sections 5.06(c) and (d) 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
and (iv) the Class A-4 Notes are required to be paid in full on or before the
Class A-4 Final Scheduled Payment Date, meaning that Holders of Class A-4 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-4 Initial Principal
Balance together with all interest accrued thereon through such date.
The Issuer shall deliver to the Indenture Trustee and the Swap
Counterparty, 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 (c),
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 the Holders of at least 51% of the Outstanding Amount of
the Class A Notes acting together as a single Class (excluding for such purposes
the outstanding principal amount of any Notes held of record or beneficially
owned by TMCC, TAFR LLC or any of their Affiliates), may, without the consent of
the Certificateholder, 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.
31
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, the
Holders of Class A Notes representing at least 51% of the Outstanding Amount of
the Class A Notes (excluding for such purposes the outstanding principal amount
of any Notes held of record or beneficially owned by TMCC, TAFR LLC or any of
their Affiliates), acting together as a single Class, without the consent of the
Certificateholder, 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 (including
all payments payable to the Holder of the Revolving Liquidity Note under
the Revolving Liquidity Note Agreement and the Swap Counterparty under the
Interest Rate Swap Agreement) 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 or
interest of the Notes that has become due solely by such acceleration, have been
cured or waived as provided in Section 5.12.
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 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, 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.
32
(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 Certificateholder, 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
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 the
Certificate, 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 the Certificateholder 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, the Holder of the Revolving
Liquidity Note, the Swap Counterparty or the Certificateholder and of the
Indenture Trustee on their behalf; and
33
(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, the Swap Counteparty or the Holder of the
Revolving Liquidity Note 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, the Swap
Counterparty and the Holder of the Revolving Liquidity Note, 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 or the Holder of the Revolving Liquidity Note 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 or the Holder of the Revolving
Liquidity Note 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, the Revolving Liquidity Note Agreement or the Interest
Rate Swap Agreement, 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,
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 the Holder of the Revolving
Liquidity Note and, incidentally thereto, for the benefit of the
Certificateholder.
(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 the Holder of the Revolving Liquidity
Note, and it shall not be necessary to make any Noteholder or the Holder of the
Revolving Liquidity Note a party to any such Proceedings.
SECTION 5.04 Remedies; Priorities; Insolvency of Seller.
(a) If an Event of Default under Section 5.01 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(b)(iv)), and unless and until such acceleration has been rescinded,
the Indenture Trustee will make payments on the Notes, the Revolving Liquidity
Note and the Certificate as set forth in Section 5.06(d) of the Sale and
Servicing Agreement, rather than pursuant to Section 5.06(c).
34
(b) 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):
(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, to the
Swap Counterparty, to the Holder of the Revolving Liquidity Note, or under
this Indenture with respect thereto, whether by declaration or otherwise,
enforce any judgment obtained, and collect from the Issuer, the Swap
Counterparty 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), (g) or (h),
unless (A) the Holders of 100% of the Outstanding Amount of the Class A
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). 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. 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 basis 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, the
Swap Counterparty, the Holder of the Revolving Liquidity Note Agreement and
the Certificateholder 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
35
the amount of such proceeds or the adequacy thereof to make payments in
full of any Class of Notes, the Revolving Liquidity Note, or the
Certificate.
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.
(c) If an Insolvency Event occurs with respect to the Seller, the Indenture
Trustee (or the Indenture Trustee for the Class A Notes, pursuant to Section
5.04(b)) will 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 in accordance with the provisions of Section 9.02
of the Trust Agreement; provided, however, that the Indenture Trustee (or the
Indenture Trustee for the Class A Notes, pursuant to Section 5.04(b)) may not
sell or otherwise liquidate the Trust Estate in connection with such event if,
prior to the termination of the Trust Agreement pursuant to Section 9.02 of the
Trust Agreement, the Holders of at least 51% of the Outstanding Amount of the
Class A Notes so long as any amounts remain unpaid with respect to such Notes
(excluding from such action and calculation all Notes held by TMCC, TAFR LLC 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 basis 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, the Swap Counterparty,
the Holder of the Revolving Liquidity Note 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, the Revolving Liquidity Note or the Certificate. 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 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(b)(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 Class A Notes, acting together as a single class (excluding from
such action and calculation all Notes held by TMCC, TAFR LLC or any of their
Affiliates), but need not, elect to maintain possession of the Trust Estate and
direct the Issuer,
36
Servicer and Administrator not to take steps to liquidate the Receivables. It is
the desire of the parties hereto, the Swap Counterparty, the Holder of the
Revolving Liquidity Note and the Noteholders that there be at all times
sufficient funds for the payment of any obligations under the Interest Rate Swap
Agreement to the Swap Counterparty and principal of and interest on the Notes,
payment of amounts due to the Holder of the Revolving Liquidity Note, 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:
(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 Class
A Notes, acting together as a single class, 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 and the Holder of the Revolving Liquidity Note (subject to the terms of
the Sale and Servicing Agreement) 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 in the case of the
Revolving Liquidity Note, only to the extent amounts are available therefor
under the terms of 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.
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
37
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 or the
Holder of the Revolving Liquidity Note is intended to be 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, the Holder of the Revolving Liquidity Note 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, the Holder of the
Revolving Liquidity Note or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee, the
Holder of the Revolving Liquidity Note 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 Class A Notes, acting together as a single class,
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 applicable (excluding for such
purposes the outstanding principal amount of any Notes held of record or
beneficially owned by TMCC, TAFR LLC 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 would be illegal or may not lawfully be taken, might
subject it to personal liability or would be unduly prejudicial to the rights of
any Noteholders not consenting to such action.
38
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, 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 the Holder of
the Certificate or the Revolving Liquidity Note (excluding for such purposes the
outstanding principal amount of any Notes held of record or beneficially owned
by TMCC, TAFR LLC or any of their Affiliates); may waive any past Default, Event
of Default or Servicer Default and its consequences except a (a) Servicer
Default in the deposit of collections or other required amounts into the
Collection Account, Payahead Account or Reserve Fund, or (b) Default 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, and the Holder of the
Revolving Liquidity Note by such Holder's acceptance of the Revolving Liquidity
Note Agreement, 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 or the
Holder of the Revolving Liquidity Note for the enforcement of the payment of
principal of or interest on any Note or Revolving Liquidity Note on or after the
respective due dates expressed in such Note, the Revolving Liquidity 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.
39
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes, the Interest Rate Swap Agreement, the Revolving
Liquidity Note 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 any
of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.06.
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, the Servicer, the Holder of the Revolving Liquidity Note and the
Swap Counterparty, as applicable, of each of their obligations to the Issuer
under or in connection with the Sale and Servicing Agreement, the Revolving
Liquidity Note Agreement and the Interest Rate Swap 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 and the Revolving Liquidity Note 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, the Servicer or the Holder of the
Revolving Liquidity Note thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller, the Servicer, or the Holder of the Revolving Liquidity Note of each of
their respective obligations under the Sale and Servicing Agreement and the
Revolving Liquidity Note 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 Class A Notes (acting together as a single
class but excluding for such purposes the outstanding principal amount of any
Notes held of record or beneficially owned by TMCC, TAFR LLC or any of their
Affiliates), shall exercise all rights, remedies, powers, privileges and claims
of the Issuer against the Seller, the Servicer, the Holder of the Revolving
Liquidity Note and the Swap Counterparty under or in connection with the Sale
and Servicing Agreement, the Revolving Liquidity Note Agreement and the Interest
Rate Swap 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.
40
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 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 the Holders of at least 51% of the
Outstanding Amount of the Class A Notes (acting together as a single class
but excluding for such purposes the outstanding principal amount of any
Notes held of record or beneficially owned by TMCC, TAFR LLC 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
41
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 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, the Revolving
Liquidity Note Agreement (except as specified in Section 3.05(d) herein) or
the Sale and Servicing Agreement, or to institute, conduct or defend any
litigation under this Indenture, or in relation to this Indenture, the
Revolving Liquidity Note Agreement or the Sale and Servicing Agreement, at
the request, order or direction of any of the Noteholders pursuant to the
provisions of this Indenture, the Revolving Liquidity Note Agreement or the
Sale and Servicing Agreement, unless such Noteholders shall have offered to
the Indenture Trustee
42
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 Class A Notes (acting
together as a single class but excluding for such purposes the outstanding
principal amount of any Notes held of record or beneficially owned by TMCC,
TAFR LLC 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, the
Revolving Liquidity Note Agreement, the Interest Rate Swap Agreement or 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 Certificate.
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
or the Sale and Servicing Agreement. 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, the Interest Rate Swap
43
Agreement, the Revolving Liquidity Note Agreement 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, to the Holder of the Revolving Liquidity Note under the Revolving
Liquidity Note Agreement or to the Swap Counterparty under the Interest Rate
Swap Agreement, 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, 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 Interest Rate Swap Agreement, the Revolving
Liquidity Note Agreement, the Notes or the 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, the Holder of the Revolving
Liquidity Note, the Swap Counterparty or any other Person with respect to any
such claim, and any such claim shall be asserted solely against the Issuer 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. Anything
in this Indenture to the contrary notwithstanding, in no event shall the
Indenture Trustee be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits), even
if the Indenture Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
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 and the Swap Counterparty notice of such
Default within 10 days of the discovery 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
44
maturity date of certain indebtedness owed by the Issuer 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 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 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, the Issuer's and the Servicer's payment obligations to
the Indenture Trustee pursuant to this Section shall survive the discharge of
this Indenture and shall extend to any co-trustee or separate trustee appointed
pursuant to Section 6.10. When the Indenture Trustee incurs expenses after the
occurrence of a Default specified in Section 5.01(e) or (f) 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;
45
(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 and the Swap Counterparty. 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 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, the Servicer'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
46
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:
(i) 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;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) 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
47
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.
(d) 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.
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 Revolving Liquidity Note Provisions. The Issuer has entered
into the Revolving Liquidity Note Agreement, in a form satisfactory to the
Rating Agencies, as a credit and liquidity enhancement arrangement that will
provide funding for certain required payments of principal and interest on the
Notes in the event that Available Collection and any amounts on deposit in the
Reserve Account that are available therefore are insufficient to fund such
required payments. All payments owed by the Issuer to the Holder of the
Revolving Liquidity Note will be fully subordinated to payments of principal and
interest on the Class A Notes.
(a) As provided in Sections 5.06 and 5.07 of the Sale and Servicing
Agreement, the Indenture Trustee will be responsible for remitting all
payments to the Holder of the Revolving Liquidity Note.
(b) Upon the occurrence of a default by the Holder of the Revolving
Liquidity Note of its funding obligations pursuant to Sections 2.1 and 2.2
of the Revolving Liquidity Note Agreement, if the Notes are accelerated
pursuant to Section 5.02 hereof, the priority of payments relating to the
Class A Notes shall change to those set forth in Section 5.06(d) of the
Sale and Servicing Agreement.
48
(c) Prior to the termination of this Indenture, the Revolving Liquidity
Note Agreement may be amended by the Issuer and the Holder of the Revolving
Liquidity Note, with the consent of the Indenture Trustee, but without the
consent of any of the Noteholders or the Certificateholder, 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 Certificateholder; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel
delivered to the Indenture Trustee, adversely affect in any material
respect the interests of any Noteholder or Certificateholder. Prior to the
termination of this Indenture, the Revolving Liquidity Note Agreement may
also be amended by the Issuer and the Holder of the Revolving Liquidity
Note, with the consent of the Indenture Trustee, but without the consent of
any of the Noteholders or the Certificateholder only if the Indenture
Trustee (i) has received a letter from Standard & Poor's to the effect that
Standard & Poor's will not qualify, reduce or withdraw the rating it has
currently assigned to any Class of Notes as a result of such amendment and
(ii) has provided Moody's with 10 days prior written notice of such
amendment and Moody's shall not have notified the Indenture Trustee that
such amendment might or would result in the qualification, reduction or
withdrawal of the rating it has currently assigned to any Class of Notes.
After the termination of this Indenture, the Revolving Liquidity Note
Agreement may be amended in writing by the Issuer and the Holder without
notice to or consent of any other Person.
SECTION 6.14 Interest Rate Swap Provisions. The Issuer has entered into the
Interest Rate Swap Agreement, in a form satisfactory to the Rating Agencies, to
hedge the floating rate interest expense on the Class A-2 and A-4 Notes. The
Issuer may, from time to time, enter into one or more replacement Interest Rate
Swap Agreements in the event that any Interest Rate Swap Agreement is terminated
prior to its scheduled expiration pursuant to a Swap Event of Default or a Swap
Termination Event. All Swap Payments Outgoing and Swap Termination Payments owed
by the Issuer to the Swap Counterparty will rank senior to interest payments on
the Class A Notes.
(a) Except as provided in Section 5.04(e) of the Sale and Servicing
Agreement, the Indenture Trustee will be responsible for remitting all Swap
Payments Outgoing and any Swap Termination Payments payable to the Swap
Counterparty and for collecting Swap Payments Incoming and any Swap
Termination Payments payable by the Swap Counterparty.
(b) Upon the occurrence of (i) any Swap Event of Default arising from
any action taken, or failure to act, by the Swap Counterparty, or (ii) any
Swap Termination Event (except as described in the following sentence) with
respect to which the Swap Counterparty is an Affected Party (as defined in
the Interest Rate Swap Agreement), the Indenture Trustee may and will, at
the direction of the Holders of at least 51% of the Outstanding Amount of
the Class A-2, Class A-3 and Class A-4 Notes, acting together as a single
Class (excluding for such purposes the outstanding principal amount of any
Notes held of record or beneficially owned by TMCC, TAFR LLC or any of
their Affiliates), designate an Early Termination Date (as defined in the
Interest Rate Swap Agreement) with respect to the Swap Agreement. If a Swap
Termination Event occurs (i)
49
as a result of the insolvency or bankruptcy of the Issuer or the Swap
Counterparty or (ii) because the Issuer or the Swap Counterparty becomes
subject to registration as an "investment company" under the Investment
Company Act of 1940, the Indenture Trustee will designate an Early
Termination Date.
(c) At least five days before the effective date of any proposed
amendment or supplement to the Interest Rate Swap Agreement, the
Administrator shall provide the Rating Agencies with a copy of such
amendment or supplement. Unless the amendment or supplement is for the
purpose of clarifying any term or provision, correcting any inconsistency,
curing any ambiguity, or correcting any typographical error in the Interest
Rate Swap Agreement, an amendment or supplement to the Interest Rate Swap
Agreement will be effective only after satisfaction of the Rating Agency
Condition.
(d) The Administrator shall notify the Swap Counterparty of any
proposed amendment or supplement to any of the Basic Documents. If such
proposed amendment or supplement would adversely affect any of the Swap
Counterparty's rights or obligation under the Interest Rate Swap Agreement
or modify the obligations of, or impair the ability of the Issuer to fully
perform any of its obligations under the Interest Rate Swap Agreement, the
Administrator shall obtain the consent of the Swap Counterparty prior to
the adoption of such amendment of supplement, provided, the Swap
Counterparty's consent to any such amendment or supplement shall not be
unreasonably withheld, and provided further, the Swap Counterparty's
consent will be deemed to have been given if the Swap Counterparty does not
object to writing within ten Business Days of receipt of a written request
for such consent.
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. The 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
50
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 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.
51
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on March 31 of each year.
SECTION 7.04 Reports by Indenture Trustee. If required by TIA Section
313(a), within 60 days after each March 31 beginning with 2002, 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.
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 Certificateholder, the
Holder of the Revolving Liquidity Note and the Swap Counterparty, 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 Prohibition 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 Prohibition Notice provided for in the Securities
Account Control Agreement.
52
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 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.
53
(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 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 such property, 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, all sums due to the Swap Counterparty and the Holder of the
Revolving Liquidity Note have been paid 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
54
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 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, the Holder of the Revolving Liquidity Note or the Swap
Counterparty, 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 Certificate or the Swap
Counterparty;
(f) to evidence and provide for the acceptance of the appointment hereunder
by a successor trustee with respect to the Notes and the Swap Counterparty and
to add to or change
55
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.
SECTION 9.02 Supplemental Indentures with Consent of Noteholders. Subject
to Sections 6.14 and 9.03, 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 the Holders of at least 51% of the Outstanding Amount of the
Class A Notes, acting together as a single Class (excluding for such purposes
the outstanding principal amount of any Notes held of record or beneficially
owned by TMCC, TAFR LLC 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 or the Revolving Liquidity Note would be adversely affected by any
supplemental indenture (which determination will be based on such supplemental
indenture not resulting in a downgrade in the ratings applicable to the Notes)
and any such determination shall be conclusive upon the Holders of all Notes and
the Revolving Liquidity Note, 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 9.03 Limitations on Supplemental Indentures The Issuer and the
Indenture Trustee, in accordance with Sections 9.01 and 9.02 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
56
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note, the Holder of the Revolving Liquidity Note or the Swap
Counterparty if their respective interests are 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, to the extent provided in Article V, requiring the application of
funds available therefor 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;
(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 or to the Swap Counterparty or the Holder of the Revolving Liquidity
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.
SECTION 9.04 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,
57
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 9.05 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, the Holders of the Notes, the Swap
Counterparty, the Holder of the Revolving Liquidity Note and the
Certificateholder 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.
SECTION 9.06 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 9.07 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,
the payment to the Swap Counterparty all amounts required to be paid to it
pursuant to the Interest Rate Swap Agreement, the payment to the Holder of the
Revolving Liquidity Note of all amounts required to be paid to it pursuant to
the Revolving Liquidity Note Agreement and the release to the Seller of the
amounts held in the
58
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 Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. Xxxxx, 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 Servicer, or any successor to the
Servicer, or the Indenture 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 Swap Counterparty, the Holder of the
Revolving Liquidity Note, 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, the Swap Counterparty or to the
Holder of the Revolving Liquidity Note pursuant to Section 4.01 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 Collection Account and all of its rights to make withdrawals from the
Payahead Account and the Reserve Account (excluding any portion thereof
necessary to make distributions to Noteholders described in Section 3.03) to the
Owner Trustee for the benefit of the Certificateholder 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.
59
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:
(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
60
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 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
61
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.
(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 2002-C Owner
Trust, 00000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, 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.
62
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: Xxxxx'x Investors Service, Inc., ABS
Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (ii) in the
case of Standard & Poor's, at the following address: Standard & Poor's Ratings
Group, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, 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.
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 or the Revolving Liquidity
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
63
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 Indenture and shall
in no way affect the validity or enforceability of the other provisions of this
Indenture or of the Notes, Interest Rate Swap Agreement, the Revolving Liquidity
Note Agreement or the Revolving Liquidity Note, or the Certificate or the rights
of the Holders thereof.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture, the Notes,
the Interest Rate Swap Agreement or the Revolving Liquidity Note, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the Owner Trustee, the Administrator, the Servicer, the
Swap Counterparty, the Holder of the Revolving Liquidity Note 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. Regardless of any provision in any other agreement, for purposes of the
UCC, New York shall be deemed to be the Securities Intermediary's jurisdiction.
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
64
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 Swap Counterparty, the Holder
of the Revolving Liquidity Note, the Issuer, the Owner Trustee or the Indenture
Trustee on the Interest Rate Swap Agreement, the Notes, the Revolving Liquidity
Note Agreement or the Certificate 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 (excluding for such purposes the outstanding
principal amount of any Notes held of record or beneficially owned by TMCC, TAFR
LLC or any of their Affiliates), 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 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 Certificate 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.
65
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 2002-C OWNER TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Indenture Trustee and Securities
Intermediary
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Treasurer
S-1
STATE OF Illinois
-------------------
COUNTY OF Xxxx
------------------
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 TRUST
NATIONAL ASSOCIATION, not in its individual capacity but as Owner Trustee of the
TOYOTA AUTO RECEIVABLES 2002-C OWNER TRUST, a Delaware statutory trust, and that
such person executed the same as the act of said statutory trust for the purpose
and consideration therein expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 25th day of October, 2002.
/s/ Xxxxxxxxxx Xxxx
--------------------------------------------------
Notary Public in and for the State of Illinois
(Seal)
My commission expires:
5-19-2003
-------------------------
STATE OF New York
-------------------
COUNTY OF Kings
------------------
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 THE BANK OF NEW YORK,
not in its individual capacity but as Indenture Trustee and Securities
Intermediary in connection with the Toyota Auto Receivables 2002-C Owner Trust,
a Delaware statutory trust, and that such person executed the same as the act of
said statutory trust for the purpose and consideration therein expressed, and in
the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 25th day of October, 2002.
/s/ Xxxxxxx X. Clan
--------------------------------------------------
Notary Public in and for the State of NY
(Seal)
My commission expires:
Aug. 28, 2006
-------------------------
EXHIBIT A-1
FORM OF CLASS A-1 NOTE
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 HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (I) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, (II) IN A TRANSACTION (OTHER THAN A TRANSACTION IN CLAUSE (IV) BELOW)
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE
STATE AND FOREIGN SECURITIES LAWS, (III) TO ANY AFFILIATE OF TOYOTA MOTOR CREDIT
CORPORATION OR (IV) TO A PERSON WHO THE TRANSFEROR OF SUCH CLASS A-1 NOTE
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT AND THAT IS AWARE THAT THE RESALE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT, AND IN ANY CASE MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE
PROVISIONS OF THE INDENTURE GOVERNING TRANSFER OF THE CLASS A-1 NOTES.
THIS NOTE IS NOT AN OBLIGATION OF, AND WILL NOT BE INSURED OR GUARANTEED
BY, ANY GOVERNMENTAL AGENCY OR TOYOTA AUTO FINANCE RECEIVABLES LLC, TOYOTA MOTOR
CREDIT CORPORATION, TOYOTA MOTOR SALES, U.S.A., INC., TOYOTA FINANCIAL SERVICES
CORPORATION, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. THE PRINCIPAL AND INTEREST ON THIS NOTE IS PAYABLE SOLELY FROM
PAYMENTS ON THE RECEIVABLES AND AMOUNTS ON DEPOSIT IN THE RESERVE ACCOUNT.
X-0-0
Xx. 0 $430,000,000
CUSIP No. [_________]
ISIN No. : [_____________]
TOYOTA AUTO RECEIVABLES 2002-C OWNER TRUST
CLASS A-1 1.80% ASSET BACKED NOTES
Toyota Auto Receivables 2002-C Owner Trust, a statutory 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 TOYOTA MOTOR CREDIT
CORPORATION, or registered assigns, the principal sum of FOUR HUNDRED THIRTY
MILLION DOLLARS ($430,000,000) payable on each Payment Date in an amount equal
to the result obtained by multiplying (i) a fraction the numerator of which is
$430,000,000 and the denominator of which is $430,000,000 by (ii) the aggregate
amount, if any, payable from the Collection Account in respect of principal on
the Class A-1 Notes pursuant to Section 3.01 of the Indenture dated as of
October 1, 2002, between the Issuer and The Bank of New York, a New York State
banking institution, as Indenture Trustee (the "Indenture Trustee") and Sections
5.06(c) and 5.06(d) of the Sale and Servicing Agreement dated as of October 1,
2002, between the Issuer, TAFR LLC, 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 November 2003 (the "Class A-1 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 and Sections 5.06(c) and 5.06(d) of the Sale and Servicing
Agreement. Interest on this Note will accrue from, and including, each Payment
Date (or, in the case of the first Payment Date, from, and including, the
Closing Date) to, but excluding, the subsequent Payment 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.
A-1-2
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-1-3
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: October __, 2002
TOYOTA AUTO RECEIVABLES 2002-C
OWNER TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement,
By:
---------------------------------------
Authorized Signatory
A-1-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: October __, 0000
XXX XXXX XX XXX XXXX,
not in its individual capacity but
solely as Indenture Trustee,
By:
----------------------------------
Authorized Signatory
A-1-5
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 1.80% Asset Backed Notes, Class A-1 (herein called the "Class
A-1 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 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class
A-4 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 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 November 15, 2002.
Notwithstanding the foregoing, the entire unpaid principal amount of the
Notes shall be due and payable (i) on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of at least 51% of the Outstanding Amount of the Class A Notes, acting together
as a single class (but excluding for such purposes the outstanding principal
amount of any Notes held of record or beneficially owned by TMCC, TAFR LLC 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, (ii) 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 (iii) within 90 days of certain Insolvency Events with respect to
TAFR LLC. If any such event occurs, all principal payments on the Class A Notes
shall be made pro rata to the Class A 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 in the Note Register on the Record
Date. 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 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 Rate to the extent lawful.
A-1-6
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 Noteholder 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
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 that is not TMCC, TAFR LLC or an Affiliate of
either of them, 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 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.
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
A-1-7
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 principal amount of the
Notes of the Class or Classes specified therein, on behalf of the Holders of all
the Notes of such Classes, 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.
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-1-8
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.
X-0-0
XXXXXXX X-0
FORM OF CLASS A-2 AND CLASS A-4 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 AUTO FINANCE RECEIVABLES LLC, TOYOTA MOTOR
CREDIT CORPORATION, TOYOTA MOTOR SALES, U.S.A., INC., TOYOTA FINANCIAL SERVICES
CORPORATION, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. THE PRINCIPAL AND INTEREST ON THIS NOTE IS PAYABLE SOLELY FROM
PAYMENTS ON THE RECEIVABLES AND AMOUNTS ON DEPOSIT IN THE RESERVE ACCOUNT.
A-2-1
No. [______] $[_____________]
CUSIP No. [_______________]
ISIN No. : [_______________]
TOYOTA AUTO RECEIVABLES 2002-C OWNER TRUST
CLASS [A-2] [A-4] FLOATING RATE ASSET BACKED NOTES
Toyota Auto Receivables 2002-C Owner Trust, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [___________________________________]
MILLION DOLLARS ($[_______________]) payable on each Payment Date in an amount
equal to the result obtained by multiplying (i) a fraction the numerator of
which is $[______________] and the denominator of which is $[______________] by
(ii) the aggregate amount, if any, payable from the Collection Account in
respect of principal on the Class [A-2] [A-4] Notes pursuant to Section 3.01 of
the Indenture dated as of October 1, 2002, between the Issuer and The Bank of
New York, a New York State banking institution, as Indenture Trustee (the
"Indenture Trustee") and Sections 5.06(c) and 5.06(d) of the Sale and Servicing
Agreement dated as of October 1, 2002, between the Issuer, TAFR LLC, 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 [__________]
20[__] (the Class [A-2] [A-4] 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 of one-month
LIBOR/plus [___]% 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 and Sections 5.06(c) and 5.06(d) of the Sale and
Servicing Agreement. Interest on this Note will accrue from, and including, each
Payment Date (or, in the case of the first Payment Date, from, and including,
the Closing Date) to, but excluding, the subsequent Payment 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.
A-2-2
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-2-3
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: October __, 2002
TOYOTA AUTO RECEIVABLES 2002-C
OWNER TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement,
By:
----------------------------------------
Authorized Signatory
A-2-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: October __, 0000
XXX XXXX XX XXX XXXX,
not in its individual capacity but
solely as Indenture Trustee,
By:
----------------------------------------
Authorized Signatory
A-2-5
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Floating Rate Asset Backed Notes, Class [A-2] [A-4] (herein
called the "Class [A-2] [A-4] 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-2] [A-4] Notes are
subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class
A-4 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-2] [A-4] 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 November 15, 2002.
Notwithstanding the foregoing, the entire unpaid principal amount of the
Notes shall be due and payable (i) on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of at least 51% of the Outstanding Amount of the Class A Notes, acting together
as a single class (but excluding for such purposes the outstanding principal
amount of any Notes held of record or beneficially owned by TMCC, TAFR LLC 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, (ii) 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 (iii) within 90 days of certain Insolvency Events with respect to
TAFR LLC. If any such event occurs, all principal payments on the Class A Notes
shall be made pro rata to the Class A 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 in the Note Register 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 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
A-2-6
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-2] [A-4] Rate to the extent lawful.
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 Noteholder 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
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.
A-2-7
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 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.
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 principal amount of the
Notes of the Class or Classes specified therein, on behalf of the Holders of all
the Notes of such Classes, 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.
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-2-8
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.
X-0-0
XXXXXXX X-0
FORM OF CLASS A-3 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 AUTO FINANCE RECEIVABLES LLC, TOYOTA MOTOR
CREDIT CORPORATION, TOYOTA MOTOR SALES, U.S.A., INC., TOYOTA FINANCIAL SERVICES
CORPORATION, THE INDENTURE TRUSTEE, THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. THE PRINCIPAL AND INTEREST ON THIS NOTE IS PAYABLE SOLELY FROM
PAYMENTS ON THE RECEIVABLES AND AMOUNTS ON DEPOSIT IN THE RESERVE ACCOUNT.
X-0-0
Xx. 0 x000,000,000
XXXXX Xx. 00000XXX0
ISIN No. : [_______________]
TOYOTA AUTO RECEIVABLES 2002-C OWNER TRUST
CLASS A-3 2.65% ASSET BACKED NOTES
Toyota Auto Receivables 2002-C Owner Trust, a statutory 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 FOUR HUNDRED NINETY-EIGHT MILLION
DOLLARS ($498,000,000) payable on each Payment Date in an amount equal to the
result obtained by multiplying (i) a fraction the numerator of which is
$498,000,000 and the denominator of which is $498,000,000 by (ii) the aggregate
amount, if any, payable from the Collection Account in respect of principal on
the Class A-3 Notes pursuant to Section 3.01 of the Indenture dated as of
October 1, 2002, between the Issuer and The Bank of New York, a New York State
banking institution, as Indenture Trustee (the "Indenture Trustee") and Sections
5.06(c) and 5.06(d) of the Sale and Servicing Agreement dated as of October 1,
2002, between the Issuer, TAFR LLC, 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 November 2006 (the "Class A-3 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 and Sections 5.06(c) and 5.06(d) of the Sale and Servicing
Agreement. Interest on this Note will accrue 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 accrual period will be from (and
including) the Closing Date to (but excluding) November 15. 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.
A-3-2
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-3-3
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: October __, 2002
TOYOTA AUTO RECEIVABLES 2002-C
OWNER TRUST
By: U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement,
By:
------------------------------------------
Authorized Signatory
A-3-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: October __, 0000
XXX XXXX XX XXX XXXX,
not in its individual capacity but solely
as Indenture Trustee,
By:
------------------------------------------
Authorized Signatory
A-3-5
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 2.65% Asset Backed Notes, Class A-3 (herein called the "Class
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-3 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class
A-4 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-3 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 November 15, 2002.
Notwithstanding the foregoing, the entire unpaid principal amount of the
Notes shall be due and payable (i) on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of at least 51% of the Outstanding Amount of the Class A Notes, acting together
as a single class (but excluding for such purposes the outstanding principal
amount of any Notes held of record or beneficially owned by TMCC, TAFR LLC 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, (ii) 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 (iii) within 90 days of certain Insolvency Events with respect to
TAFR LLC. If any such event occurs, all principal payments on the Class A Notes
shall be made pro rata to the Class A 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 in the Note Register 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 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
A-3-6
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-3 Rate to the extent lawful.
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 Noteholder 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
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.
A-3-7
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 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.
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 principal amount of the
Notes of the Class or Classes specified therein, on behalf of the Holders of all
the Notes of such Classes, 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.
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-3-8
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-3-9
EXHIBIT B
(Form of Note Depository Agreement)
B-1-1
