TRUST AGREEMENT
between
TOYOTA MOTOR CREDIT RECEIVABLES CORPORATION,
as Depositor,
and
-,
as Owner Trustee
Dated as of _
TOYOTA AUTO RECEIVABLES 199 - OWNER TRUST
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions...................................................1
SECTION 1.02 Usage of Terms................................................4
ARTICLE II
CREATION OF TRUST
SECTION 2.01 Creation of Trust.............................................4
SECTION 2.02 Office........................................................4
SECTION 2.03 Purposes and Powers...........................................4
SECTION 2.04 Appointment of Owner Trustee..................................5
SECTION 2.05 Initial Capital Contribution of Owner Trust Estate............5
SECTION 2.06 Declaration of Trust..........................................5
SECTION 2.07 Liability of the Certificateholders, Depositor and TMCC.......6
SECTION 2.08 Title to Trust Property.......................................6
SECTION 2.09 Situs of Trust................................................6
SECTION 2.10 Representations and Warranties of the Depositor...............7
SECTION 2.11 Federal Income Tax Allocations................................8
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01 Initial Ownership.............................................8
SECTION 3.02 The Certificates..............................................8
SECTION 3.03 Authentication of Certificates................................9
SECTION 3.04 Registration of Transfer and Exchange of Certificates.........9
SECTION 3.05 Mutilated, Destroyed, Lost or Stolen Certificates............11
SECTION 3.06 Persons Deemed Owners........................................11
SECTION 3.07 Access to List of Certificateholders' Names and Addresses....11
SECTION 3.08 Maintenance of Office or Agency..............................12
SECTION 3.09 Appointment of Paying Agent..................................12
SECTION 3.10 Ownership by the Depositor of Certificates...................13
SECTION 3.11 Book-Entry Certificates......................................13
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SECTION 3.12 Notices to Clearing Agency...................................14
SECTION 3.13 Definitive Certificates......................................14
SECTION 3.14 Temporary Certificates.......................................14
ARTICLE IV
ACTIONS BY OWNER TRUSTEE OR OWNERS
SECTION 4.01 Prior Notice to Owners with Respect to Certain Matters.......15
SECTION 4.02 Action by Owners with Respect to Certain Matters.............15
SECTION 4.03 Action with Respect to Bankruptcy............................16
SECTION 4.04 Restrictions on Owners' Power................................16
SECTION 4.05 Majority Control.............................................16
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01 Establishment of Collection Account..........................16
SECTION 5.02 Application of Amounts in Trust Accounts.....................17
SECTION 5.03 Method of Payment............................................18
SECTION 5.04 Accounting and Reports to the Noteholders, Owners, the
Internal Revenue Service and Others..........................18
SECTION 5.05 Signature on Returns; Tax Matter Partner.....................18
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01 General Authority............................................19
SECTION 6.02 General Duties...............................................19
SECTION 6.03 Action Upon Instruction......................................19
SECTION 6.04 No Duties Except as Specified in this Agreement or in
Instructions.................................................20
SECTION 6.05 No Action Except Under Specified Documents or Instructions...21
SECTION 6.06 Restrictions.................................................21
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ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01 Acceptance of Trusts and Duties..............................21
SECTION 7.02 Furnishing of Documents......................................22
SECTION 7.03 Representations and Warranties...............................22
SECTION 7.04 Reliance; Advice of Counsel..................................23
SECTION 7.05 Not Actingin Individual Capacity.............................23
SECTION 7.06 Owner Trustee Not Liable for Certificates or Receivables.....24
SECTION 7.07 Owner Trustee May Own Certificates and Notes.................24
SECTION 7.08 [Pennsylvania Motor Vehicle Sales Finance Act Licenses.......24
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01 Owner Trustee's Fees and Expenses............................24
SECTION 8.02 Indemnification..............................................25
SECTION 8.03 Payments to the Owner Trustee................................25
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01 Termination of Trust Agreement...............................25
SECTION 9.02 Dissolution upon Bankruptcy of the Depositor.................26
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01 Eligibility Requirements for Owner Trustee...................27
SECTION 10.02 Resignation or Removal of Owner Trustee......................27
SECTION 10.03 Successor Owner Trustee......................................28
SECTION 10.04 Merger or Consolidation of Owner Trustee.....................28
SECTION 10.05 Appointment of Co-Trustee or Separate Trustee................28
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Supplements and Amendments...................................30
SECTION 11.02 No Legal Title to Owner Trust Estate in Owners...............31
SECTION 11.03 Limitations on Rights of Others..............................31
SECTION 11.04 Notices......................................................31
SECTION 11.05 Severability.................................................31
SECTION 11.06 Counterparts.................................................32
SECTION 11.07 Successors and Assigns.......................................32
SECTION 11.08 No Petition..................................................32
SECTION 11.09 No Recourse..................................................32
SECTION 11.10 Headings.....................................................32
SECTION 11.11 GOVERNING LAW................................................32
SECTION 11.12 TMCC Payment Obligation......................................32
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ARTICLE I
Definitions
1.01 Definitions. Except as otherwise specified herein or in the context
may otherwise require, capitalized terms used but not otherwise defined herein
have the meanings ascribed thereto in the Sale and Servicing Agreement for all
purposes of this Trust Agreement. Except as otherwise provided in this
Agreement, whenever used herein the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
"Administration Agreement" means any agreement executed on or before the
Closing Date among the Trust, the Indenture Trustee and a third party that
undertakes to perform certain of the duties and obligations of the Trust and the
Owner Trustee hereunder, under the Sale and Servicing Agreement and under the
Indenture.
"Agreement" means this Trust Agreement, as the same may be amended and
supplemented from time to time.
"Basic Documents" means the Receivables Purchase Agreement, the Agreement,
the Certificate of Trust, the Sale and Servicing Agreement, the Indenture, the
Yield Maintenance Agreement, the Administration Agreement, the Depository
Agreements and the other documents and certificates delivered in connection
herewith and therewith.
"Benefit Plan" shall have the meaning assigned to such term in Section
11.13.
"Book-Entry Certificate" and "Book-Entry Note" means, respectively, a
beneficial interest in the Certificates, or in Notes of any Class, as the case
may be, ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 3.12 and Section 2.11 of the Indenture.
"Business Trust Statute" means Chapter 38 of Title 12 of I the Delaware
Code, 12 Del. Code ss.3801 et seq., as the same may be amended from time to
time.
"Certificate" means a certificate evidencing a beneficial ownership
interest in the Trust, substantially in the form attached hereto as Exhibit A.
"Certificate Depository Agreement" means the agreement entitled "Letter of
Representations" dated on or before the Closing Date among the Clearing Agency,
the Trust and the Owner Trustee with respect to certain matters relating to the
duties thereof with respect to the Book-Entry Certificates, substantially in the
form attached hereto as Exhibit C.
"Certificate of Trust" means the Certificate of Trust to be filed with
respect to the formation of the Company pursuant to Section 3810(a) of the
Business Trust Statute, substantially in the form attached hereto as Exhibit B.
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"Certificate Owner" means, with respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate, as reflected
on the books and records of the Clearing Agency, or on the books and records 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) and shall mean, with respect
to a Definitive Certificate, the related Certificateholder.
"Certificate Register" means the register maintained pursuant to
Section 3.04.
"Certificateholder" or "Holder" means a Person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purposes
of giving certain consents, waivers, requests or demands pursuant to this
Agreement, the interest evidenced by any Certificate registered in the name of
TMCRC or TMCC, or any Person actually known to a Responsible Officer of the
Trustee to be controlling, controlled by or under common control with TMCRC or
TMCC, shall not be taken into account in determining whether the requisite
percentage necessary to effect any such consent, waiver, request or demand shall
have been obtained.
"Certificate Registrar" means the Owner Trustee unless and until a
successor thereto is appointed pursuant to Section 3.04. The Certificate
Registrar initially designates its offices at -, as its offices for purposes of
Section 3.04.
"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.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"Corporate Trust Office" means, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at o; or at such
other address as the Owner Trustee may designate by notice to the Owners, or the
principal corporate trust office of any successor Owner Trustee (the address of
which the successor owner trustee will notify the Owners).
"Definitive Certificates" shall have the meaning set forth in Section
3.12.
"Depositor" means TMCRC in its capacity as Depositor hereunder.
"Depository Agreements" means the agreement or agreements dated on or
before the Closing Date among the Trust, as issuer of the Certificates and the
Notes, the Owner Trustee, the Indenture Trustee and the Clearing Agency through
which interests in Book-Entry Certificates or Book-Entry Notes are transferred.
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"Expenses" shall have the meaning assigned to such term in Section 8.02.
"Indenture" means any indenture entered into between the Trust and the
Indenture Trustee named therein pursuant to which a series of Notes is issued.
"Initial Certificate Balance" means $-.
"Notes" means the notes issued by the Trust pursuant to an Indenture
between the Trust and an Indenture Trustee, dated on or after the date hereof,
having the payment and other terms set forth in such Indenture.
"Owner Trust Estate" means all right, title and interest of the Trust in
and to the property and rights assigned to the Trust pursuant to Article II of
the Sale and servicing Agreement, all funds on deposit from time to time in the
Trust Accounts and all other property of the Trust from time to time, including
any rights of the Owner Trustee and the Trust pursuant to the Sale and Servicing
Agreement and the Administration Agreement.
"Owner Trustee" means -, a [Delaware banking corporation], not in its
individual capacity but solely as owner trustee under this Agreement, and any
successor Owner Trustee hereunder.
"Pass Through Rate" means -% per annum.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 3.09, and shall initially be -.
"Receivables Purchase Agreement" means that certain Receivables Purchase
Agreement, dated as of the Cutoff Date, between TMCC, as Seller, and TMCRC, as
Purchaser of the Receivables.
"Record Date" means, with respect to any Distribution Date, the calendar
day immediately preceding such Distribution Date or, if Definitive Certificates
have been issued, the last day of the month immediately preceding the month in
which such Distribution Date occurs. Any amount stated "as of a Record Date" or
"on a Record Date" shall give effect to (i) all applications of collections, and
(ii) all distributions to any party under this Agreement, the Sale and Servicing
Agreement or the Indenture, or to the related Obligor, as the case may be, in
each case as determined as of the opening of business on the related Record
Date.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
dated as of the date hereof, among the Trust, TMCRC, as seller, and TMCC, as
servicer.
"Secretary of State" means the Secretary of State of the State of
[Delaware].
"TMCC" means Toyota Motor Credit Corporation, a California corporation,
its successors and assigns.
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"TMCRC" means Toyota Motor Credit Receivables Corporation, a California
corporation, its successors and assigns.
"Treasury Regulations" means regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" means the Toyota Auto Receivables 199_-_ Owner Trust, formed as a
[Delaware] business trust pursuant to this Agreement and the filing of the
Certificate of Trust.
["Yield Maintenance Agreement" means the Yield Maintenance Agreement
dated as of - among [third party,][TMCC,] the Depositor and the Trust.]
1.02 Usage of Terms. With respect to all terms in this Agreement, the
singular includes the plural and the plural the singular; words importing any
gender include the other genders; references to "writing" include printing,
typing, lithography and other means of reproducing words in a visible form;
references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the term "including"
means "including without limitation."
ARTICLE II
Creation of Trust
2.01 Creation of Trust. Upon the execution of this Agreement by the
parties hereto and the prompt filing thereafter of the Certificate of Trust,
there is hereby created the "Toyota Auto Receivables 199_-_ Owner Trust", in
which name the Owner Trustee may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust and xxx and be
sued.
2.02 Office. The office of the Trust shall be in care of the Owner Trustee
at the Corporate Trust Office or at such other address in [Delaware] as the
Owner Trustee may designate by written notice to the Certificateholders and the
Depositor.
2.03 Purposes and Powers.
(a) The purpose of the Trust is to engage in the following activities:
(i) to issue Notes pursuant to an Indenture and Certificates
pursuant to this Agreement and to sell such Notes and Certificates;
(ii) with the proceeds of the sale of Notes and Certificates, to
make the Reserve Fund Initial Deposit and the Yield Maintenance Account
Initial Deposit (each as defined
4
in the Sale and Servicing Agreement), to pay the organizational, start-up
and transactional expenses of the Trust and to pay the balance to the
Depositor pursuant to the Sale and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to, and on the terms and conditions set forth in,
the Indenture and to hold, manage and distribute to the Certificateholders
pursuant to the terms of the Sale and Servicing Agreement any portion of
the Trust Estate released from the Lien of, and remitted to the Trust
pursuant to, the Indenture as set forth herein;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation
of the Owner Trust Estate and the making of distributions to the Owners
and the Noteholders and in respect of amounts to be released to the
Depositor, the Servicer, the Administrator or [and third party, if any].
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing and as required or authorized by the terms of the Basic Documents.
2.04 Appointment of Owner Trustee. The Depositor hereby appoints the Owner
Trustee as trustee of the Trust effective as of the date hereof, to have all the
rights, powers and duties set forth herein.
2.05 Initial Capital Contribution of Owner Trust Estate. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, as
of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges receipt
in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate and shall be
deposited in the Collection Account. The Depositor shall pay organizational
expenses of the Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the
Owner Trustee.
2.06 Declaration of Trust. The Owner Trustee hereby declares that it will
hold the Owner Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Owners, subject to the obligations
of the Trust under the Basic Documents. It is the intention of the parties
hereto that the Trust constitute a business trust under the Business Trust
Statute and that this Agreement constitute the governing instrument of such
business trust. It is the intention of the parties hereto that, solely for
income and franchise tax purposes, the Trust shall be treated as a partnership,
with the assets of the partnership being the Receivables and other assets held
by
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the Trust, the partners of the partnership being the Certificateholders and the
Depositor (as recipient of distributions from the Reserve Fund and the Yield
Maintenance Account without regard to whether the Depositor is also a
Certificateholder), and the Notes being debt of the partnership. The parties
agree that, unless otherwise required by appropriate tax authorities, the Trust
will file or cause to be filed annual or other necessary returns, reports and
other forms consistent with the characterization of the Trust as a partnership
for such tax purposes. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein and in the Business Trust
Statute with respect to accomplishing the purposes of the Trust.
2.07 Liability of the Certificateholders, Depositor and TMCC.
(a) The Depositor and TMCC shall be liable directly to and will indemnify
and hold harmless the Trustee and the Indenture Trustee for any loss, liability
or expense of the Trust (including Expenses, to the extent not paid out of the
owner Trust Estate) to the extent that the Company would be liable if the Trust
were a partnership under the [Delaware] Revised Uniform Limited Partnership Act
in which the Company were a general partner; provided, however, that the
Depositor and TMCC shall not be liable for any losses incurred by a
Certificateholder in the capacity of an investor in the Certificates or a
Noteholder in the capacity of an investor in the Notes and will not and shall
not be deemed hereby to have indemnified the Trustee or Indenture Trustee
against any loss liability or expense resulting from such Trustee's own willful
misfeasance, bad faith or negligence or by reason of a breach of representation
or warranty thereof contained herein or in the Indenture, as the case may be. In
addition, any third party creditors of the Trust (other than in connection with
the obligations described in the provisions in the preceding sentence for which
the Company shall not be liable) shall be deemed to be third party beneficiaries
of this paragraph. The obligations of the Depositor and TMCC under this
paragraph shall be evidenced by the Certificates described in Section 3.10,
which for purposes of the Business Trust Statute shall be deemed to be a
separate class of Certificates from all other Certificates issued by the Trust;
provided, that the rights and obligations evidenced by all Certificates,
regardless of class, shall, except as provided in this Section, and except with
respect to the release to the Depositor of certain amount from the Reserve Fund
and the Yield Maintenance Account, be identical.
(b) Except to the extent set forth in paragraph (a), no Certificateholder
shall have any personal liability for any liability or obligation of the Trust.
2.08 Title to Trust Property. Legal title to all the Owner Trust Estate
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Owner
Trust Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
2.09 Situs of Trust. The Trust will be located and administered in the
state of [Delaware]. All bank accounts maintained by the Owner Trustee on behalf
of the Trust shall be located in the State of [Delaware] or the State of New
York. The Trust shall not have any employees in any state other than [Delaware];
provided, however, that nothing herein shall restrict or prohibit the
6
Owner Trustee from having employees within or without the State of [Delaware].
Payments will be received by the Trust only in [Delaware] or New York, and
payments will be made by the Trust only from [Delaware] or [New York]. The only
office of the Trust will be at the Corporate Trust Office in [Delaware].
2.10 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to the Owner Trustee
that:
(i) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of California,
with corporate power and authority to own its properties and to conduct
its business as such properties are currently owned and such business is
presently conducted, and has corporate power, authority and legal right to
acquire, own and sell property including the Receivables.
(ii) The Depositor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such qualifications.
(iii) The Depositor has the corporate power and authority to execute
and deliver this Agreement and to carry out its terms; the Depositor has
full corporate power and authority to sell and assign the property to be
sold and assigned to and deposited with the Trust and the Depositor has
duly authorized such sale and assignment and deposit to the Trust by all
necessary corporate action; and the execution, delivery and performance of
this Agreement has been duly authorized by the Depositor by all necessary
corporate action.
(iv) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or bylaws of the Depositor, or any indenture, agreement or
other instrument to which the Depositor is a party or by which it is
bound, nor result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture agreement or
other instrument (other than pursuant to the Basic Documents); nor violate
any law or, to the best of the Depositor's knowledge, any order, rule or
regulation applicable to the Depositor of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties
which breach, default, conflict, lien or violation would have a material
adverse effect on the earnings, business affairs or business prospects of
the Depositor.
(v) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or to the
Depositor's knowledge, threatened, against or affecting the Depositor: (i)
asserting the invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions
7
contemplated by this Agreement, (iii) seeking any determination or ruling
that might materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability of,
this Agreement or (iv) relating to the Depositor and which might adversely
affect the federal income tax attributes of the Trust or the Certificates
or Notes.
2.11 Federal Income Tax Allocations. Net income of the Trust for any month
as determined tor Federal income tax purposes (and each item of income, gain,
loss and deduction entering into the computation thereof) shall be allocated:
(a) among the Certificate Owners as of the first Distribution Date
following the end of such month, in proportion to their ownership of principal
amount of Certificates on such date, an amount of net income up to the sum of
(i) the Certificateholders, Interest Distributable Amount for such month, (ii)
interest on the Certificateholders' Interest Carryover Shortfall for such
Distribution Date, to the extent permitted by law, at the Pass Through Rate from
the preceding Distribution Date through the current Distribution Date, and (iii)
any amount expected to be distributed to the Certificateholders pursuant to
Section 5.07(g) of the Sale and Servicing Agreement (to the extent not
previously allocated pursuant to this clause); and
(b) to the Depositor, to the extent of any remaining net income.
If the net income of the Trust for any month is insufficient for the allocations
described in clause (a) above, subsequent net income shall first be allocated to
make up such shortfall before being allocated as provided in the preceding
sentence. Net losses of the Trust, if any, for any month as determined for
Federal income tax purposes (and each item of income, gain, loss and deduction
entering into the computation thereof) shall be allocated to the Depositor to
the extent the Depositor has agreed hereunder and under the Sale and Servicing
Agreement and the Indenture to bear the economic burden of such net losses, and
any remaining net losses shall be allocated among the Certificate Owners as of
the first Distribution Date following the end of such month in proportion to
their ownership of principal amount of Certificates as of the close of business
on such Distribution Date. The Depositor is authorized to modify the allocations
in this paragraph if necessary or appropriate, in its sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the Depositor
or to the Certificate Owners, or as otherwise required by the Code.
ARTICLE III
Certificates and Transfer of Interests
3.01 Initial Ownership. Upon the formation of the Trust by the transfer by
the Depositor of the initial capital contribution pursuant to Section 2.05, and
until the issuance of the Certificates, the Depositor shall be the sole Owner of
the Trust.
3.02 The Certificates. The Certificates shall be issued in minimum
denominations of $_____ and in integral multiples of $______ in excess thereof;
provided, however, one
8
Certificate issued to the Depositor pursuant to Section 3.10 may be issued in an
irregular denomination that includes any residual amount. The Certificates shall
be executed on behalf of the Trust by manual or facsimile signature of a
Responsible Officer of the Owner Trustee and authenticated on behalf of the
Owner Trustee by the manual or facsimile signature of a Responsible Officer.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be valid and binding obligations of the Trust,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such
Certificates. All Certificates shall be dated the date of their authentication.
A transferee of a Certificate shall become a Certificateholder, and shall
be entitled to the rights and subject to the obligations of a Certificateholder
hereunder, upon such transferee's acceptance of a Certificate duly registered in
such transferee's name pursuant to Section 3.04.
3.03 Authentication of Certificates. Concurrently with the initial sale of
the Receivables to the Trust pursuant to the Sale and Servicing Agreement, the
Owner Trustee shall cause to be executed, authenticated and delivered on behalf
of the Trust to or upon the written order of the Depositor Certificates in an
aggregate principal amount equal to the Initial Certificate Balance and
evidencing the entire ownership of the Trust. No Certificate shall entitle its
holder to any benefit under this Agreement or be valid for any purpose, unless
there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Owner Trustee
or -, as the Owner Trustee's authenticating agent, by manual or facsimile
signature of a Responsible Officer, and such authentication shall constitute
conclusive evidence, and the only evidence, that such Certificate shall have
been duly authenticated and delivered hereunder. All Certificates shall be dated
the date of their authentication.
3.04 Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.08, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. [The Owner Trustee] [o] shall be
the initial Certificate Registrar. In the event that the Certificate Registrar
shall for any reason become unable to act as Certificate Registrar, the
Certificate Registrar shall promptly give written notice to such effect to the
Depositor, the Owner Trustee and the Servicer. Upon receipt of such notice, the
Servicer shall appoint another bank or trust company, having an office or agency
located in the [Borough of Manhattan], The City of New York, and that shall
agree to act in accordance with the provisions of this Agreement applicable to
it, and otherwise acceptable to the Owner Trustee, to act as successor
Certificate Registrar under this Agreement.
(b) Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.08, the Owner Trustee shall
execute, authenticate and deliver (or shall cause - as its authenticating agent
to authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of
9
a like aggregate amount dated the date of authentication by the Owner Trustee or
any authenticating agent. At the option of a Holder, Certificates may be
exchanged for other Certificates of authorized denominations of a like aggregate
amount upon surrender of the Certificates to be exchanged at the office or
agency maintained pursuant to Section 3.08. The preceding provisions of this
Section notwithstanding, the Owner Trustee shall not make and the Certificate
Registrar shall not register transfer or exchanges of Certificates for a period
of 15 days preceding the due date for any payment with respect to the
Certificates.
(c) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
cancelled disposed of by the Owner Trustee in accordance with its customary
practice.
No transfer of a Certificate shall be made unless the Owner Trustee shall
have received a representation from the transferee of such Certificate
acceptable to and in form and substance satisfactory to the Owner Trustee (in
the event such Certificate is a Definitive Certificate, such requirement will be
satisfied only by the Owner Trustee's receipt of a representation letter from
the transferee substantially in the form of Exhibit C) to the effect that:
(i) such transferee (A) is not an employee benefit plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section
4975 of the Code (a "Plan"), nor a person acting on behalf of a Plan nor
using the assets of a Plan to effect such transfer, and (B) is not an
insurance company purchasing a Certificate with funds contained in an
"insurance company general account" (as defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) as to which
there is a Plan with respect to which the amount of such general account's
reserves and liabilities for the contracts held by or on behalf of such
Plan and all other Plans maintained by the same employer (or affiliate
thereof as defined in Section V(a)(1) of PTCE 95-60) of by the same
employee organization exceed 10% of the total of all reserves and
liabilities of such general account (as such amounts are determined under
Section I(a) of PTCE 95-60) at the date of acquisition; or
(ii) is a Plan or is an insurance company purchasing a Certificate
with funds contained in an insurance company general account, having
attached thereto an opinion of counsel satisfactory to the Owner Trustee,
which opinion shall not be an expense of either the Owner Trustee or the
Trust, addressed to the Owner Trustee, to the effect that the purchase or
holding of such Certificate will not result in the assets of the Owner
Trust Estate being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not
subject the Owner Trustee to any obligation in addition to those expressly
undertaken in this Agreement or to any liability.
For purposes of the preceding sentence, with respect to a Certificate that is a
Book-Entry Certificate, in the event the Transferee Certificate is not
furnished, the representations contained in clause (i) above shall be deemed to
have been made to the Owner Trustee by the transferee's
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(including an initial acquiror's) acceptance of such Certificate.
Notwithstanding anything else to the contrary herein, any purported transfer of
a Certificate to or on behalf of an employee benefit plan subject to ERISA or to
the Code or to an insurance company purchasing with funds from a general account
not exempt pursuant to PTCE 95-60 without the delivery to the Owner Trustee of
an opinion of counsel satisfactory to the Owner Trustee as described in clause
(ii) above shall be void and of no effect.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Owner Trustee shall be under no liability to any Person for any
registration of transfer of any Certificate that is in fact not permitted by
this Section 3.04(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under the
provisions of this Trust Agreement or the Sale and Servicing Agreement so long
as the transfer was registered by the Certificate Registrar or the Owner Trustee
in accordance with the foregoing requirements.
(d) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
3.05 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate shall be surrendered to the Certificate Registrar, or if
the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a bona fide purchaser,
the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee, or
-, as the Owner Trustee's authenticating agent, shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and denomination. in connection
with the issuance of any new Certificate under this Section, the Owner Trustee
or the Certificate Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
3.06 Persons Deemed Owners. Prior to due presentation of a Certificate for
registration of transfer, the Owner Trustee or the Certificate Registrar may
treat the Person in whose name any Certificate shall be registered in the
Certificate Register as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 5.02 and for all other purposes
whatsoever, and neither the Owner Trustee nor the Certificate Registrar shall be
bound by any notice to the contrary.
3.07 Access to List of Certificateholders' Names and Addresses. The
Certificate Registrar Trustee shall furnish or cause to be furnished to the
Owner Trustee, the Servicer or the Depositor, as the case may be, within 15 days
after its receipt of a request therefor from the Owner Trustee,
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the Servicer or the Depositor in writing, a list, in such form as the Owner
Trustee, the Servicer or the Depositor may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. If three
or more Certificateholders or one or more Holders of Certificates evidencing, in
the aggregate, not less than 25% of the Certificate Balance apply in writing to
the Owner Trustee, and such application states that the applicants desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and such application is accompanied by
a copy of the communication that such applicants propose to transmit, then the
Owner Trustee shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Depositor,
the Servicer, the Certificate Registrar or the Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
3.08 Maintenance of Office or Agency. The Owner Trustee shall maintain in
the [Borough of Manhattan, The City of New York], an office or offices or agency
or agencies where Certificates may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Owner Trustee in
respect of the Certificates and the Basic Documents may be served. The Owner
Trustee initially designates -, [Address], as its principal corporate trust
office for such purposes. The Owner Trustee shall give prompt written notice to
the Depositor and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
3.09 Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Collection Account pursuant to
Section 5.02 and shall report the amounts of such distributions to the Owner
Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Collection Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Paying Agent if
the Owner Trustee determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be -, and any co-paying agent chosen
by -, and acceptable to the Owner Trustee. - shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Owner Trustee. In the event
that - shall no longer be the Paying Agent, the Owner Trustee shall appoint a
successor to act as Paying Agent (which shall be a bank or trust company). The
Owner Trustee shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Owner Trustee to execute and deliver to the Owner Trustee
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Owner Trustee that as Paying Agent, such successor Paying
Agent additional Paying Agent will hold all sums, if any, held by it for payment
to the Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders. The
Paying Agent shall return all unclaimed funds to the Owner Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Owner Trustee. The provisions of Sections 7.01, 7.03, 7.04 and
8.01 shall apply to the Owner Trustee also in its role as Paying Agent, for so
long as the Owner Trustee shall act as Paying Agent and, to the extent
applicable,
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to any other paying agent appointed hereunder. Any reference in this Agreement
to the Paying Agent shall include any co-paying agent unless the context
requires otherwise.
3.10 Ownership by the Depositor of Certificates. The Depositor shall on
the Closing Date purchase, and shall thereafter retain beneficial and record
ownership of, Certificates representing at least 1% of the Certificate Balance.
Any attempted transfer of any Certificate that would reduce such interest of the
Depositor below 1% of the Certificate Balance shall be void. The Owner Trustee
shall cause at least one Certificate issued to the Depositor (representing at
least 1% of the Certificate Balance) to bear a legend stating "THIS CERTIFICATE
IS NON-TRANSFERABLE".
3.11 Book-Entry Certificates. The Certificates, upon original issuance,
will be issued in the form of a typewritten Certificate or Certificates
representing Book-Entry Certificates, to be delivered to The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, the Trust; provided,
however, that one Definitive Certificate may be issued to the Depositor pursuant
to Section 3.10. Such Certificate or Certificates shall initially be registered
on the Certificate Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Certificate Owner will receive a Definitive
Certificate representing such Certificate Owner's interest in such Certificate,
except as provided in Section 3.13. Unless and until definitive, fully
registered Certificates (the "Definitive Certificates") have been issued to
Certificate Owners pursuant Section 3.13:
(a) the provisions of this Section shall be in full force and effect;
(b) the Depositor, the Servicer, the Administrator, Certificate Registrar
and the Owner Trustee shall be entitled to deal with the Clearing Agency for all
purposes of this Agreement (including the payment of principal of and interest
on the Certificates and the giving of instructions or directions hereunder) as
the authorized representative of the Certificate Owners;
(c) to the extent that the provisions of this section conflict with any
other provisions of this Agreement, the provisions of this Section shall
control;
(d) the rights of Certificate Owners shall be exercised only through the
Clearing Agency (or through procedures established by the Clearing Agency) and
shall be limited to those established by law and the agreements between the
Depositor, the Owner Trustee or such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.13, the initial Clearing Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit payments of principal of and interest on the Certificates
to such Clearing Agency Participants; and
(e) whenever this Agreement requires or permits actions to be taken based
upon instructions or directions of Holders of Certificates evidencing a
specified percentage of the Certificate Balance, the Clearing Agency shall be
deemed to represent such percentage only to the extent that it has received
instructions to such effect from Certificate owners and/or Clearing
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Agency Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Certificates and has delivered such
instructions to the Owner Trustee.
3.12 Notices to Clearing Agency. Whenever a notice or other communication
to the Certificateholders is required under this Agreement, unless and until
Definitive Certificates shall have been issued to Certificate owners pursuant to
Section 3.13, the Owner Trustee shall give all such notices and communications
specified herein to be given to Certificateholders to the Clearing Agency, and
shall have no obligations to the Certificate Owners.
3.13 Definitive Certificates. If (i) the Depositor or the Administrator
advises the Owner Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Certificates, and the Depository or the Administrator is unable to locate a
qualified successor, (ii) the Depositor or the Administrator at its option
advises the Owner Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency or (iii) after the occurrence of an Event of
Default or a Servicer Default, Certificate Owners representing beneficial
interests aggregating at least 51% of the Certificate Balance advise the
Clearing Agency and the Owner Trustee through the Clearing Agency in writing
that the continuation of a book-entry system through the Clearing Agency is no
longer in the best interest of the Certificate Owners, then the Clearing Agency
shall notify all Certificate Owners and the Owner Trustee of the occurrence of
any such event and of the availability of the Definitive Certificates to
Certificate Owners requesting the same. Upon surrender to the Owner Trustee of
the typewritten Certificate or Certificates representing the Book-Entry
Certificates by the Clearing Agency accompanied by registration instructions,
the Owner Trustee shall execute and authenticate the related temporary
Certificates or Definitive Certificates in accordance with the instructions of
the Clearing Agency. Neither the Certificate Registrar nor the Owner Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates, Depositor, the Servicer, the
Administrator and the Owner Trustee shall recognize the Holders of the
Definitive Certificates as Certificateholders. The Definitive Certificates shall
be printed, lithographed or engraved or may be produced in any other manner as
is reasonably acceptable to the Owner Trustee, as evidenced by its execution
thereof. The Owner Trustee and Administrator shall have no liability if they are
unable to locate a qualified successor Clearing Agency.
3.14 Temporary Certificates. Pending the preparation of Definitive
Certificates, the Owner Trustee, on behalf of the Trust, may execute,
authenticate and deliver, temporary Certificates, printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Certificates in lieu of which they
are issued. If temporary Certificates are issued, the Depositor will cause
Definitive Certificates to be prepared without unreasonable delay. After the
preparation of Definitive Certificates, the temporary Certificates shall be
exchangeable for Definitive Certificates upon surrender thereof at the office or
agency to be maintained as provided in Section 3.08, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Owner Trustee on behalf of the Trust shall execute,
authenticate and deliver in exchange therefor a like principal amount of
Definitive Certificates in authorized denominations. Until so
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exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as the related Definitive Certificates.
ARTICLE IV
Actions By Owner Trustee or Owners
4.01 Prior Notice to Owners with Respect to Certain Matters. With respect
to the following matters, the Owner Trustee shall not take action unless at
least 30 days before the taking of such action, the Owner Trustee shall have
notified the Certificateholders in writing of the proposed action and the Owners
shall not have notified the Owner Trustee in writing prior to the 30th day after
such notice is given that such Owners have withheld consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or
lawsuits brought in connection with the collection of the Receivables) and the
compromise of any action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for collection of
the Receivables);
(b) the election by the Trust to file an amendment, to the Certificate of
Trust (unless such amendment is required to be filed under the Business Trust
Statute);
(c) the amendment of the Indenture, whether or not by a Supplemental
Indenture, in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture, whether or not by a Supplemental
Indenture, in circumstances where the consent of any Noteholder is not required
but such amendment materially adversely affects the interest of the Owners;
(e) the amendment, change or modification of the Administration Agreement,
other than to cure any ambiguity or to amend or supplement any provision in a
manner or add any provision that would not materially adversely affect the
interests of the Owners; or
(f) the appointment (i) pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee, (ii) pursuant to this Agreement of
a successor Certificate Registrar or (iii) any consent by the Note Registrar,
Paying Agent or Indenture Trustee or Certificate Registrar to the assignment of
its respective obligations under the Indenture or this Agreement, as applicable.
4.02 Action by Owners with Respect to Certain Matters. The Owner Trustee
shall not have the power, except upon the direction of the Owners, to (a) remove
the Administrator pursuant to Section 8 of the Administration Agreement, (b)
appoint a successor Administrator pursuant to Section 8 of the Administration
Agreement, (c) remove the Servicer pursuant to Section 8.01 of the Sale and
Servicing Agreement or (d) except as expressly provided in the Basic Documents,
sell the Receivables after the termination of the Indenture. The Owner Trustee
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shall take the actions referred to in the preceding sentence only upon written
instructions signed by the authorized representative of 100% of the Owners
(excluding for such purposes Certificates owned by TMCRC, TMCC or any of their
affiliates).
4.03 Action with Respect to Bankruptcy. The Owner Trustee shall not have
the power to commence a voluntary proceeding in bankruptcy relating to the Trust
without the unanimous prior approval of all Owners and the delivery to the Owner
Trustee by each such Owner of a certificate certifying that such Owner
reasonably believes that the Trust is insolvent.
4.04 Restrictions on Owners' Power. The Owners shall not direct the Owner
Trustee to take or refrain from taking any action if such action or inaction
would be contrary to any obligations of the Trust or of the Owner Trustee under
any of the Basic Documents or would be contrary to Section 2.03 nor shall the
Owner Trustee be obligated to follow any such direction, if given.
4.05 Majority Control. Except as otherwise expressly provided herein, any
action that may be taken by the Owners under this Agreement may be taken by the
Holders of Certificates evidencing not less than 51% of the Certificate Balance.
Except as expressly provided herein, any written notice of the Owners delivered
pursuant to this Agreement shall be effective if signed by Holders of
Certificates evidencing not less than 51% of the Certificate Balance at the time
of the delivery of such notice.
ARTICLE V
Application of Trust Funds; Certain Duties
5.01 Establishment of Collection Account.
(a) The Owner Trustee, for the benefit of the Certificateholders, shall
establish and maintain, or shall cause to be established and maintained, in the
name of the Trust Eligible Deposit Accounts (the "Trust Accounts"), bearing a
designation clearly indicating that the funds deposited therein are held by the
Trust for the benefit of the Certificateholders, in each case in accordance with
Section 4.01 in the Sale and Servicing Agreement.
Subject to Section 5.01(b), the Owner Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the Trust
Accounts and in all proceeds thereof. Except as otherwise expressly provided
herein, each Trust Account shall be under the sole dominion and control of the
Owner Trustee for the benefit of the Certificateholders. If, at any time, a
Trust Account ceases to be an Eligible Deposit Account, the Owner Trustee (or
the Administrator on behalf of the Owner Trustee, if the Collection Account is
not then held by the Owner Trustee or an affiliate thereof) shall within 10
Business Days (or such longer period, not to exceed 30 calendar days, as to
which each Rating Agency may consent) establish a new equivalent Trust Account
as an Eligible Deposit Account and shall transfer any cash and/or any
investments to such new Trust Account.
16
(b) Concurrently with, the execution and delivery of any Indenture
pursuant to which a series of Notes is issued, the Owner Trustee shall establish
and maintain, or shall cause to be established and maintained, at the direction
of the Depositor, new Trust Accounts in the name of and under the control of the
related Indenture Trustee for the benefit of the Securityholders, in each case
in accordance with Section 4.01 of the Sale and Servicing Agreement. The Owner
Trustee shall thereupon promptly transfer any cash and/or investments then on
deposit in the equivalent Trust Accounts maintained by it pursuant to Section
5.01(a) to the newly established Trust Accounts on the terms and conditions set
forth in such Indenture. The Indenture Trustee will be obligated to transfer
back to the equivalent Trust Accounts established pursuant to Section 5.01(a)
all funds or investments held or to be held in the Trust Accounts established
pursuant to this Section 5.01(b) on the Distribution Date on which the Notes of
all Classes have been paid in full or the Indenture is otherwise terminated
(excluding any amounts to be retained for distribution in respect of Notes that
are not promptly delivered for payment on such Distribution Date), and to take
all necessary or appropriate actions to transfer all right, title and interest
of the Indenture Trustee in such funds or investments and all proceeds thereof,,
to the Owner Trustee for the benefit of the Certificateholders.
5.02 Application of Amounts in Trust Accounts.
(a) For so long as any Notes are outstanding, on each Distribution Date,
the Owner Trustee will take reasonable steps to determine that the Servicer has
properly delivered the Servicer's Certificate identifying how amounts on deposit
in the Trust Accounts are to be allocated and distributed and will instruct the
Indenture Trustee, or cause the Indenture Trustee to be instructed, to
distribute to Certificateholders, on a pro rata basis, the amounts distributable
thereto pursuant to Sections 5.06 and 5.07 of the Sale and Servicing Agreement
and Section 3.01 of the Indenture. From and after the date on which the Notes of
all Classes have been paid in full, on each Distribution Date the Owner Trustee
shall distribute to Certificateholders, on a pro rata basis, amounts on deposit
in the Collection Account that are distributable in respect of interest or
principal on the Certificates in accordance with the instructions of the
Servicer pursuant to Sections 5.06 and 5.07 of the Sale and Servicing Agreement.
Upon the release from the Lien of the Indenture of amounts on deposit in any of
the Trust Accounts or any other portion of the Owner Trust Estate, the Owner
Trustee will cause such property to be properly deposited into Trust Accounts
under the control of the Owner Trustee or distributed to the Certificate Owners
on a pro rata basis in accordance with the provisions of this Agreement, as the
case may be; provided, however, that the Owner Trustee will distribute amounts
released from the Reserve Fund or Yield Maintenance Account as amounts in excess
of the Required Reserve Fund Balance or the Yield Maintenance Required Amount,
as the case may be, solely to the Depositor, and thereafter neither the Trust,
the Owner Trustee, the Indenture Trustee, the Servicer, the Administrator or any
Securityholder will have any right, title, interest or claim in or to such
property.
(b) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 5.09(a) of the Sale and Servicing Agreement with respect to
such Distribution Date.
17
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to an owner, such tax shall reduce the amount
otherwise distributable to the Owner in accordance with this Section. The Owner
Trustee is hereby authorized and directed to retain from amounts otherwise
distributable to the Owners sufficient funds for the payment of any tax that is
legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to an Owner
shall be treated as cash distributed to such Owner 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. Owner), the Owner Trustee may in its
sole discretion withhold such amounts in accordance with this paragraph (c). In
the event that an Owner wishes to apply for a refund of any such withholding
tax, the Owner Trustee shall reasonably cooperate with such owner in making such
claim so long as such Owner agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
5.03 Method of Payment. Subject to Section 9.01(c), distributions required
to be made to Certificateholders on any Distribution Date shall be made to each
Certificateholder of record on the related Record Date either by check mailed to
such Certificateholder at the address of such holder appearing in the
Certificate Register or by wire transfer, in immediately available funds, to the
account of any Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five Business
Days prior to such Distribution Date and such Holder's Certificates in the
aggregate evidence a denomination of not less than $1,000,000.
5.04 Accounting and Reports to the Noteholders, Owners, the Internal
Revenue Service and Others. The Owner Trustee shall (a) maintain (or cause to be
maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, (b) deliver to each Owner, as may be required by the Code
and applicable Treasury Regulations, such information as may be required
(including Schedule K-1) to enable each Owner to prepare its federal and state
income tax returns, (c) file such tax relating to the Trust (including a
partnership information return, IRS Form 1065), and make such elections as may
from time to time be required or appropriate under any applicable state or
federal statute or rule or regulation thereunder so as to maintain the Trust's
characterization as a partnership for federal income tax purposes, (d) cause
such tax returns to be signed in the manner required by law and (e) collect or
cause to be collected any withholding tax as described in and in accordance with
Section 5.02(c) with respect to income or distributions to Owners. The Owner
Trustee shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the Receivables. The
Owner Trustee shall not make the election provided under Section 754 of the
Code.
5.05 Signature on Returns; Tax Matter Partner.
(a) The Owner Trustee shall sign on behalf of the Trust the tax returns of
the Trust, unless applicable law requires an Owner to sign such documents, in
which case such documents shall be signed by the Company.
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(b) The Company shall be designated the "tax matters partner" of the Trust
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
ARTICLE VI
Authority and Duties of Owner Trustee
6.01 General Authority. The Owner Trustee is authorized and directed to
execute and deliver the Basic Documents to which the Trust is to be a party and
each certificate or other document attached as an exhibit to or contemplated by
the Basic Documents to which the Trust is to be a party and any amendment or
other agreement or instrument described in Sections 3.11, 3.13, 3.15, 4.01 and
4.02 and, on behalf of the Trust, to direct the Indenture Trustee to
authenticate and deliver Class A-1 Notes in the aggregate principal amount of $-
, Class A-2 Notes in the aggregate principal amount of $-, and Class A-3 Notes
in the aggregate principal amount of $- having the terms and conditions set
forth in Exhibits X-0, X-0 and A-3 to the Indenture in the form executed on the
Closing Date. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, to take all actions required of the Trust, pursuant to
the Basic Documents. The Owner Trustee is further authorized from time to time
to take such action as the Administrator recommends with respect to the Basic
Documents.
6.02 General Duties. It shall be the duty of the Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the Basic Documents to which the Trust is a
party and to administer the Trust in the interest of the Owners, subject to the
Basic Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be held
liable for the default or failure of the Administrator to carry out such
obligations or fulfill such duties under the Administration Agreement.
6.03 Action Upon Instruction.
(a) Subject to Article IV and in accordance with the terms of the Basic
Documents, the Owners may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by written
instruction of the Owners pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action hereunder
or under any Basic Document if the Owner Trustee reasonably shall have
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee or is contrary to the terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or under
any Basic Document, the
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Owner Trustee shall promptly give notice (in such form as shall be appropriate
under the circumstances) to the owners requesting instruction as to the course
of action to be adopted, and to the extent the Owner Trustee acts in good faith
in accordance with any written instruction received from Owners representing the
plurality based on outstanding denominations of Certificates held by Owners
responding (but excluding in any case where inconsistent instructions are
forwarded by different Owners, the denominations of Certificates held by TMCC,
TMCRC or any of their Affiliates), the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with the Basic Documents,
as it shall deem to be in the best interests of the Owners, and shall have no
liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the application of
any provision of this Agreement or any Basic Document or any such provision is
ambiguous as to its application, or is, or appears to be in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Owners requesting
instruction and, to the extent that the Owner Trustee acts or refrains from
acting in good faith in accordance with any written instruction received from
Owners representing the plurality based on outstanding denominations of
Certificates held by Owners responding (but excluding in any case where
inconsistent instructions are forwarded by different Owners, the denominations
of Certificates held by TMCC, TMCRC or any of their Affiliates), the Owner
Trustee shall not be liable, on account of such action or inaction, to any
Person. If the Owner Trustee shall not have received appropriate instruction
within 10 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with the Basic Documents, as it shall deem
to be in the best interests of the Owners, and shall have no liability to any
Person for such action or inaction.
6.04 No Duties Except as Specified in this Agreement or in Instructions.
The Owner Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise deal
with the Owner Trust Estate, or to otherwise take or refrain from taking any
action under, or in connection with, any Basic Document or otherwise
contemplated hereby to which the Owner Trustee is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to section 6.03. No implied
duties or obligations shall be read into this Agreement or any Basic Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or otherwise to perfect or maintain the perfection of any security interest or
lien granted to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any Basic
Document. The Owner Trustee nevertheless agrees that
20
it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any liens on any part of the Owner Trust Estate that
result from actions by, or claims against, the Owner Trustee that are not
related to the ownership or the administration of the Owner Trust Estate.
6.05 No Action Except Under Specified Documents or Instructions. The Owner
Trustee shall not manage, control, use, sell, dispose of or otherwise deal with
any part of the Owner Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) in accordance with the Basic Documents and (iii) in accordance
with any document or instruction delivered to the Owner Trustee pursuant to
Section 6.03.
6.06 Restrictions. The Owner Trustee shall not take any action (a) that is
inconsistent with the purposes of the Trust set forth in Section 2.03 or (b)
that, to the actual knowledge of the Owner Trustee, would result in the Trust's
becoming taxable as a corporation for Federal income tax purposes. The owners
shall not have the authority to and, by acceptance of an ownership interest in
any Certificate shall thereby be deemed to have covenanted not to, direct the
Owner Trustee to take action that would violate the provisions of this Section.
ARTICLE VII
Concerning the Owner Trustee
7.01 Acceptance of Trusts and Duties. The Owner Trustee accepts the trusts
hereby created and agrees to perform its duties hereunder with respect to such
trusts but only upon the terms of this Agreement. The Owner Trustee also agrees
to disburse all moneys actually received by it or under its control constituting
part of the Owner Trust Estate upon the terms of the Basic Documents and this
Agreement. The Owner Trustee shall not be answerable or accountable hereunder or
under any Basic Document under any circumstances, except (i) for its own willful
misconduct or negligence or (ii) in the case of the inaccuracy of any
representation or warranty of the Owner Trustee contained in Section 7.03 or
made by the Owner Trustee in any other agreement, document or certificate made
or delivered in connection with this Agreement or any Basic Document. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any reasonable error of
judgment made by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the
Administrator, as provided in the Administration Agreement, or the Owners, as
provided herein;
(c) no provision of this Agreement or any Basic Document shall require the
Owner Trustee to expend or risk funds or otherwise incur any financial liability
in the performance of any of its rights or powers hereunder or under any Basic
Document if the Owner Trustee shall
21
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of (i)
the validity or sufficiency of this Agreement, (ii) the due execution hereof by
the Depositor, (iii) the form, character, genuineness, sufficiency, value or
validity of any portion of the Owner Trust Estate or (iv) the validity or
sufficiency of the Basic Documents, other than the certificate of authentication
on the Certificates, and the Owner Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to any Owner, other than as
expressly provided for herein and in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct of
the Administrator, the Servicer, the Depositor or the Indenture Trustee under
any of the Basic Documents or otherwise, and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Trust under the Basic
Documents that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indenture or the
Servicer under the Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under or in relation to this Agreement or any Basic
Document or otherwise, at the request, order or direction of any of the Owners,
unless such Owners have offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Agreement or in any Basic
Document shall not be construed as a duty, and the Owner Trustee shall not be
answerable therefor other than for its negligence or willful misconduct in the
performance thereof.
7.02 Furnishing of Documents. The Owner Trustee shall furnish (a) to the
Owners promptly upon receipt of a written request therefor, duplicates or copies
of all reports, notices, requests, demands, certificates, financial statements
and any other instruments furnished to the Owner Trustee under the Basic
Documents and (b) to Noteholders promptly upon written request therefor, copies
of the Sale and Servicing Agreement, the Administration Agreement and the Trust
Agreement.
7.03 Representations and Warranties. The Owner Trustee hereby represents
and warrants to the Depositor and for the benefit of the Owners, that:
(a) It is a [banking corporation] duly organized and validly existing in
good standing under the laws of [the State of Delaware]. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement and each other Basic Document.
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(b) It has taken all corporate action necessary to authorize the execution
and delivery of this Agreement and each other Basic Document, and this Agreement
and each other Basic Document will be executed and delivered by one of its
officers duly authorized to execute and deliver this Agreement and each other
Basic Document on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement nor the
consummation by the Owner Trustee of the transactions contemplated hereby or
thereby nor compliance by it with any of the terms or provisions hereof or
thereof will contravene any federal or [Delaware] law, governmental rule or
regulation governing the [banking or trust] powers of the Owner Trustee or any
judgment or order binding on it, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be
bound.
7.04 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a Certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under the Basic Documents, the Owner
Trustee (i) may act directly or through its agents or attorneys pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents or attorneys if such agents
or attorneys shall have been selected by the Owner Trustee with reasonable care,
and (ii) may consult with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such persons and not contrary to this Agreement or any Basic Document.
7.05 Not Acting in Individual Capacity. Except as provided in this Article
VII, in accepting the trusts hereby created, - acts solely as Owner Trustee
hereunder and not in its individual capacity. All Persons having any claim
against the Owner Trustee by reason of the transactions contemplated by this
Agreement or any Basic Document shall look only to the Owner Trust Estate for
payment or satisfaction thereof.
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7.06 Owner Trustee Not Liable for Certificates or Receivables. The
recitals contained herein and in the Certificates (other than the signature of
the Owner Trustee and the certificate of authentication on the Certificates)
shall be taken as the statements of the Depositor and the Company, and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of any Basic Document
or of the Certificates (other than the signature of the Owner Trustee and the
certificate of authentication on the Certificates) or the Notes (other than the
signature of the Owner Trustee on the Notes), or of any Receivable or related
document. The Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Receivable, or the perfection and priority of any security interest created
by any Receivable in any Financed vehicle or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Owner
Trust Estate or the sufficiency to generate the payments to be distributed to
Certificateholders under this Agreement or the Noteholders under the Indenture,
including, without limitation: the existence, condition and ownership of any
Financed Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or of any
intervening assignment; the completeness of any Receivable; the performance or
enforcement of any Receivable; the compliance by the Depositor, the Company or
the Servicer with any warranty or representation made under any Basic Document
or in any related document or the accuracy of any such warranty or
representation or any action of the Administrator, the Indenture Trustee or the
Servicer or any subservicer taken in the name of the Owner Trustee.
7.07 Owner Trustee May Own Certificates and Notes. The Owner Trustee in
its individual or any other capacity may become the owner or pledgee of
Certificates or Notes and may deal with the Depositor, the Company, the
Administrator, the Indenture Trustee and the Servicer in banking transactions
with the same rights as it would have if it were not Owner Trustee.
7.08 [Pennsylvania Motor Vehicle Sales Finance Act Licenses. The Owner
Trustee, in its individual capacity, shall use its best efforts to maintain, and
the Owner Trustee, as Owner Trustee, shall cause the Trust to use its best
efforts to maintain, the effectiveness of all licenses required under the
Pennsylvania Motor vehicle Sales Finance Act in connection with this Agreement
and the Basic Documents and the transactions contemplated hereby and thereby
until such time as the Trust shall terminate in accordance with the terms
hereof.]
ARTICLE VIII
Compensation of Owner Trustee
8.01 Owner Trustee's Fees and Expenses. The Owner Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed
upon before the date hereof between the Company and the Owner Trustee, and the
Owner Trustee shall be entitled to be reimbursed by the Company for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, representatives,
24
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder.
8.02 Indemnification. The Depositor shall be liable as primary obligor
for, and shall indemnify the Owner Trustee and its successors, assigns, agents
and servants (collectively, the "Indemnified Parties") from and against, any and
all liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including the
reasonable fees and expenses of counsel) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any Indemnified Party in any way relating
to or arising out of the Basic Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action or inaction of the Owner
Trustee hereunder, except only that the Depositor shall not be liable for or
required to indemnify an Indemnified Party from and against Expenses arising or
resulting from any of the matters described in the third sentence of Section
7.01. The indemnities contained in this Section 8.03 shall survive the
resignation or termination of the Owner Trustee or the termination of this
Agreement. In the event of any claim, action or proceeding for which indemnity
is sought pursuant to this Section, the Owner Trustee's choice of legal counsel
shall be subject to the approval of the Depositor, which approval shall not be
unreasonably withheld.
8.03 Payments to the Owner Trustee. Any amounts paid to the Owner Trustee
pursuant to this Article VIII shall be deemed not to be a part of the Owner
Trust Estate immediately after such payment.
ARTICLE IX
Termination of Trust Agreement
9.01 Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust shall terminate
and be of no further force or effect, (i) upon the final distribution by the
Owner Trustee of all moneys or other property or proceeds of the Owner Trust
Estate in accordance with the terms, Article V of the Indenture and the Sale and
Servicing Agreement (including, but not limited to, any property and proceeds to
be deposited in the Collection Account pursuant to Sections 3.02, 4.07, 5.02,
5.04, 5.05 or 9.01 of the Sale and Servicing Agreement or to be released by the
Indenture Trustee from the Lien of the Indenture pursuant to Sections 3.01, 5.04
or 10.02 of the Indenture) or (ii) at the time provided in Section 9.02. The
bankruptcy, liquidation, dissolution, death or incapacity of any Owner, other
than the Company as described in Section 9.02, shall not (x) operate to
terminate this Agreement or the Trust, nor (y) entitle such Owner's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Owner Trust Estate nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor nor any
Owner shall be entitled to revoke or terminate the Trust.
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(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which the Certificateholders shall surrender their Certificates to the
Paying Agent for payment of the final distributions and cancellation, shall be
given by the Owner Trustee by to Certificateholders mailed within five Business
Days of receipt of notice of such termination from the Servicer given pursuant
to Section 9.01(c) of the Sale and Servicing Agreement, stating (i) the
Distribution Date upon or with respect to which final payment of the
Certificates shall be made upon presentation and surrender of the Certificates
at the office of the Paying Agent therein designated, (ii) the amount of any
such final payment and (iii) that payment to be made on such Distribution Date
will be made only upon presentation and surrender of the Certificates at the
office of the Paying Agent therein specified. The Owner Trustee shall give such
notice to the Certificate Registrar (if other than the Owner Trustee) and the
Paying Agent at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Paying Agent shall cause to
be distributed to Certificateholders amounts distributable on such Distribution
Date pursuant to Section 5.02.
In the event that one or more of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Any funds remaining in the Trust after
exhaustion of such remedies shall be distributed by the Owner Trustee to the
Depositor.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3820 of the Business Trust Statute.
9.02 Dissolution upon Bankruptcy of the Depositor. In the event that an
Insolvency shall occur with respect to the Depositor, this Agreement shall be
terminated in accordance with Section 9.01 90 days after the date of such
Insolvency Event, unless, before the end of such 90-day period, the Owner
Trustee shall have received written instructions from Certificateholders
representing at least 51% of the Certificate Balance (excluding for such
purposes the Certificate Balance of any Certificates beneficially owned by TMCC,
TMCRC or any of their affiliates), to the effect that each such party
disapproves of the liquidation of the Receivables and termination of the Trust.
Promptly after the occurrence of any Insolvency Event with respect to the
Depositor, (A) the Depositor shall give the Indenture Trustee and the Owner
Trustee written notice of such Insolvency Event, (B) the Owner Trustee shall,
upon the receipt of such written notice from the Depositor, give prompt written
notice to the Certificateholders and the Indenture Trustee, of the occurrence of
such event and (C) the Indenture Trustee shall, upon receipt of written notice
of such Insolvency Event from the Owner Trustee or the Depositor, give prompt
written notice to the Noteholders of the occurrence of such event; provided,
however, that any failure to give a notice required by this sentence shall not
prevent or delay, in any manner, a
26
termination of the Trust pursuant to the first sentence of this Section 9.02.
Upon a termination pursuant to this Section 9.02, the Owner Trustee shall direct
the Indenture Trustee promptly to sell the assets of the Trust (other than the
Trust Accounts and the Collection Account) in a commercially reasonable manner
and on commercially reasonable terms. The proceeds of such a sale of the assets
of the Trust shall be treated as collections under the Sale and Servicing
Agreement and deposited in the Collection Account and distributed pursuant to
the terms thereof.
ARTICLE X
Successor Owner Trustees and Additional Owner Trustees
10.01 Eligibility Requirements for Owner Trustee. The Owner Trustee shall
at all times be an entity satisfying the provisions of Section 3807(a) of the
Business Trust Statute authorized to exercise corporate powers, having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authorities, and having (or having a parent
which has) a rating of at least Baa3 by Xxxxx'x. If such entity shall publish
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section 10.01, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Owner Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.02.
10.02 Resignation or Removal of Owner Trustee. The Owner Trustee may at
any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Depositor, the Administrator and the Indenture
Trustee. Upon receiving such notice of resignation, the Administrator shall
promptly appoint a successor Owner Trustee by written instrument, in duplicate,
one copy of which shall be delivered to each of the resigning Owner Trustee and
the successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed or shall not have accepted such appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.01 and shall fail to resign promptly, or if at
any time the Owner Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Owner Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the
Owner Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Owner Trustee
by written instrument to such effect delivered to the Owner Trustee, the
Depositor and the Indenture Trustee. If the Administrator shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the
Administrator shall promptly appoint a successor Owner Trustee by written
instrument in duplicate, one copy of which instrument shall be delivered to
27
each of the outgoing Owner Trustee so removed the successor Owner Trustee and
payment of all fees, expenses and other compensation owed to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
10.03 Successor Owner Trustee. Any successor Owner Trustee appointed
pursuant to Section 10.02 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Administrator and the predecessor Owner Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
meet the criteria for eligibility set forth in Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Administrator fails to mail such notice within 10
days after acceptance of appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
10.04 Merger or Consolidation of Owner Trustee. Any corporation into which
the Owner Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such corporation shall be eligible pursuant to Section 10.01, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided,
further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
10.05 Appointment of Co-Trustee or Separate Trustee. Notwithstanding any
other provisions of this Agreement, at any time, for the purpose of meeting any
legal requirements of
28
any jurisdiction in which any part of the Owner Trust Estate or any Financed
Vehicle may at the time be located, the Administrator and the Owner Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Owner Trustee to act
as co-trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Owner Trustee may
consider necessary or desirable. If the Administrator shall not have joined in
such appointment within 25 days after the receipt by it of a request so to do,
the Owner Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to Section 10.01 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provision and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not
authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties, and obligations (including the holding of
title to the Trust or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as if given to each of them. Every instrument any separate trustee or co-trustee
shall refer Agreement and the conditions of this Article. Each separate trustee
and co-trustee, upon its acceptance of conferred, shall be vested with the
estates or specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited. by law, to do any
29
lawful act under or in respect, of this Agreement on its behalf and in its name.
If any separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Owner Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
ARTICLE XI
Miscellaneous
11.01 Supplements and Amendments. This Agreement may be amended by the
Depositor, the Company and the Owner Trustee, with prior written notice to the
Rating Agencies, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement or
of modifying in any manner the rights of the Noteholders or the
Certificateholders provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests
of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Depositor and
the Owner Trustee, with prior written notice to the Rating Agencies, with the
consent of the Holders of Notes evidencing not less than 51% of the Outstanding
Amount of the Notes and the consent of the Holders of Certificates evidencing
not less than a majority of the Certificate Balance, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made for the benefit of the Noteholders or the Certificateholders
or (b) reduce the aforesaid percentage of the Outstanding Amount of the Notes
and the Certificate Balance required to consent to any such amendment, without
the consent of the holders of all the outstanding Notes and Certificates.
Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Indenture Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State.
30
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
11.02 No Legal Title to Owner Trust Estate in Owners. The Owners shall not
have legal title to any part of the Owner Trust Estate. The Owners shall be
entitled to receive distributions with respect to their undivided ownership
interest therein only in accordance with Articles V and IX. No transfer, by
operation of law or otherwise, of any right, title, or interest of the Owners to
and in their ownership interest in the Owner Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
11.03 Limitations on Rights of Others. Except for Section 2.07, the
provisions of this Agreement are solely for the benefit of the Owner Trustee,
the Depositor, the Company, the Owners, the Administrator and to the extent
expressly provided herein the Indenture Trustee and the Noteholders, and nothing
in this Agreement, (other than Section 2.07), whether express or implied, shall
be construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
11.04 Notices.
(a) Unless otherwise expressly specified or permitted by the terms hereof,
all notices shall be in writing and shall be deemed given upon receipt by the
intended recipient or three Business Days after mailing if mailed by certified
mail, postage prepaid (except that notice to the Owner Trustee shall be deemed
given only upon actual receipt by the Owner Trustee), if to the Owner Trustee,
addressed to the Corporate Trust Office; if to the Depositor, addressed to
Toyota Motor Credit Receivables Corporation, 00000 Xxxxxxxx Xxxxx, Xxxxx
Xxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Secretary; if, to the Trust,
addressed to Toyota Auto Receivables Owner Trust 199_-_, 00000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Secretary; or, as to each party,
at such other address as shall be designated by such party in a written notice
to each other party.
(b) Any notice required or permitted to be given a Certificateholder shall
be given by first-class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder receives such notice.
11.05 Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid or unenforceable in any jurisdiction, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no
31
way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
11.06 Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed to be an original, and all
of which shall constitute but one and the same instrument.
11.07 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the Depositor, the
Company, the Owner Trustee and its successors and each Owner and its successors
and permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by an Owner shall bind the
successors and assigns of such owner.
11.08 No Petition. The Owner Trustee (not in its individual capacity but
solely as Owner Trustee), by entering into this Agreement hereby covenants and
agrees, each Certificateholder, by accepting a Certificate, and the Indenture
Trustee and any Noteholder by accepting the benefits of this Agreement, are
thereby deemed to covenant and agree that they will not at any time institute
against the Depositor or the Trust, or join in any institution against the
Depositor or the Trust of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal or
state bankruptcy or similar law. This Section 11.09 shall survive the
termination of this Agreement or the termination of the Owner Trustee under this
Agreement.
11.09 No Recourse. Each Certificateholder by accepting an interest in a
Certificate acknowledges that such Certificates represent beneficial interests
in the Trust only and do not represent interests in or obligations of the
Depositor (in any capacity), TMCC, the Administrator, the Owner Trustee, the
Indenture Trustee or any Affiliate thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in the Certificates or the Basic Documents.
11.10 Headings. The headings of the various Articles and Sections herein
are for convenience of reference only and shall not define or limit any of the
terms or provisions hereof.
11.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF [DELAWARE], WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
11.12 TMCC Payment Obligation. The parties hereto acknowledge and agree
that TMCC shall be responsible for payment of the Administrator's fees under the
Administration Agreement and shall reimburse the Administrator for all expenses
and liabilities of the Administrator incurred thereunder. [In addition, the
parties hereto acknowledge and agree that TMCC shall be responsible for the
payment of all fees and expenses of the Trust, the Owner Trustee and the
Indenture Trustee paid by any of them in connection with any of their
obligations under the Basic Documents to obtain or maintain any required license
under the Pennsylvania Motor Vehicle
32
Sales Finance Act.] The parties hereto covenant and agree that neither of them
shall look to the other for payment of any such fees or expenses.
33
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
TOYOTA MOTOR CREDIT RECEIVABLES
CORPORATION,
Depositor
By: ________________________________________
Name:
Title:
-,
not in its individual capacity but
solely as Owner Trustee
By: ________________________________________
Name:
Title:
34
------------
EXHIBIT A
------------
(FORM OF CERTIFICATE)
UNLESS THIS CERTIFICATE 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 CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE CO. HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE OWNER TRUSTEE
SHALL HAVE RECEIVED A REPRESENTATION FROM THE TRANSFEREE HEREOF IN FORM AND
SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE TO THE EFFECT THAT: (1) SUCH
TRANSFEREE (A) IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO SECTION
406 OF ERISA OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE (A "PLAN"), NOR A
PERSON ACTING ON BEHALF OF A PLAN NOR USING THE ASSETS OF A PLAN TO EFFECT SUCH
TRANSFER, AND (B) IS NOT AN INSURANCE COMPANY PURCHASING THIS CERTIFICATE WITH
FUNDS CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS DEFINED IN SECTION
V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60")) AS TO WHICH
THERE IS A PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S
RESERVES AND LIABILITIES FOR THE CONTRACTS HELD BY OR ON BEHALF OF SUCH PLAN AND
ALL OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED
IN SECTION V(A)(1) OF PTCE 95-60) OF BY THE SAME EMPLOYEE ORGANIZATION EXCEED
10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS
SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTCE 95-60) AT THE DATE OF
ACQUISITION; OR (2) SUCH TRANSFEREE IS A PLAN OR IS AN INSURANCE COMPANY
PURCHASING THIS CERTIFICATE WITH FUNDS CONTAINED IN AN INSURANCE COMPANY GENERAL
ACCOUNT, BUT HAVING ATTACHED THERETO AN OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE, WHICH OPINION SHALL NOT BE AN EXPENSE OF EITHER THE OWNER TRUSTEE OR
THE TRUST, ADDRESSED TO THE OWNER TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF SUCH CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE OWNER TRUST
A-1
ESTATE BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE AND WILL NOT SUBJECT THE OWNER
TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS
AGREEMENT OR TO ANY LIABILITY. IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE,
THE REPRESENTATIONS CONTAINED IN CLAUSE (1) ABOVE SHALL BE DEEMED TO HAVE BEEN
MADE TO THE OWNER TRUSTEE BY THE TRANSFEREE'S (INCLUDING AN INITIAL ACQUIROR'S)
ACCEPTANCE OF THIS CERTIFICATE.
NUMBER $____________
R-_____ CUSIP NO. _________
TOYOTA AUTO RECEIVABLES 199_-_ OWNER TRUST
-% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of retail installment sale contracts secured
by new and used automobiles and light duty trucks and sold to the Trust by
Toyota Motor Credit Receivables Corporation ("TMCRC").
(This Certificate does not represent an interest in or obligation of TMCRC,
Toyota Motor Credit Corporation ("TMCC"), Toyota Motor Sales, U.S.A., Inc. or
any of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT ________________________________________ is the
registered owner of _________________________ DOLLARS nonassessable, fully-paid,
fractional undivided interest in Toyota Auto Receivables 199_-_ Owner Trust (the
"Trust") formed by TMCRC.
The Trust was created pursuant to a Trust Agreement dated as of -, (as
amended and supplemented from time to time, the "Trust Agreement"), between
TMCRC, as depositor (the "Depositor") and -, as owner trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. Capitalized terms used herein and not otherwise defined have the
meanings ascribed thereto in the Trust Agreement or in the Sale and Servicing
Agreement dated as of - (the "Sale and Servicing Agreement"), among the Trust,
the Depositor and TMCC, as servicer (the "Servicer"), as applicable.
This Certificate is one of the duly authorized Certificates designated as
"-% Asset Backed Certificates" (the "Certificates") issued pursuant to the Trust
Agreement. Certain debt instruments evidencing obligations of the Trust have
been issued under an Indenture dated as of -, between the Trust and -, as
indenture trustee (the "Indenture Trustee"), consisting of three classes of
Notes designated as "Class A-1-% Asset Backed Notes", "Class A-2 -% Asset Backed
Notes" and "Class A-3 -% Asset Backed Notes" (collectively, the "Notes"). This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement to
A-2
which Trust Agreement the holder of this Certificate by virtue of the acceptance
hereof assents and by which such holder is bound. The property of the Trust
includes a pool of retail installment sale contracts secured by new and used
automobiles and light duty trucks (the "Receivables", all monies due thereunder
on or after -, in the case of Precomputed Receivables or received after such
date in the case of Simple Interest Receivables, security interests in the
vehicles financed thereby, certain bank accounts and the proceeds thereof,
proceeds from claims on certain insurance policies and certain other rights
under the Trust Agreement and the Sale and Servicing Agreement and all proceeds
of the foregoing.
Under the Trust Agreement, there will be distributed on the - day of each
month or, if such - day is not a Business Day, the next Business Day, (each, a
"Distribution Date"), commencing on -, to the person in whose name this
Certificate is registered at the close of business on the related Record Date,
such Certificateholder's pro rata portion of the amounts to be distributed to
Certificateholders on such Distribution Date in respect of interest on and
principal of the Certificates; provided, however, that principal will be
distributed to the Certificateholders on each Distribution Date commencing on
the later of (i) the ________, 199__ Distribution Date and (ii) the Distribution
Date next succeeding the Distribution Date on which the Class A-1 Notes were
paid in full, principal of the Certificates will be payable in an amount
generally equal to the Certificateholders' Principal Distributable Amount for
the Collection Period preceding such Distribution Date, to the extent of funds
available therefor following payment of the Servicing Fee and payments of
interest and principal in respect of the Notes and the distribution of interest
in respect of the Certificates.
The holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement and
the Indenture.
It is the intent of the Depositor, TMCC and the Certificateholders that,
for purposes of federal income tax, state and local income tax, any state single
business tax and any other income taxes, the Trust will be treated as a
partnership and the Certificateholders (including the Depositor) will be treated
as partners in that partnership. The Depositor and each Certificateholder or
Certificate Owner, by acceptance of a Certificate or any beneficial interest on
a Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Certificates as partnership interests in the Trust for such
tax purposes.
Each Certificateholder or Certificate Owner, by its acceptance of a
Certificate or any beneficial interest in a Certificate, covenants and agrees
that such Certificateholder or Certificate Owner, as the case may be, will not
at any time institute against the Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates, the Notes, the
Trust Agreement or any of the Basic Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer or check mailed to each
Certificateholder of record without the
A-3
presentation or surrender of this Certificate or the making of any notation
hereon, except that with respect to Certificates registered on the Record Date
in the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Except as otherwise provided in
the Trust Agreement and notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Owner Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in the Borough of [Manhattan], The City of New York.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF [DELAWARE], WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
TOYOTA AUTO RECEIVABLES 199_-_
OWNER TRUST
By: ________________________________________
-,
not in its individual capacity but solely
an Owner Trustee
Dated: By: ________________________________________
Authorized Signatory
A-4
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
- -,
as Owner Trustee or as Owner Trustee
By: ____________________________ By: -,
Authorized Signatory as Authenticating Agent
By: ____________________________________
Authorized Signatory
A-5
(REVERSE OF CERTIFICATE)
The Certificates do not represent an obligation of, or an interest in,
TMCC, TMCRC, Toyota Motor Sales, U.S.A., Inc. or any of their Affiliates and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated herein or in the Trust Agreement or the
Basic Documents. In addition, this Certificate is not guaranteed by any
governmental agency or instrumentality and to limited in right of payment to
certain collections with respect to the Receivables (and certain other amounts),
all as more specifically set forth herein and in the Sale and Servicing
Agreement. A copy of each of the Sale and Servicing Agreement and the Trust
Agreement may be examined during normal business hours at the principal office
of the Depositor, and at such other places, if any, designated by the Depositor,
by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by the Depositor and the Owner Trustee with the consent of the holders
of the Notes or, with respect to certain matters not affecting the interests of
the Noteholders, at least 51% of the Certificates each voting together as a
single class (excluding Securities held by TMCRC, TMCC or any of their
Affiliates). Any such consent by the holder of this Certificate shall be
conclusive and binding on such holder and on all future holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefore or in lieu hereof whether or not notation of such consent is
made upon this Certificate or such replacement certificate. The Trust Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Holders of the Certificates.
As provided in the Trust Agreement, and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in the Borough of [Manhattan] in The City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Owner Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of authorized denominations evidencing the same aggregate
interest in the Trust will be issued to the designated transferee or
transferees. The initial Certificate Registrar appointed under the Trust
Agreement is -, [City, State].
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 and in integral multiples of $1,000 in excess
thereof. As provided in the Trust Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of
authorized denominations evidencing the same aggregate denomination, as
requested by the holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
A-6
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes and none of the
Owner Trustee, the Certificate Registrar or any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Certificateholders
of all amounts required to be paid to them pursuant to the Trust Agreement and
the Sale and Servicing Agreement and the disposition of all property held as
part of the Owner Trust Estate. TMCC, as servicer of the Receivables under the
Sale and Servicing Agreement, or any successor servicer, may at its option
purchase the corpus of the Trust at a price specified in the Sale and Servicing
Agreement, and any such purchase of the Receivables and other property of the
Trust will effect early retirement of the Certificates; however, such right of
purchase is exercisable only after the last day of the Collection Period as of
which the Pool Balance is less than or equal to 10% of the Original Pool
Balance.
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of
assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_______________________________________________________________________ Attorney
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:_______________
_______________________________________*/
Signature Guaranteed:
_______________________________________*/
----------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the Now York Stock Exchange or a commercial bank
or trust company.
A-8
EXHIBIT B
CERTIFICATE OF TRUST OF
TOYOTA AUTO RECEIVABLES 199 - OWNER TRUST
THIS Certificate of Trust of TOYOTA AUTO RECEIVABLES OWNER TRUST 199_-_
(the "Trust"), dated as of -, is being duly executed and filed by -, a [Delaware
banking corporation], as trustee, to form a business trust under the [Delaware
Business Trust Act (12 Del. Code, ss.3801 et seq.)].
1. Name. The name of the business trust formed hereby is TOYOTA AUTO
RECEIVABLES 199_-_ OWNER TRUST.
2. [Delaware] Trustee. The name and business address of the trustee of the
Trust in the State of [Delaware] is -, [Address], Attention: -.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
-,
not in its individual capacity but
solely as owner trustee under a
Trust Agreement dated as of -,
By: __________________________________
Name:
Title:
B-1
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Table of Contents/Authorities.
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