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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
GENERAL FORM FOR REGISTRATION OF SECURITIES
Pursuant to Section 12(b) or (g) of the
Securities and Exchange Act of 1934
Toyota Auto Lease Trust 1997-A
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(Exact Name of Registrant as specified in its charter)
California 333-26717 33-0755530
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification Number)
Toyota Leasing, Inc.
19001 South Western Avenue
Torrance, California 90509
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (310) 787-1310
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Exhibit Index is on Page 5
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Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On September 24, 1997, pursuant to a SUBI Certificate Purchase and Sale
Agreement (the "Certificate Transfer Agreement") dated as of September 1, 1997,
Toyota Motor Credit Corporation transferred to Toyota Leasing, Inc. ("TLI") a
certificate evidencing a special unit of beneficial interest (the "SUBI
Certificate") representing a beneficial interest in certain specified assets of
Toyota Lease Trust, a Delaware business trust.
Also on September 24, 1997, pursuant to the Securitization Trust Agreement
(the "Securitization Trust Agreement") dated as of September 1, 1997, between
TLI and U.S. Bank National Association (formerly known as First Bank National
Association), as securitization trustee, TLI, as originator of the Toyota Auto
Lease Trust 1997-A (the "Securitization Trust"), transferred to the
Securitization Trust the SUBI Certificate (excluding all rights to the proceeds
of the Residual Value Insurance Policy) in exchange for, among other things, the
Auto Lease Asset Backed Certificates, including the $410,000,000 6.20% Auto
Lease Asset Backed Certificates, Class A-1, $650,000,000 6.35% Auto Lease Asset
Backed Certificates, Class A-2, and $72,750,000 6.45% Auto Lease Asset Backed
Certificates, Class A-3 (the "Certificates") evidencing certain beneficial
interests in the assets of the Securitization Trust. These Certificates were
offered to the public pursuant to a Prospectus dated September 11, 1997
comprising part of a Registration Statement on Form S-1 (Registration No.
333-26717) (the "Registration Statement"). A complete description of the
Certificates is set forth in the Registration Statement, as amended by
amendments No. 1, No. 2, No. 3 and No. 4 thereto, and the Registration Statement
and such amendments are incorporated herein by reference.
This Registration Statement relates only to the Certificates issued by the
Securitization Trust (the "Registrant"), and not to any other securities
described in the Registration Statement.
Item 2. EXHIBITS.
Exhibit Number Description
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3.1 Articles of Incorporation of Toyota Leasing, Inc.*
3.2 Bylaws of Toyota Leasing, Inc.*
4.1 Amended and Restated Trust and Servicing Agreement
among Toyota Motor Credit Corporation ("TMCC"), TMTT,
Inc., as Trustee and First Bank National Association,
as Trust Agent, dated as of October 1, 1996
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4.2 UTI Supplement to Amended and Restated Trust and
Servicing Agreement among TMCC, TMTT, Inc., as Trustee,
and First Bank National Association, as Trust Agent,
dated as of October 1, 1996
4.3 SUBI Supplement 1997-A to Amended and Restated Trust
Agreement among TMCC, TMTT, Inc., as Trustee and
First Bank National Association, as Trust Agent, dated
as of October 1, 1996
4.4 Servicing Supplement to Amended and Restated Trust and
Servicing Agreement between TMTT, Inc. and TMCC, dated
as of September 1, 1997
4.5 SUBI Certificate Purchase and Sale Agreement between
TMCC and Toyota Leasing, Inc., dated as of September 1,
1997
4.6 TMCC Demand Note Indenture between TMCC and U.S. Bank
National Association, as trustee, dated September 1,
1997 (including form of TMCC Demand Note)
4.7 Calculation agreement between TMCC and U.S. Bank
National Association, as calculation agent, dated
September 1, 1997.
4.8 Securitization Trust Agreement between Toyota
Leasing, Inc. and U.S. Bank National Association (f/k/a
First Bank National Association, as Trustee
4.9 Specimens of Certificates.
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* Incorporated by reference to Registration Statement on Form S-1 (Registration
No. 333-26717).
3
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Act of 1934,
the Registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized.
Date: December 22, 1997 TOYOTA AUTO LEASE TRUST 1997-A
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By: Toyota Motor Credit Corporation, as
Servicer
By: /s/ Gregory Willis
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Gregory Willis
Vice President--Finance and
Administration (Principal Accounting
Officer)
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EXHIBIT INDEX
Exhibit No. Description Page No.
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3.1 Articles of Incorporation of Toyota Leasing, Inc.*
3.2 Bylaws of Toyota Leasing, Inc.*
4.1 Amended and Restated Trust and Servicing
Agreement among Toyota Motor Credit Corporation
("TMCC"), TMTT, Inc., as Trustee and First Bank
National Association, as Trust Agent, dated as
of October 1, 1996
4.2 UTI Supplement to Amended and Restated Trust
and Servicing Agreement among TMCC, TMTT, Inc.,
as Trustee, and First Bank National Association,
as Trust Agent, dated as of October 1, 1996
4.3 SUBI Supplement 1997-A to Amended and
Restated Trust Agreement among TMCC, TMTT, Inc.,
as Trustee and First Bank National Association,
as Trust Agent, dated as of October 1, 1996
4.4 Servicing Supplement to Amended and Restated Trust
and Servicing Agreement between TMTT, Inc. and
TMCC, dated as of September 1, 1997
4.5 SUBI Certificate Purchase and Sale Agreement
between TMCC and Toyota Leasing, Inc., dated as of
September 1, 1997
4.6 TMCC Demand Note Indenture between TMCC and U.S. Bank
National Association, as trustee, dated September 1, 1997
(including form of TMCC Demand Note)
4.7 Calculation agreement between TMCC and U.S. Bank
National Association, as calculation agent, dated
September 1, 1997.
4.8 Securitization Trust Agreement between
Toyota Leasing, Inc. and U.S. Bank National
Association (f/k/a First Bank National
Association, as Trustee
4.9 Specimens of Certificates.
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* Incorporated by reference to Registration Statement on Form S-1 (Registration
No. 333-26717).
5
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EXECUTION COPY
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TOYOTA LEASE TRUST
(a Delaware Business Trust)
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AMENDED AND RESTATED
TRUST AND SERVICING AGREEMENT
Among
TOYOTA MOTOR CREDIT CORPORATION,
TMTT, INC.
and
(For certain limited purposes only)
FIRST BANK NATIONAL ASSOCIATION
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Dated as of October 1, 1996
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II
CREATION OF TITLING TRUST; GRANTOR'S INTEREST
SECTION 2.01 Creation of Titling Trust. . . . . . . . . . . . . . . . . . .1
SECTION 2.02 Business Trust . . . . . . . . . . . . . . . . . . . . . . . .2
SECTION 2.03 Offices. . . . . . . . . . . . . . . . . . . . . . . . . . . .2
SECTION 2.04 Purposes.. . . . . . . . . . . . . . . . . . . . . . . . . . .2
SECTION 2.05 Document Execution and Performance.. . . . . . . . . . . . . .3
SECTION 2.06 Additional Beneficiaries.. . . . . . . . . . . . . . . . . . .3
SECTION 2.07 Tax Reporting and Characterization.. . . . . . . . . . . . . .4
ARTICLE III
BENEFICIAL INTERESTS IN THE TITLING TRUST
SECTION 3.01 Sub-Trusts: Creation of UTI and SUBIs. . . . . . . . . . . . .4
SECTION 3.02 Beneficiary Liabilities. . . . . . . . . . . . . . . . . . . .7
SECTION 3.03 Insurance Policies.. . . . . . . . . . . . . . . . . . . . . .7
SECTION 3.04 Allocation of Liabilities and Indemnification. . . . . . . . .8
ARTICLE IV
THE SERVICER
SECTION 4.01 Duties of the Servicer.. . . . . . . . . . . . . . . . . . . .8
SECTION 4.02 Liability of Servicer; Indemnities.. . . . . . . . . . . . . .9
SECTION 4.03 Merger, Consolidation, or Assumption of the
Obligations of, the Servicer. . . . . . . . . . . . . . . . . 10
SECTION 4.04 Limitation on Liability of Servicer and Others.. . . . . . . 11
SECTION 4.05 Servicer Not to Resign; Delegation of Duties.. . . . . . . . 11
SECTION 4.06 Servicing Compensation.. . . . . . . . . . . . . . . . . . . 12
SECTION 4.07 Powers of Attorney.. . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.08 Protection of Title to Titling Trust . . . . . . . . . . . . 13
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ARTICLE V
PAYMENTS
SECTION 5.01 Payments from Titling Trust Assets Only. . . . . . . . . . . 13
SECTION 5.02 Manner of Payment. . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI
THE TITLING TRUSTEE
SECTION 6.01 Duties and Powers of Titling Trustee.. . . . . . . . . . . . 14
SECTION 6.02 Duty of Care.. . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.03 Certain Matters Affecting the Titling Trustee. . . . . . . . 16
SECTION 6.04 Titling Trustee Not Liable for Certificates or Losses. . . . 18
SECTION 6.05 Indemnity of Titling Trustee and Trust Agents. . . . . . . . 19
SECTION 6.06 Titling Trustee's Right Not to Act.. . . . . . . . . . . . . 19
SECTION 6.07 Qualification of Titling Trustee.. . . . . . . . . . . . . . 20
SECTION 6.08 Resignation or Removal of Titling Trustee. . . . . . . . . . 20
SECTION 6.09 Successor Titling Trustee. . . . . . . . . . . . . . . . . . 21
SECTION 6.10 Merger or Consolidation of Titling Trustee.. . . . . . . . . 21
SECTION 6.11 Appointment of Co-Titling Trustee, Separate
Titling Trustee, or Nominee.. . . . . . . . . . . . . . . . . 21
SECTION 6.12 Representations, Warranties and Covenants of
Titling Trustee.. . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.13 Titling Trustee's Fees and Expenses. . . . . . . . . . . . . 24
SECTION 6.14 No Petition. . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.15 Stock of TMTT, Inc.. . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VII
ACCOUNTS; CASH FLOWS; PERMITTED INVESTMENTS
SECTION 7.01 Accounts.. . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 7.02 Relationship to Securitized Financings.. . . . . . . . . . . 28
SECTION 7.03 SUBI Lease Funding Accounts. . . . . . . . . . . . . . . . . 29
SECTION 7.04 Rebalancing After Third Party Claim. . . . . . . . . . . . . 29
ARTICLE VIII
TERMINATION
SECTION 8.01 Termination of the Titling Trust.. . . . . . . . . . . . . . 30
SECTION 8.02 Termination at the Option of Beneficiary.. . . . . . . . . . 30
SECTION 8.03 Titling Trustee Actions Upon Termination.. . . . . . . . . . 30
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ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 9.02 Governing Law.. . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 9.03 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 9.04 Severability of Provisions.. . . . . . . . . . . . . . . . . 31
SECTION 9.05 Counterparts.. . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 9.06 Successors and Assigns.. . . . . . . . . . . . . . . . . . . 32
SECTION 9.07 Table of Contents and Headings.. . . . . . . . . . . . . . . 32
EXHIBITS
EXHIBIT A -- Form of UTI Supplement, including
Form of UTI Certificate . . . . . . . . . . . . . . . . . . .A-1
EXHIBIT B -- Form of SUBI Supplement, including
Form of SUBI Certificate. . . . . . . . . . . . . . . . . . .B-1
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AMENDED AND RESTATED TRUST AND SERVICING AGREEMENT, dated as of October 1,
1996 among TOYOTA MOTOR CREDIT CORPORATION, a California corporation (as
grantor, initial beneficiary and servicer) and TMTT, INC., a Delaware
corporation, as Titling Trustee, and, for the limited purposes set forth herein,
FIRST BANK NATIONAL ASSOCIATION, a national banking association, as Trust Agent,
amending and restating in its entirety the Trust and Servicing Agreement dated
as of October 1, 1996 among the same parties, and herein referred to as the
"Titling Trust Agreement" or this "Agreement".
IN CONSIDERATION of the mutual agreements herein contained, and of other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. For all purposes of this Titling Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, capitalized terms used and not otherwise defined herein
shall have the meanings ascribed thereto in the Annex of Definitions attached
hereto for all purposes of this Titling Trust Agreement. In the event of any
conflict between a definition set forth herein and that set forth in the Annex
of Definitions, that set forth herein shall prevail. All terms used in this
Titling Trust Agreement include, as appropriate, all genders and the plural as
well as the singular. All references such as "herein", "hereof" and the like
shall refer to this Titling Trust Agreement as a whole and not to any particular
article or section within this Titling Trust Agreement. All references such as
"includes" and variations thereon shall mean "includes without limitation" and
references to "or" shall mean "and/or". Any reference to the "Titling Trustee,
acting on behalf of the Titling Trust", or words of similar import, shall be
deemed to mean the Titling Trustee, acting on behalf of Toyota Lease Trust and
all beneficiaries thereof.
ARTICLE II
CREATION OF TITLING TRUST; GRANTOR'S INTEREST
SECTION 2.01 CREATION OF TITLING TRUST.
There is hereby formed in accordance with the provisions of the Delaware
Act, a Delaware business trust to be known as the Toyota Lease Trust. The
Titling Trustee is hereby authorized and vested with the power and authority to
make and execute contracts, instruments, certificates, agreements and other
writings on behalf of the Titling Trust as set forth herein and to sue and be
sued on behalf of the Titling Trust.
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The Titling Trustee does hereby accept and agree to hold in trust, for the
benefit of the UTI Beneficiary and such other Persons as may become
Beneficiaries hereunder from time to time, all Titling Trust Assets conveyed or
to be conveyed pursuant to Section 3.01, and all monies and proceeds that may be
received thereunder, subject to the terms of this Agreement.
SECTION 2.02 BUSINESS TRUST.
It is the intention of the parties hereto that the Titling Trust be a
business trust under the Delaware Act and that this Agreement shall constitute
the governing instrument of the Titling Trust. Effective as of the date hereof,
the Titling Trustee shall have all rights, powers and duties set forth herein
and in the Delaware Act with respect to accomplishing the purposes of the
Titling Trust. At the direction of the Grantor, the Titling Trustee shall file
or cause to be filed a certificate of trust for the Titling Trust pursuant to
the Delaware Act and such amendments thereto as shall be necessary or
appropriate to satisfy the purposes of this agreement and as shall be consistent
with the provisions hereof.
SECTION 2.03 OFFICES. The principal place of business of the Titling
Trust for purposes of Delaware law shall be in care of the Delaware Trustee as
identified in the Co-Trustee Agreement. The Titling Trust may establish
additional offices located at such place or places inside or outside of the
State of Delaware as the Titling Trustee may designate from time to time in
written notice to each Beneficiary and the Servicer. Initially, the Titling
Trust shall establish one such additional office at offices of Toyota Motor
Credit Corporation set forth in Section 9.03.
SECTION 2.04 PURPOSES.
(a) The purposes of the Titling Trust are to: (i) take assignments and
conveyances of, hold in trust and release its ownership interest in the Titling
Trust Assets as nominee holder of legal title and for the benefit of, and at the
direction of, the Beneficiaries; (ii) engage in any of the other activities
described or authorized in this Agreement, any UTI Supplement or SUBI
Supplement, or in any amendment to this Agreement or any UTI Supplement or SUBI
Supplement; and (iii) engage in any and all activities that are necessary or
appropriate to accomplish the foregoing or that are incidental thereto or
connected therewith. The Titling Trust shall not engage in any activity other
than in connection with the foregoing or other than as required or authorized by
applicable law or (subject to the terms of this Agreement) the documents
relating to a Securitized Financing.
In consideration of the receipt of beneficial interests in the Titling
Trust described in Article III, the Grantor shall from time to time assign,
transfer, contribute or convey, or cause to be assigned, transferred,
contributed or conveyed, the Titling Trust Assets to the Titling Trust. The
Titling Trust, and the Titling Trustee on behalf of the Titling Trust, shall
hold in trust all legal rights and interests in the Titling Trust Assets for the
benefit of the Beneficiaries.
The UTI Beneficiary may from time to time designate the Titling Trust or
the Titling Trustee, on behalf of the Titling Trust, as the nominee holder of
legal title to Contracts that are Eligible
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Contracts, the related Leased Vehicles and other Titling Trust Assets. In
connection therewith, such Leased Vehicles will be titled in the name of the
Titling Trust or the Titling Trustee, on behalf of the Titling Trust, and the
Titling Trustee will accept such designation and, subject to the other terms of
this Agreement, will permit the related Certificates of Title to be titled in
the name of the Titling Trust or the Titling Trustee, on behalf of the Titling
Trust. Legal title to all Titling Trust Assets shall be vested in the Titling
Trust or the Titling Trustee, on behalf of the Titling Trust, as a separate
legal entity except to the extent otherwise specifically provided herein or in
any other document relating to a Securitized Financing or where applicable state
law requires any Titling Trust Asset to be vested otherwise, in which case the
Titling Trustee will, at the direction of the UTI Beneficiary or the Servicer,
cause legal title to be held as required thereby.
(b) The Titling Trustee hereby accepts and agrees to hold in trust all
Titling Trust Assets conveyed to it hereunder, for the use and benefit of, and
as nominee holder of legal title for, the Beneficiaries and any successors and
assigns as may be designated pursuant to the terms hereof or as may otherwise
succeed to the rights of a Beneficiary hereunder. The Servicer may appoint one
or more nominees to hold title to some or all of the Titling Trust Assets in the
name of such nominee title holder for the sole and exclusive benefit of the
Titling Trust and, upon the appointment of such nominee title holder(s), the
Titling Trustee will transfer title to all or such portion of the Titling Trust
Assets as directed by the Servicer.
SECTION 2.05 DOCUMENT EXECUTION AND PERFORMANCE. Each Beneficiary hereby
authorizes and directs the Titling Trustee, and the Titling Trustee hereby
agrees to: (i) at the request of a Beneficiary or the Servicer, execute and
deliver all agreements, instruments or documents necessary or advisable to
accept, or cause the Titling Trust to accept, the designation as nominee holder
of legal title to Contracts, Leased Vehicles and other Titling Trust Assets as
described herein and cause the related Certificates of Title to be titled in the
name of the Titling Trust or the Titling Trustee, on behalf of the Titling
Trust; (ii) take action that is required to be taken by the Titling Trustee as
specified in the documents relating to a Securitized Financing or at the
direction of the relevant Beneficiary in accordance with applicable law; (iii)
exercise its rights and perform its duties as Titling Trustee as specified in
the documents relating to a Securitized Financing; (iv) at the direction of a
Beneficiary (a) release, discharge, sell, assign, transfer, pledge, convey or
otherwise dispose of any right, title or interest in and to any portion of the
Titling Trust Assets comprising the related Sub-Trust (or to cause the Titling
Trust to take any such action), (b) amend or revoke the terms hereof with
respect to all or any portion of the related Titling Trust Assets or affecting
any other provision hereof; and (v) appoint the Servicer as the attorney in fact
for the Titling Trust as contemplated by this Titling Trust Agreement and the
related SUBI Servicing Supplement and direct the Servicer to perform such
administrative duties on behalf of the Titling Trust as are set forth herein.
SECTION 2.06 ADDITIONAL BENEFICIARIES. Notwithstanding any other
provision of this Agreement, the UTI Beneficiary and the Servicer may in writing
designate additional Beneficiaries who shall have the right to designate the
Titling Trust or the Titling Trustee, on behalf of the Titling Trust, as nominee
holder of legal title to Contracts, Leased Vehicles and other Titling Trust
Assets and cause the related Certificates of Title to be titled in the name of
the Titling Trust or the Titling
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Trustee, on behalf of the Titling Trust. No Person shall become a Beneficiary
until it has delivered to the parties hereto an agreement in form and substance
satisfactory to the Titling Trustee and the Servicer pursuant to which it agrees
to become a party to this Agreement.
SECTION 2.07 TAX REPORTING AND CHARACTERIZATION.
Consistent with the treatment of the Titling Trust for tax purposes as a
mere nominee holder of legal title of the Titling Trust Assets with respect to
each Sub-Trust, unless otherwise required by appropriate taxing authorities, the
Titling Trust will not file or cause to be filed any annual or other tax returns
with respect to the Titling Trust. Consistent with the treatment of the UTI
Sub-Trust as a mere agent of the UTI Beneficiary for tax purposes, unless
otherwise required by appropriate taxing authorities, the UTI Beneficiary will
not file or cause to be filed any annual or other tax returns with respect to
the UTI Sub-Trust. In the event that the Titling Trust or the UTI Sub-Trust or
the Titling Trustee on behalf of the Titling Trust or the UTI Sub-Trust is
required to file any tax returns, the Servicer will prepare or cause to be
prepared the returns for the Titling Trust, the Titling Trustee or the UTI
Sub-Trust and will deliver such returns to the Titling Trustee for signature,
unless applicable law requires one or more Beneficiaries to sign such returns,
in which case the Servicer will deliver such returns to such Beneficiary or
Beneficiaries. The Titling Trust shall not elect to be treated as an
association under Section 301.7701-3(a) of the regulations of the United States
Department of the Treasury for federal income tax purposes.
ARTICLE III
BENEFICIAL INTERESTS IN THE TITLING TRUST
SECTION 3.01 SUB-TRUSTS: CREATION OF UTI AND SUBIS.
(a) Subject to the other provisions of this Section, to the extent
designated by the UTI Beneficiary from time to time, the Titling Trustee shall
establish one or more Sub-Trusts under this Agreement and allocate the Titling
Trust Assets identified by the UTI Beneficiary to each such Sub-Trust, and the
Titling Trustee shall hold such Titling Trust Assets as Titling Trustee
hereunder for the benefit, and subject to the direction, of the Beneficiaries of
such Sub-Trust. Each Sub-Trust shall be created by the execution and delivery
of a UTI Supplement or SUBI Supplement (as appropriate) and shall have the name
and beneficiaries designated by the UTI Beneficiary and shall be a separate
series of the Titling Trust pursuant to Section 3806(b)(2) of the Delaware Act.
The Servicer shall maintain separate and distinct records for each Sub-Trust,
and the Titling Trust Assets allocated to such Sub-Trust shall be held and
accounted for separately from all other Titling Trust Assets. Subject to the
right of the Titling Trustee to allocate certain Liabilities, charges and
reserves as provided herein and in any UTI Supplement or SUBI Supplement, and in
accordance with Section 3804(a) of the Delaware Act or to the extent otherwise
permitted by applicable law, all debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a Sub-Trust shall
be enforceable against the Titling Trust Assets allocated to such Sub-Trust
only, and not against the Titling Trust Assets allocated to any other Sub-Trust.
Every note, bond, contract or
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other undertaking issued by or on behalf of a Sub-Trust (including any UTI
Certificate or SUBI Certificate) shall include a recitation limiting the
obligation represented thereby to the related Sub-Trust and the Titling Trust
Assets allocated thereto. The Certificate of Trust for the Titling Trust shall
include notice of the limitation of liabilities of each Sub-Trust of the Titling
Trust, in accordance with Section 3804(a) of the Delaware Act.
(b) In accordance with Section 3806(b) of the Delaware Act, all Titling
Trust Assets that have not been allocated to a SUBI Sub-Trust shall constitute,
and be defined as, the "UTI Assets" and shall be, and be deemed to be,
identified to and assets of the UTI Sub-Trust separate from the assets of any
SUBI Sub-Trust within the Titling Trust. The UTI Sub-Trust shall be a separate
series of the Titling Trust pursuant to Section 3806(b)(2) of the Delaware Act.
In accordance with Section 3.01(a), the Servicer shall maintain separate and
distinct records for the UTI Sub-Trust and the UTI Assets shall be held and
accounted for separately from all other Titling Trust Assets. Pursuant to the
related UTI Supplement, the Titling Trustee shall distribute to or upon the
order of the UTI Beneficiary, a UTI representing an undivided interest in the
UTI Sub-Trust and the UTI Assets which may be subdivided and will be represented
by one or more UTI Certificates issued pursuant to one or more related UTI
Supplements. Except as otherwise provided for herein or in a UTI Supplement,
all income and other amounts with respect to the UTI shall be distributed or
retained by the Titling Trustee as directed from time to time by the UTI
Beneficiary.
(c) The Titling Trustee shall from time to time, as directed in writing by
the UTI Beneficiary, and subject to Section 3.01(d), identify or cause to be
identified on the books and records of the Titling Trust one or more separate
SUBI Sub-Trusts to be accounted for separately from each other and from the UTI
Sub-Trust within the Titling Trust, and will identify and allocate, or cause to
be identified and allocated, to such SUBI Sub-Trust on such books and records
certain Titling Trust Assets that are not then allocated to another SUBI
Sub-Trust. Upon such allocation, such related SUBI Assets shall no longer be
assets of, or allocated to, the UTI (unless and until specifically reallocated
to the UTI from that SUBI in accordance with the related SUBI Supplement). Each
SUBI shall constitute a separate series of the Titling Trust pursuant to Section
3806(b)(2) of the Delaware Act and shall represent the beneficial interest in
such SUBI and the SUBI Assets allocated thereto from time to time. Each SUBI
shall be represented by one or more separate SUBI Certificates issued pursuant
to the related SUBI Supplement. Pursuant to the related SUBI Supplement, the
Titling Trustee shall issue each SUBI Certificate to or upon the order of the
UTI Beneficiary.
(d) Notwithstanding anything to the contrary contained in this Section,
the Titling Trustee shall create a new SUBI Sub-Trust and SUBI and issue to or
upon the order of the UTI Beneficiary one or more SUBI Certificates evidencing
such SUBI by executing and delivering a SUBI Supplement only (i) upon receipt of
a certification of the UTI Beneficiary, dated as of the date of the issuance of
the related SUBI Certificate, to the effect that, as of the date of such
certificate, and after giving effect to the creation of the SUBI Sub-Trust, the
transfer to the UTI Beneficiary of any SUBI Certificates in connection therewith
and the application by the UTI Beneficiary of any net proceeds from any
Securitized Financing involving such SUBI and such SUBI Certificates, no Event
of
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Servicing Termination or other Early Amortization Event (or event that, with
the passage of time or the giving of notice, or both, could constitute an Event
of Servicing Termination or other Early Amortization Event), in each case as
defined in the relevant Transaction Documents, shall exist under any Securitized
Financing or other agreement or obligation secured by a UTI Pledge, and (ii) if,
as of the date of the issuance of the SUBI Certificates, the Titling Trustee
shall not have received from any pledgee of a UTI Pledge a notice asserting any
such default under any Securitized Financing or other agreement or obligation so
secured.
(e) The UTI Beneficiary shall not further transfer, assign, or pledge any
beneficial interest in the Titling Trust except as contemplated herein. The UTI
Beneficiary shall at all times maintain any minimum net worth specified in the
related UTI Supplement or any related SUBI Supplement.
(f) Each SUBI Beneficiary shall maintain with respect to the SUBI relating
thereto any minimum interest in that SUBI and the related SUBI Sub-Trust as may
be required by the applicable SUBI Supplement. Each SUBI Beneficiary shall at
all times maintain any minimum net worth specified in the related SUBI
Supplement.
(g) Except to the extent specified in this Agreement or in any applicable
SUBI Supplement, interests in a SUBI or SUBI Certificate shall be
nontransferable, provided that all or any part thereof may be (i) transferred
and assigned to a special purpose subsidiary of TMCC or another vehicle created
for the purpose of a Securitized Financing involving a SUBI, or (ii) assigned,
either absolutely or collaterally, or pledged by the UTI Beneficiary or the
related SUBI Beneficiary to or in favor of a trustee for one or more
securitization trusts solely for the purpose of securing or otherwise
facilitating one or more Securitized Financings, and provided further that each
such assignee or pledgee must (x) give a non-petition covenant substantially
similar to that set forth in Section 6.14, and (y) execute an agreement between
or among itself and each UTI Beneficiary and any SUBI Beneficiary, to release
all claims to the Titling Trust Assets allocated to the UTI Sub-Trust or any
other SUBI Sub-Trust and, in the event that such release is not given effect, to
fully subordinate all claims it may be deemed to have against the Titling Trust
Assets allocated thereto. In the event of a sale or an absolute assignment, or
upon foreclosure in the event of a collateral assignment or pledge as
contemplated in clause (ii), such purchaser, assignee or pledgee shall be a SUBI
Beneficiary in the manner and to the extent set forth in the related SUBI
Certificates so acquired and in the applicable SUBI Supplement. If so specified
in the related SUBI Supplement, the foregoing provisions restricting the
transfer of SUBI Certificates may be waived upon delivery to the Titling
Trustee and the UTI Beneficiary of an Opinion of Counsel in form and scope
reasonably satisfactory thereto to the effect that a contemplated transfer of
SUBI Certificates will not have any material adverse effect upon the Titling
Trust, any Sub-Trust or the interests of any Beneficiary.
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SECTION 3.02 BENEFICIARY LIABILITIES.
(a) The Beneficiary or Beneficiaries of each Sub-Trust shall, as to such
Sub-Trust but not as to any other Sub-Trust, each be jointly and severally
liable to third parties (including the Beneficiary or Beneficiaries of all other
Sub-Trusts) and indemnify, defend and hold harmless the Titling Trustee,
including its officers, directors, employees and agents, for all Liabilities
incurred in connection with the SUBI Assets of such Sub-Trust, including all
state and local taxes assessed on the Titling Trustee or the Titling Trust or
any such other Beneficiary resulting from the allocation of Titling Trust Assets
to such Sub-Trust.
(b) The UTI Beneficiary shall (to the extent necessary after giving effect
to Section 3.02(a)) indemnify, defend and hold harmless the Titling Trustee,
including its officers, directors, employees and agents, for all Liabilities of
the Titling Trust or the UTI Sub-Trust to third parties to the same extent that
the UTI Beneficiary would be liable if the Titling Trust or the UTI Sub-Trust
were a partnership formed under either of the Delaware Partnership Acts and the
UTI Beneficiary were a general partner thereof.
(c) As set forth in this Section, the Titling Trustee and its successors,
assigns, agents, officers, directors and employees shall be indemnified,
defended and held harmless with respect to any Liabilities arising out of or in
connection with the Titling Trustee's acceptance or performance of the trusts
and duties contained in this Titling Trust Agreement and in any SUBI Supplement
or related SUBI Servicing Supplement. Notwithstanding the foregoing, in no
event shall the Titling Trustee or its officers, directors or employees, be
indemnified, defended or held harmless for any Liabilities incurred solely (i)
by reason of the Titling Trustee's willful malfeasance, bad faith or negligence
or (ii) by reason of the Titling Trustee's breach of its representations set
forth in Section 6.12. The Titling Trustee shall promptly notify the
Beneficiaries of any claim for which it may seek indemnity. Failure by the
Titling Trustee to so notify the Beneficiaries of a claim for which it seeks
indemnification shall not relieve the Beneficiaries of their obligations under
this Section except to the extent of Liabilities that the Beneficiaries could
have avoided if notice had been so provided.
(d) All third party creditors of the Titling Trust shall be deemed to be
third party beneficiaries for purposes of this Section. The indemnities
contained in this Section shall survive the resignation or termination of the
Titling Trustee, or the termination of this Agreement. Any amounts that are
paid to the Titling Trustee pursuant to this Section shall no longer be deemed
to be Titling Trust Assets immediately after such amounts have been paid to the
Titling Trustee. To the extent provided in this Section, the Beneficiaries
hereby waive the limited liability protection otherwise afforded under the
Delaware Act (including Section 3803 thereof) or any other law.
SECTION 3.03 INSURANCE POLICIES.
(a) The Grantor will cause to be maintained, and shall not, without the
prior written consent of the Servicer, which consent may not be unreasonably
withheld, or, in the case of a rated Securitized Financing, unless otherwise
specified in the related SUBI Supplement, the consent of
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each Rating Agency, cause the termination of, the Contingent and Excess
Liability Insurance Policies unless (i) one or more replacement insurance
policies or binder(s) is obtained providing coverage against third party claims
that may be raised against the Titling Trustee, on behalf of the Titling Trust,
with respect to any Leased Vehicle included in the 1997-A SUBI Sub-Trust in an
amount at least equal to $10 million per claim, not subject to any annual or
aggregate cap (which policy or policies may be a blanket insurance policy or
policies covering the Servicer and one or more of its Affiliates), or (ii) such
further conditions as are specified in any SUBI Servicing Supplement are
satisfied.
(b) The UTI Beneficiary shall cause each of the Contingent and Excess
Liability Insurance Policies referred to in Section 3.03(a) to name the Titling
Trustee or Titling Trust as additional insureds or loss payees.
SECTION 3.04 ALLOCATION OF LIABILITIES AND INDEMNIFICATION.
Notwithstanding any other provision of this Agreement, any Supplement or any
amendment hereto, (i) to the extent that a Liability, including any
indemnification obligation, shall be incurred or suffered with respect to, or is
attributable to, one or more Affected Trust Assets allocated to one or more
Sub-Trusts, the Beneficiaries of each such Sub-Trust shall bear in full such
Liability or indemnification obligation in proportion to the ratio of the
aggregate value of the Affected Trust Assets in the UTI Portfolio or the related
SUBI Portfolio, as the case may be, to the aggregate value of the Affected Trust
Assets, but (ii) to the extent that any such Liability or indemnification
obligation is suffered with respect to all Titling Trust Assets generally, the
Beneficiaries shall bear such Liability or indemnification obligation in
proportion to the ratio of the aggregate value of the Contracts and Leased
Vehicles in the UTI Portfolio or the related SUBI Portfolio, as the case may be,
to the aggregate value of all Contracts and Leased Vehicles that are Titling
Trust Assets.
ARTICLE IV
THE SERVICER
SECTION 4.01 DUTIES OF THE SERVICER. The Servicer is hereby appointed and
authorized to act as attorney-in-fact for the Titling Trust, and in such
capacity shall manage, service, administer and make collections on the Titling
Trust Assets with reasonable care, using that degree of skill and attention that
it exercises with respect to comparable assets that it services for itself. The
Titling Trustee shall, with the consent of the Servicer, enter into any and all
agreements specified by the Beneficiary of the UTI or a SUBI in order to add,
delete or amend any or all of the obligations of the Servicer hereunder in
respect of all or any portion of the Titling Trust Assets in the UTI Sub-Trust
or the related SUBI Sub-Trust. The Servicer shall follow its customary
standards, policies and procedures and, unless otherwise indicated herein or in
the related SUBI Servicing Supplement, shall have full power and authority,
acting alone, to do any and all things in connection with such managing,
servicing, administrating and collecting that it may deem necessary or desirable
in the interest of the Titling Trust. The foregoing shall not be construed to
prevent the Servicer from implementing new programs, whether on an intermediate
pilot or permanent basis, or on a regional
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or nationwide basis, or from modifying its standards, policies and procedures,
as long as, in each case, the Servicer does or would implement such programs, or
modify its standards, policies and procedures, in respect of comparable assets
for itself in the ordinary course of business.
Without limiting the generality of the foregoing, the Servicer is hereby
authorized and empowered by the Beneficiaries and the Titling Trust to (x)
modify or extend the term of any Contract on the same terms and conditions it
applies or would apply to comparable assets owned by it, or (y) execute and
deliver, on behalf of the Titling Trust, any and all instruments, certificates
or other documents necessary or advisable to record and maintain title to the
Leased Vehicles in the name of the Titling Trust or the Titling Trustee, on
behalf of the Titling Trust, and to release interests of the Titling Trust, the
Titling Trustee, on behalf of the Titling Trust, and each Beneficiary in any
Leased Vehicle in connection with the sale or other disposition of a Leased
Vehicle (whether directly to the Obligor under the Contract relating to the
Leased Vehicle or to a third party) by the related Beneficiary as contemplated
by this Agreement and the other documents relating to a Securitized Financing.
The Servicer also shall be responsible for creating, maintaining and amending
the Schedule of Contracts and Leased Vehicles. The Servicer shall deliver to
the Titling Trustee, upon written request therefor by the Titling Trustee or any
Beneficiary, and upon any Trust Asset Transfer, a revised Schedule of Contracts
and Leased Vehicles current as of a date not more than ten days prior to the
date of such delivery.
The Servicer is hereby authorized to communicate with Obligors in the
course of its servicing of the Contracts and Leased Vehicles in its own name.
The Servicer is hereby authorized to commence, in its own name or in the name of
the Titling Trust, a legal proceeding or participate in a legal proceeding
(including a bankruptcy proceeding) relating to or involving the protection or
enforcement of the interest of the Titling Trust or the related Beneficiary in
any Contract, Leased Vehicle or other Trust Asset. If the Servicer commences or
participates in such legal proceeding in its own name, the Titling Trust shall
thereupon be deemed to have automatically assigned legal title to each related
Leased Vehicle and the Titling Trust's interest in the related Contract to the
Servicer for purposes of commencing or participating in any such proceeding as a
party or claimant, and the Servicer is authorized and empowered by the Titling
Trust to execute and deliver in the Servicer's name any notices, demands,
Claims, responses, affidavits or other documents or instruments in connection
with any such proceeding. The Titling Trustee shall furnish the Servicer with
any powers of attorney and other documents and take any other steps which the
Servicer may deem necessary or appropriate to enable it to carry out its duties
under this Agreement and the other documents relating to a Securitized
Financing.
SECTION 4.02 LIABILITY OF SERVICER; INDEMNITIES.
(a) The Servicer shall be liable in accordance with this Agreement and the
other documents relating to a Securitized Financing only to the extent of the
obligations specifically undertaken by the Servicer and shall have no other
obligations or liabilities hereunder or thereunder. The Servicer shall
indemnify, defend and hold harmless:
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(i) (A) the Titling Trust, the Titling Trustee and the Trust Agent
from and against any and all Liabilities arising out of or resulting from
its use, ownership or operation of any Leased Vehicle; and (B) the Titling
Trust, the Titling Trustee and the Trust Agent from and against any taxes
that may at any time be asserted against any of them with respect to the
transactions contemplated by this Agreement (other than taxes with respect
to fees payable hereunder, such fees being payable by the related
Beneficiary, or as herein provided, by the Servicer), including any state
sales, gross receipts, general corporation (including franchise and minimum
income taxes), tangible personal property, privilege or license, taxes and
costs and expenses in defending against the same, in each case to the
extent not paid by the related Obligors and to the extent related Titling
Trust Assets are not available therefor hereunder or are insufficient
therefor;
(ii) the Titling Trust, the Titling Trustee, the Trust Agent and the
Beneficiaries from and against any and all Liabilities to the extent that
such Liabilities arose out of, or are imposed upon, any of them through the
Servicer by reason of its disregard of its obligations and duties hereunder
or thereunder; and
(iii) the Titling Trustee and the Trust Agent from and against all
Liabilities arising out of or incurred in connection with the acceptance or
performance of the trusts and duties contained in this Agreement, except to
the extent that such Liabilities: (A) are due to the willful misfeasance,
bad faith or negligence (except for errors in judgment) of the Titling
Trustee or Trust Agent, (B) arise from the material breach by the Titling
Trustee or the Trust Agent of any of its representations or warranties set
forth in this Agreement, or (C) shall arise out of or be incurred in
connection with the performance by the Titling Trustee of the duties of a
successor Servicer hereunder, or of any such duties on behalf of the
Titling Trustee by the Trust Agent.
(b) Indemnification under this Section shall include reasonable fees and
expenses of counsel and expenses of litigation. If the Servicer has made any
indemnity payments pursuant to this Section and the recipient thereafter
collects any such amounts from others, the recipient shall promptly repay such
amounts collected to the Servicer, without interest, to the extent of such
payments made by the Servicer. Indemnification under this Section shall survive
any transaction described in Section 4.03 with respect to any and all Titling
Trust Assets as of the date of such transaction and any acts, occurrences or
transactions related thereto whether arising before or after the date of such
transaction.
SECTION 4.03 MERGER, CONSOLIDATION, OR ASSUMPTION OF THE OBLIGATIONS OF,
THE SERVICER. Any corporation (i) into which the Servicer may be merged or
consolidated, (ii) resulting from any merger, conversion or consolidation to
which the Servicer shall be a party or (iii) succeeding to the business of the
Servicer and which is otherwise servicing leases or retail installment sales
contracts, which corporation executes an agreement of assumption to perform
every obligation of the Servicer hereunder, shall be the successor to the
Servicer without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement. The Servicer shall provide notice
of
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any merger, consolidation or succession pursuant to this Section 4.03 to the
Titling Trustee, the UTI Beneficiary and each Rating Agency.
SECTION 4.04 LIMITATION ON LIABILITY OF SERVICER AND OTHERS.
(a) Neither the Servicer nor any of its directors, officers, employees or
agents shall be under any liability to the Titling Trust, the Titling Trustee,
the Trust Agent, or any Beneficiary, except as otherwise provided in this
Agreement and the other documents relating to a Securitized Financing, for any
action taken or for refraining from the taking of any action pursuant hereto or
thereto, or for errors in judgment. Notwithstanding the foregoing, this
provision shall not protect the Servicer or any such Person against any
Liability that would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence (except errors in judgment) in the performance of duties or
by reason of reckless disregard of obligations hereunder or thereunder. The
Servicer and its directors, officers, employees or agents may rely in good faith
on the advice of counsel or on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder or
thereunder.
(b) Except as provided in this Agreement and the other documents relating
to a Securitized Financing, the Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action that is not incidental to its
duties to service the Titling Trust Assets in accordance herewith or therewith
and that in its opinion may involve it in any expense or Liability.
Notwithstanding the foregoing, the Servicer may undertake any reasonable action
that it may deem necessary or desirable in respect of this Agreement and the
other documents relating to a Securitized Financing and the rights and duties of
the parties hereto or thereto and the interests of any Beneficiary hereunder or
thereunder. In such event, the reasonable legal expenses and costs for such
action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Titling Trust Assets relating to the applicable Sub-Trust and
the Servicer shall be entitled to be reimbursed therefor solely from funds
available therefor.
SECTION 4.05 SERVICER NOT TO RESIGN; DELEGATION OF DUTIES.
(a) Subject to Section 4.03, the Servicer shall not resign from the
obligations and duties imposed on it by this Agreement as Servicer except upon a
determination that the performance of its duties under this Agreement is no
longer permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced by an opinion of counsel to such
effect delivered to the Titling Trustee. No such resignation shall become
effective until a successor servicer shall have assumed the responsibilities and
obligations of the Servicer in accordance with Section 4.03. The Titling Trustee
will, in no event, be obligated to serve as successor servicer except upon its
express prior written consent.
(b) The Servicer may not assign any of its rights, powers, duties or
obligations under this Agreement. Notwithstanding the foregoing, the Servicer
may make such an assignment in connection with a consolidation, merger,
conversion or succession effected in compliance with
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Section 4.03 or in connection with the transfer to a successor servicer as
contemplated by clause (a) above.
(c) Except as provided in paragraphs (a) and (b) of this Section or in any
other document relating to a Securitized Financing, the duties and obligations
of the Servicer under this Agreement shall continue until this Agreement has
been terminated as provided in Section 8.01 and shall survive the exercise by
the Titling Trustee of any right or remedy under, or the enforcement by the
Titling Trustee of any provision contained in, this Agreement or any other
documents relating to a Securitized Financing.
(d) Notwithstanding the foregoing, the Servicer may enter into
subservicing agreements with one or more subservicers (which may be Affiliates
of the Servicer) for the servicing and administration (in whole or in part) of
the Contracts and the Leased Vehicles, with the consent of the Beneficiaries
(which consent shall not be unreasonably withheld) if such subservicer is not an
Affiliate of the Servicer. References in this Agreement or any other document
relating to a Securitized Financing to actions taken or to be taken by the
Servicer in servicing the Contracts and Leased Vehicles include actions taken or
to be taken by any such subservicer on behalf of the Servicer. Each such
subservicing agreement will be upon terms and conditions not inconsistent with
this Agreement and the other documents relating to a Securitized Financing and
as the Servicer and any such subservicer may agree and shall contain a
non-petition covenant substantially identical to that set forth in Section 6.14.
The Servicer shall provide the Titling Trustee with a copy of each such
subservicing agreement.
(e) Notwithstanding any subservicing agreement, any of the provisions of
this Agreement or the other documents relating to a Securitized Financing that
relate to agreements or arrangements between the Servicer and any subservicer or
reference to actions that are taken through a subservicer or otherwise, the
Servicer shall remain obligated and liable to the Titling Trust and the Titling
Trustee pursuant to Section 4.02 without diminution of such obligation or
liability by virtue of such delegation or by virtue of indemnification from any
subservicer, to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering the Contracts and Leased
Vehicles.
SECTION 4.06 SERVICING COMPENSATION. The Servicer shall receive such fees
and reimbursement for expenses with respect to the Titling Trust Assets relating
to a Sub-Trust as may be agreed to from time to time between the Servicer and
the related Beneficiary.
SECTION 4.07 POWERS OF ATTORNEY. The Servicer is hereby designated by
each Beneficiary, the Titling Trust, and the Titling Trustee as its true and
lawful attorney-in-fact, with full power and authority to perform any and all
acts related to managing, servicing, administering, collecting or repossessing
any part of the Titling Trust Assets and any and all acts otherwise required or
permitted to be performed by the Servicer pursuant to Section 4.01 or otherwise
under this Agreement and the other documents relating to a Securitized Financing
whether acting in its own name or in the name of the Titling Trust, the Titling
Trustee or any Beneficiary. The Servicer is hereby authorized and
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empowered to execute and deliver, on behalf and in the name of each Beneficiary,
the Titling Trust or the Titling Trustee, any and all instruments, certificates
or other documents relating thereto. The Servicer also has the right, power and
authority to designate in writing other persons and entities as true and lawful
attorneys-in-fact for and on its or their behalf to do anything that the
Servicer has the power to do under this Agreement and the other documents
relating to a Securitized Financing. Without limiting the generality of the
foregoing, the Servicer or any such person or entity designated by the Servicer
is hereby authorized and empowered by the Titling Trustee and the Titling Trust
to execute and deliver, on behalf of the Titling Trust and the Titling Trustee,
any and all applications for or duplicates of Certificates of Title in the name
of the Titling Trust or the Titling Trustee, on behalf of the Titling Trust, any
and all applications for registrations of vehicles and/or license plates, any
and all applications for transfers of Certificates of Title or registrations for
vehicles and/or license plates, and any and all other instruments, certificates
or other documents which the Servicer deems necessary or advisable to record,
hold or release title to and/or registration of motor vehicles in the name of
the Titling Trust or the Titling Trustee, as appropriate.
SECTION 4.08 PROTECTION OF TITLE TO TITLING TRUST.
(a) The Servicer shall maintain its computer systems so that its master
computer records (including any back-up archives) that refer to any Leased
Vehicles indicate clearly that legal title to such Leased Vehicle is held by the
Titling Trust or the Titling Trustee, on behalf of the Titling Trust, as
appropriate, as nominee holder of legal title for the related Beneficiary.
Indication of the legal title of the Titling Trust or the Titling Trustee, on
behalf of the Titling Trust, to a Leased Vehicle shall be deleted from or
modified on such computer systems when, and only when, legal title to such
Leased Vehicle is no longer owned by the Titling Trust or the Titling Trustee,
on behalf of the Titling Trust, for the benefit of the related Beneficiary.
(b) If at any time the Servicer or a Beneficiary proposes to sell, grant a
security interest in or otherwise transfer any interest in any Leased Vehicles
to any prospective purchaser, lender or other transferee, all computer tapes,
records or print-outs (including any restored from back-up archives) delivered
by the Titling Trustee to such prospective purchaser, lender or other transferee
that refers in any manner whatsoever to any Leased Vehicle shall indicate
clearly that legal title to such Leased Vehicle is held in the name of the
Titling Trust or the Titling Trustee, on behalf of the Titling Trust, for the
benefit of the related Beneficiary.
ARTICLE V
PAYMENTS
SECTION 5.01 PAYMENTS FROM TITLING TRUST ASSETS ONLY. All payments, if
any, to be made by the Titling Trustee or the Servicer under this Agreement or
any other documents relating to a Securitized Financing, other than (i)
indemnities of the Servicer pursuant to Section 4.02, (ii) payment of the
Titling Trustee's fees and expenses by the Servicer pursuant to Section 6.13 or
(iii) amounts owing by the Titling Trustee arising from its willful misfeasance,
bad faith or negligence,
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shall be made only from any then available collections and proceeds in respect
of the Titling Trust Assets or the SUBI Assets of the related Sub-Trust, as
appropriate, and only to the extent that the Titling Trustee or the Servicer
shall have received such collections and proceeds in respect thereof to make
such payments in accordance with the terms hereof. This Section is not intended
to override the waivers of limited liability by the Beneficiaries made in
Section 3.02.
SECTION 5.02 MANNER OF PAYMENT. All amounts payable to Beneficiaries
pursuant to this Agreement or any other document relating to a Securitized
Financing shall be paid or caused to be paid by the Titling Trustee or the
Servicer, as the case may be, to or for the account of the related Beneficiary
in immediately available funds by wire transfer or other method of same-day
transfer.
ARTICLE VI
THE TITLING TRUSTEE
SECTION 6.01 DUTIES AND POWERS OF TITLING TRUSTEE.
(a) The Titling Trustee and the Trust Agent undertake to perform such
duties and engage in such activities, and only such duties and activities, as
are specified in this Agreement, any SUBI Supplement or UTI Supplement, any
other amendment to this Agreement, SUBI Supplement or UTI Supplement, or as may
be directed by the Beneficiary in a manner not contrary to the terms hereof or
thereof from time to time, including in connection with (i) Securitized
Financings, (ii) sales of Contracts and other Titling Trust Assets to the extent
permitted by the terms of any existing Securitized Financings (so long as the
Certificate of Title of any Leased Vehicle so sold is amended to reflect the
transfer of ownership thereof from the Titling Trust or the Titling Trustee, on
behalf of the Titling Trust, as applicable, unless applicable law permits the
transfer of ownership of a motor vehicle without an amendment to the vehicle's
certificate of title) or (iii) activities ancillary thereto.
(b) Neither the Titling Trustee nor the Trust Agent shall engage in any
activities other than activities required or permitted by the provisions of this
Agreement. Except as provided in or permitted by this Titling Trust Agreement,
any UTI Supplement, any SUBI Supplement or any related SUBI Servicing
Supplement, neither the Titling Trustee nor the Trust Agent shall (i) issue
beneficial interests in the Titling Trust Assets or securities of the Titling
Trust other than the UTI and UTI Certificates and one or more SUBIs and SUBI
Certificates; (ii) borrow money on behalf of the Titling Trust; (iii) make loans
on behalf of the Titling Trust; (iv) invest in or underwrite securities; (v)
offer securities in exchange for Titling Trust Assets (other than UTI
Certificates and SUBI Certificates); (vi) repurchase or otherwise reacquire any
UTI Certificate or SUBI Certificate except as permitted by or in connection with
any Securitized Financing; or (vii) grant any security interest in or lien upon
any Titling Trust Assets.
(c) At the direction of the UTI Beneficiary or the Servicer and at the
expense of the Servicer, the Titling Trustee shall: (i) apply for and maintain
(or cause to be applied for and maintained) all licenses, permits and
authorizations necessary and appropriate for the Titling Trust
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or the Titling Trustee in carrying out the terms of this Agreement (including
receiving assignments of Contracts and causing Certificates of Title to reflect
the Titling Trust, or the Titling Trustee on behalf of the Titling Trust, as the
owner of the Leased Vehicles) in each jurisdiction that the UTI Beneficiary or
the Servicer reasonably deems appropriate; (ii) file (or cause to be filed) all
notices, reports and other required filings in each jurisdiction that the UTI
Beneficiary or the Servicer reasonably deems appropriate; (iii) file (or cause
to be filed) in each jurisdiction that the UTI Beneficiary or the Servicer
reasonably deems appropriate applications for Certificates of Title as are
necessary and appropriate so as to cause the Titling Trust or the Titling
Trustee, on behalf of the Titling Trust, to be recorded as the holder of legal
title of record of the Leased Vehicles and to execute and deliver to each Dealer
a power of attorney in order to allow such Dealers to so record the Titling
Trust or the Titling Trustee, on behalf of the Titling Trust, as the holder of
legal title to such Leased Vehicles; (iv) to the extent that the UTI Beneficiary
or the Servicer deems it necessary or useful to have a lien recorded on
Certificates of Title, file (or cause to be filed) in each jurisdiction that the
UTI Beneficiary or the Servicer reasonably deems appropriate, such applications
as are necessary to record upon each of the Certificates of Title an
Administrative Lien in favor of an Administrative Lienholder; (v) be, or cause
the Titling Trust to be, the assignee of the original Dealer/Obligee with
respect to the Contracts; and (vi) pay or cause to be paid all applicable taxes
and fees properly due and owing in connection with its activities.
(d) The Titling Trustee, or the Trust Agent on its behalf, shall establish
accounts and receive, maintain, invest and disburse funds in accordance with
Articles V and VII hereof and the SUBI Supplements.
(e) Neither any Beneficiary nor the Servicer shall direct the Titling
Trustee or the Trust Agent to take any action that (i) is inconsistent with the
purposes of the Titling Trust as set forth in Section 2.04 or (ii) would result
in the treatment of the Titling Trust or any SUBI Sub-Trust as an entity that is
taxable as an "association" for federal income tax purposes.
SECTION 6.02 DUTY OF CARE.
(a) In carrying out their duties hereunder, the Titling Trustee and the
Trust Agent each shall exercise the rights and powers vested in it only as set
forth in this Agreement. No provision of this Agreement shall be construed to
relieve the Titling Trustee or the Trust Agent from liability for their own
negligent actions, negligent failure to act, bad faith or willful misfeasance or
similar act or omission; provided, however, that:
(i) neither the Titling Trustee nor the Trust Agent shall be
personally liable for any action taken, suffered or omitted by it or any
error of judgment, in each case made in good faith by any officer of, or
any other employee of the Corporate Trust Office of, the Titling Trustee or
any Trust Agent, including the president, any vice-president, assistant
vice-president, trust officer, corporate secretary or assistant corporate
secretary or any other officer of the Titling Trustee or such Trust Agent
customarily performing functions similar to those performed by such
officers or to whom any corporate trust matter is referred because of such
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Person's knowledge of or familiarity with the particular subject, unless it
shall be proved that the Titling Trustee or Trust Agent was negligent or
acted with willful misfeasance in performing its duties in accordance with
the terms of this Agreement; and
(ii) neither the Titling Trustee nor the Trust Agent shall be
personally liable with respect to any action taken, suffered or omitted to
be taken in good faith in accordance with the express direction of the UTI
Beneficiary (to the extent relating to the Undivided Trust Interest) or the
holder or pledgee of a SUBI Certificate that is not the Titling Trustee or
a trust agent of the Titling Trustee in connection with a Securitized
Financing (to the extent relating to the SUBI evidenced thereby) relating
to the exercise of any trust, power or authority conferred upon the Titling
Trustee under this Agreement.
(b) Notwithstanding subsection (a) above, the Titling Trustee shall not be
required to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties under this Agreement, or in the exercise
of any of its rights or powers, if there shall be reasonable grounds for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Titling Trustee to
perform, or be responsible for the manner of performance of, any of the
obligations of a Servicer hereunder or under any related SUBI Servicing
Supplement except during such time, if any, as the Titling Trustee shall be
successor to, and be vested with the rights, duties, powers and privileges of,
any Servicer in accordance with the terms of this Agreement or any related SUBI
Servicing Supplement.
(c) Except for actions expressly authorized by this Agreement, a SUBI
Supplement, a UTI Supplement, or an amendment thereto, the Titling Trustee shall
take no action as to which the Titling Trustee has been notified by a
Beneficiary, or has actual knowledge, that such action would impair the
beneficial interests in the Titling Trust, would impair the value of any Titling
Trust Asset or would adversely affect the then outstanding credit rating issued
by a Rating Agency with respect to any class of securities issued in a
Securitized Financing.
(d) All information obtained by the Titling Trustee regarding the
administration of the Titling Trust, whether upon the exercise of its rights
under this Agreement or otherwise, shall be maintained by the Titling Trustee in
confidence and shall not be disclosed to any other Person other than to the
Trust Agent or an appropriate Beneficiary unless such disclosure is required by
any applicable law or regulation or pursuant to subpoena, or such information is
already otherwise publicly available.
SECTION 6.03 CERTAIN MATTERS AFFECTING THE TITLING TRUSTEE.
Except as otherwise provided in this Agreement:
(a) The Titling Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, officer's certificate, certificate
of auditors or any other certificate, statement,
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instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document reasonably believed by it to be genuine and to have been
signed or presented by an authorized signatory of the relevant party. In
particular, but without limitation, whenever in this Agreement it is provided
that the Titling Trustee shall receive or may rely on the instructions or
directions of a Beneficiary in connection with a Securitized Financing, any
written instruction or direction purporting to bear the signature of any officer
or authorized signatory of the Beneficiary, or the holder or pledgee of a UTI
Certificate or a SUBI Certificate in connection with a Securitized Financing
reasonably believed by it to be genuine may be deemed by the Titling Trustee to
have been signed or presented by the proper party.
(b) The Titling Trustee may consult with counsel, and any written opinion
of counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it under this Agreement in good faith
and in accordance with such opinion of counsel.
(c) The Titling Trustee shall be under no obligation to exercise any of
the discretionary rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or in relation
to this Agreement, at the request, order or direction of a Beneficiary in
connection with a Securitized Financing or any Beneficiary of the Titling Trust
pursuant to the provisions of this Agreement, unless such requesting Person(s)
shall have offered to the Titling Trustee reasonable security or indemnity
against the Liabilities that may be incurred therein or thereby.
(d) The Titling Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by a Beneficiary;
provided, however, that if the payment within a reasonable time to the Titling
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Titling Trustee, not
reasonably assured to the Titling Trustee by the security afforded to it by the
terms of this Agreement or any SUBI Supplement, the Titling Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a condition
to so proceeding; the reasonable expense of every such examination shall be paid
by the Person(s) requesting such examination or, if paid by the Titling Trustee,
shall be reimbursed as a Titling Trust expense upon demand.
(e) The Titling Trustee may execute any of the trusts or powers under this
Agreement or perform any duties under this Agreement either directly or by or
through agents or attorneys or one or more custodians and shall not be liable
for the negligence or willful misconduct of such agents or attorneys appointed
with due care. By way of illustration and not in limitation of the foregoing,
the Titling Trustee may from time to time enter into one or more Trust Agency
Agreements with such Trust Agents, including any Affiliate of the Titling
Trustee, as are by experience and expertise qualified to act in a trustee
capacity and otherwise acceptable to the UTI Beneficiary. Notwithstanding the
foregoing, the Titling Trustee shall replace any Trust Agent if (i) in the good
faith judgment of the UTI Beneficiary, the compensation or level of service of
such Trust Agent shall
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no longer be reasonably competitive with those of any alternative agent
reasonably proposed by the UTI Beneficiary, or (ii) if the Trust Agent has
materially breached its obligations under the Trust Agency Agreement, the UTI
Beneficiary or a Beneficiary in connection with a Securitized Financing has
given written notice to the Titling Trustee and the Trust Agent of such breach,
and the Trust Agent has not cured such breach in all material respects within 30
Business Days thereafter. Such Trust Agency Agreement shall specify the duties,
powers, liabilities, obligations and compensation of such Trust Agent(s) to
carry out on behalf of the Titling Trustee any or all of its obligations as
Titling Trustee of the Titling Trust arising under this Agreement or otherwise
and shall contain a non-petition covenant substantially identical to that set
forth in Section 6.14, provided, however, that nothing contained in any Trust
Agency Agreement shall excuse, limit or otherwise affect any power, duty,
obligation, liability or compensation otherwise applicable to the Titling
Trustee hereunder. The Titling Trustee hereby engages First Bank National
Association as its initial Trust Agent, and First Bank National Association by
its signature hereto accepts such engagement, with all provisions of this
Section 6.03(e) relating to Trust Agents constituting a Trust Agency Agreement
between First Bank National Association and the Titling Trustee, subject to any
amendment or supplement thereto between such parties not inconsistent herewith.
First Bank National Association shall carry out as Trust Agent each and every
obligation of the Titling Trustee hereunder and under any SUBI Supplement and is
hereby delegated by the Titling Trustee all power and authority delegable by the
Titling Trustee hereunder in order better to be able to carry out its duties as
Trust Agent.
SECTION 6.04 TITLING TRUSTEE NOT LIABLE FOR CERTIFICATES OR LOSSES.
The Titling Trustee shall have no obligation to perform any of the duties
of the Grantor or the Servicer unless explicitly set forth herein or in any SUBI
Supplement or related SUBI Servicing Supplement. The Titling Trustee shall at
no time have any responsibility or liability for or with respect to the (a)
legality, validity and enforceability of any security interest in any Trust
Asset; (b) the perfection or priority of such a security interest or the
maintenance of any such perfection and priority; (c) the efficacy of the Titling
Trust or its ability to generate the payments to be distributed to any
Beneficiary or its permitted assignee(s) under this Agreement, including the
existence, condition, location and ownership of any Trust Asset; (d) the
existence and enforceability of any Insurance Policy; (e) the existence and
contents of any Contract or any computer or other record thereof; (f) the
validity of the assignment of any Trust Asset to the Titling Trustee or of any
intervening assignment; (g) the completeness of any Contract; (h) the
performance or enforcement of any Contract; (i) the compliance by the Grantor or
any Servicer with any covenant or the breach by the Grantor or any Servicer of
any warranty or representation in any document and the accuracy of any such
warranty or representation prior to the Titling Trustee's receipt of notice or
other discovery of any noncompliance therewith or any breach thereof; (j) any
investment of monies by any Servicer or any loss resulting therefrom (it being
understood that the Titling Trustee shall remain responsible for any Titling
Trust Assets that it may hold); (k) the acts or omissions of any Dealer or any
other Person, the Grantor, any Servicer or any obligor under, or in connection
with the origination of, any Contract; (1) any action of any Servicer taken in
the name of the Titling Trustee; or (m) any action by the Titling Trustee taken
at the instruction of any Servicer; provided, however, that the foregoing shall
not relieve the Titling Trustee of its obligation to perform its duties under
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this Agreement. Except with respect to a claim based on the Titling Trustee's
or any Trust Agent's willful misconduct, bad faith or negligence, (i) no
recourse shall be had against the institution serving as Titling Trustee in its
individual capacity for any claim based on any provision of this Agreement, a
SUBI Supplement or UTI Supplement or any amendment thereof, a SUBI Certificate
or any Trust Asset or assignment thereof and (ii) the Titling Trustee shall not
have any personal obligation, liability or duty whatsoever to the UTI
Beneficiary or any other Person with respect to any such claim, and any such
claim shall be asserted solely against the Titling Trust Assets (subject to
Section 3.04) or any indemnitor who shall furnish indemnity as provided in this
Agreement. The Titling Trustee shall not be accountable for the use or
application by a Beneficiary of any SUBI Certificate or of the proceeds of such
SUBI Certificate, or for the use or application of any funds properly paid to
any Servicer hereunder or pursuant to any SUBI Servicing Supplement.
SECTION 6.05 INDEMNITY OF TITLING TRUSTEE AND TRUST AGENTS.
The Titling Trustee and any Trust Agent shall be indemnified and held
harmless out of and to the extent of the Titling Trust Assets with respect to
any Claim arising out of or incurred in connection with (a) any of the Titling
Trust Assets (including any Claim relating to any Contract, Leased Vehicle,
consumer fraud, consumer leasing act violation, misrepresentation, deceptive and
unfair trade practice, and any other claim arising in connection with any
Contract, personal injury or property damage claim arising with respect to any
Leased Vehicle or any claim with respect to any tax arising with respect to any
Titling Trust Asset) or (b) the Titling Trustee's or Trust Agent's acceptance or
performance of the trusts and duties contained in this Agreement or any Trust
Agency Agreement, with any allocation of such indemnification among the Titling
Trust Assets to be made as provided for in Section 3.04; provided, however, that
neither the Titling Trustee nor any Trust Agent shall be indemnified or held
harmless out of the Titling Trust Assets as to any Claim for which the Servicer
shall be expressly and solely liable hereunder or pursuant to any SUBI Servicing
Supplement (unless the Servicer shall not have paid such claim upon the final
determination of its liability therefor), (ii) incurred by reason of the Titling
Trustee's or such Trust Agent's willful misconduct, bad faith or negligence or
(iii) incurred by reason of the Titling Trustee's breach of its representations,
warranties or covenants herein or in any Transaction Document. The
Beneficiaries will indemnify, defend and hold harmless the Titling Trustee and
any Trust Agent for any such Claims that the Titling Trust Assets are
insufficient to satisfy, with any allocation of such indemnification among the
Beneficiaries to be made as provided for in Section 3.04. Such indemnification
shall be irrespective of any other indemnification provided to the Beneficiaries
under any other documents relating to a Securitized Financing.
SECTION 6.06 TITLING TRUSTEE'S RIGHT NOT TO ACT.
Notwithstanding anything to the contrary contained herein, the Titling
Trustee shall have the right to decline to act in any particular manner
otherwise provided for herein if the Titling Trustee, being advised in writing
by counsel, determines that such action may not lawfully be taken, or if the
Titling Trustee in good faith shall determine that such action would be illegal
or subject it to personal liability or, in the case of a direction from one or
more Beneficiaries, be prejudicial to the rights of
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other Beneficiaries; and provided further, that nothing in this Agreement shall
impair the right of the Titling Trustee to take any action deemed proper by the
Titling Trustee that is not inconsistent with such otherwise required acts.
SECTION 6.07 QUALIFICATION OF TITLING TRUSTEE.
Except as otherwise provided in this Agreement, the Titling Trustee under
this Agreement shall at all times (a) be a corporation organized under the laws
of one of the fifty states of the United States, the District of Columbia or the
Commonwealth of Puerto Rico (which corporation shall not be the Grantor or any
Affiliate thereof), (b) be authorized to exercise trust powers in the State of
Delaware as and to the extent contemplated herein or have appointed or, upon
advice of counsel that such appointment is necessary, promptly shall appoint a
Delaware Trustee that is so authorized, (c) have a principal place of business
in the State of Delaware or have appointed or, upon advice of counsel that such
appointment is necessary, promptly shall appoint a Delaware Trustee that has
such a principal place of business, (d) be qualified, or promptly will be
qualified, to do business as a foreign corporation in each of the Trust States
and (e) be otherwise acceptable to each Rating Agency rating any class of
securities at the request of the Grantor issued in connection with any
Securitized Financing and to any pledgee of a UTI Pledge (such acceptance by any
such pledgee not to be unreasonably withheld, delayed or conditioned).
SECTION 6.08 RESIGNATION OR REMOVAL OF TITLING TRUSTEE.
(a) The Titling Trustee may not at any time resign without the express
written consent of the Beneficiaries.
(b) If at any time the Titling Trustee shall cease to be qualified in
accordance with Section 6.07, or if any representation or warranty made by the
Titling Trustee pursuant to Section 6.12 or the Trust Agent pursuant to Section
6.15 shall prove to have been untrue in any material respect when made and shall
not have been cured within 45 days after any Beneficiary gives the Titling
Trustee written notice of such inaccuracy, but the Titling Trustee shall fail to
resign after written request therefor by any Beneficiary or pledgee of any UTI
Certificate or SUBI Certificate in connection with a Securitized Financing, or
if at any time the Titling Trustee shall be legally unable to act, or shall be
adjudged bankrupt or insolvent, or a receiver of the Titling Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Titling Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the UTI Beneficiary shall
remove the Titling Trustee. If the Titling Trustee is removed under the
authority of the immediately preceding sentence, the UTI Beneficiary shall
promptly appoint a successor Titling Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Titling
Trustee so removed and one copy to the successor Titling Trustee, together with
payment of all fees owed to the outgoing Titling Trustee.
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(c) Any resignation or removal of the Titling Trustee and appointment of a
successor Titling Trustee pursuant to any of the provisions of this section
shall not become effective until acceptance of appointment by the successor
Titling Trustee.
SECTION 6.09 SUCCESSOR TITLING TRUSTEE.
Any successor Titling Trustee appointed as provided in Section 6.08 shall
execute, acknowledge and deliver to the UTI Beneficiary, the Servicer and to its
predecessor Titling Trustee an instrument accepting such appointment under this
Agreement, and thereupon the resignation or removal of the predecessor Titling
Trustee shall become effective and such successor Titling Trustee, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of the Titling Trustee under this Agreement, with
like effect as if originally named as Titling Trustee. The predecessor Titling
Trustee shall deliver to the successor Titling Trustee all documents and
statements held by it under this Agreement, and the UTI Beneficiary and the
predecessor Titling 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 Titling Trustee all such rights, powers, duties
and obligations. No successor Titling Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Titling Trustee shall be eligible under the provisions of Section 6.07. Upon
acceptance of appointment by a successor Titling Trustee as provided in this
Section, the UTI Beneficiary shall mail notice of the successor of such Titling
Trustee under this Agreement to each pledgee or other Beneficiary of a UTI
Certificate or a SUBI Certificate. If the UTI Beneficiary fails to mail such
notice within ten days after acceptance of appointment by the successor Titling
Trustee, the successor Titling Trustee shall cause such notice to be mailed at
the expense of the UTI Beneficiary.
SECTION 6.10 MERGER OR CONSOLIDATION OF TITLING TRUSTEE.
The Titling Trustee shall not merge or consolidate with, or sell all or any
substantial part of its assets to any other Person, without the express written
consent of the UTI Beneficiary. Any such corporation (i) into which the Titling
Trustee may be merged or consolidated, (ii) which may result from any merger,
conversion, or consolidation to which the Titling Trustee shall be a party, or
(iii) which may succeed to the corporate business of the Titling Trustee, which
corporation executes an agreement of assumption to perform every obligation of
the Titling Trustee under this Agreement, shall be the successor of the Titling
Trustee hereunder, provided such corporation shall be eligible pursuant to
Section 6.07, without the execution or filing of any other instrument or any
further act on the part of any of the parties hereto other than the written
consent of the UTI Beneficiary. The Titling Trustee shall give reasonable
written notice to each SUBI Beneficiary and each Rating Agency of any such
merger or consolidation.
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SECTION 6.11 APPOINTMENT OF CO-TITLING TRUSTEE, SEPARATE TITLING TRUSTEE,
OR NOMINEE.
(a) Notwithstanding any other provisions of this Agreement, if at any time
the Titling Trustee determines that it is in the best interests of the Titling
Trust to take any action for the purpose of meeting any legal requirements of
any jurisdiction in which any Titling Trust Asset may at the time be located or
within which such Titling Trust Asset is to be acquired or for any other purpose
as so determined by the Titling Trustee, the Beneficiary of the Sub-Trust to
which such Trust Asset is allocated and the Titling Trustee, acting jointly,
shall have the power to execute and deliver all instruments to appoint one or
more Persons approved by the Titling Trustee and such Beneficiary to act as
co-trustee, jointly with the Titling Trustee, or as a separate trustee or
nominee holder of legal title, of all or any part of such Titling Trust Assets,
and to vest in such Person, in such capacity and for the benefit of such
Beneficiary and its permitted assignee(s), such title to such Titling Trust
Assets, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as such Beneficiary
and the Titling Trustee may consider necessary or desirable. No co-trustee,
separate trustee, or nominee holder of legal title under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 6.07, except that no co-trustee, separate trustee or nominee holder of
legal title under this Agreement may be the UTI Beneficiary or any Affiliate
thereof.
(b) Each separate trustee, co-trustee and nominee holder of legal title
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Titling Trustee shall be conferred upon and exercised or performed
by the Titling Trustee and such separate trustee, co-trustee or nominee
holder of legal title jointly (it being understood that such separate
trustee, co-trustee or nominee holder of legal title is not authorized to
act separately without the Titling Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed (whether as Titling Trustee under this
Agreement or as successor to any Servicer under this Agreement or any SUBI
Servicing Supplement), the Titling 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
Titling Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee, co-trustee or
nominee holder of legal title, but solely at the direction of the Titling
Trustee;
(ii) no trustee or nominee holder of legal title under this
Agreement shall be personally liable by reason of any act or omission of
any other trustee or nominee holder of legal title under this Agreement;
and
(iii) the Beneficiaries and the Titling Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee,
co-trustee or nominee holder of legal title.
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(c) Any notice, request or other writing given to the Titling
Trustee shall be deemed to have been given to each of the then separate
trustees, co-trustees and nominee holders of legal title, as effectively as
if given to each of them. Every instrument appointing any separate trustee,
co-trustee or other nominee holder of legal title shall refer to this
Agreement and the conditions of this Section. Each separate trustee,
co-trustee and nominee holder of legal title, upon its acceptance of the
trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Titling 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 Titling Trustee. Each such instrument shall be filed with the Titling
Trustee and a copy thereof given to the Servicer and each Beneficiary.
Any separate trustee, co-trustee or nominee holder of legal title may at
any time appoint the Titling Trustee its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its name. If any
separate trustee, co-trustee or nominee holder of legal title shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts relating to this Agreement and the Titling Trust
Assets shall vest in and be exercised by the Titling Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
Notwithstanding anything to the contrary in this Agreement, the appointment of
any separate trustee, co-trustee or nominee holder of legal title shall not
relieve the Titling Trustee of its obligations and duties under this Agreement.
(d) The parties hereto shall appoint a Delaware Trustee to serve as the
trustee of the Titling Trust in the State of Delaware pursuant to the
Co-Trustee Agreement for the sole purpose of satisfying the requirements of the
Delaware Act. The duties of such Delaware Trustee will be those expressly set
forth in the Co-Trustee Agreement.
SECTION 6.12 REPRESENTATIONS, WARRANTIES AND COVENANTS OF TITLING TRUSTEE.
The Titling Trustee hereby represents, warrants and covenants for the
benefit of the Grantor, each Beneficiary and each pledgee of a UTI Certificate
or SUBI Certificate:
(a) ORGANIZATION AND GOOD STANDING. The Titling Trustee is a corporation,
duly organized, validly existing and in good standing under the law of the State
of Delaware and is, or promptly will be, qualified to do business as a foreign
corporation and is, or promptly will be, in good standing in each state that is
a Trust State as of the date of this Agreement. The Titling Trustee shall
promptly take or cause to be taken all such actions and execute and file or
cause to be executed and filed all such instruments and documents, the cost of
which shall be a Titling Trust Expense, as may reasonably be required in order
for the Titling Trustee to qualify to do business and be in good standing in
each other State identified in writing from time to time by the Grantor or the
UTI Beneficiary.
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(b) POWER AND AUTHORITY. The Titling Trustee has full power, authority
and right to execute and deliver this Agreement, and has, or promptly will have,
full power and authority to perform its obligations hereunder in each state that
is a Trust State as of the date of this Agreement, and has taken all necessary
action to authorize the execution and delivery of this Agreement, and has taken,
or promptly will take, all necessary action to authorize performance by it of
this Agreement in each state that is a Trust State as of the date of this
Agreement.
(c) DUE EXECUTION. This Agreement has been duly executed and delivered by
the Titling Trustee, and is a legal, valid and binding instrument enforceable
against the Titling Trustee in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in effect,
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(d) NO CONFLICT. To the Titling Trustee's actual knowledge, neither the
execution and delivery of this Agreement nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default (with
notice or passage of time or both) under any provision of any law, governmental
rule, regulation, judgment, decree or order binding on the Titling Trustee (but
excluding any matters of consumer protection or credit laws as to which the
Titling Trustee has no actual knowledge and has conducted no independent
investigation) or the articles of incorporation or bylaws of the Titling Trustee
or any provision of any mortgage, indenture, contract agreement or other
instrument to which the Titling Trustee is a party or by which it is bound.
(e) SINGLE PURPOSE. The Titling Trustee has not engaged, is not currently
engaged, and will not engage during the term of this Agreement in any other
activity other than serving as Titling Trustee and in such ancillary activities
as are necessary and proper in order to act as Titling Trustee in accordance
with this Agreement, any SUBI Supplement or UTI Supplement, and any amendment
thereto or any of the other documents relating to a Securitized Financing.
SECTION 6.13 TITLING TRUSTEE'S FEES AND EXPENSES.
The Titling Trustee shall be paid out of Titling Trust Assets in the UTI
Portfolio reasonable compensation (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) and
reimbursement for all services rendered by it in the execution of the Titling
Trust and in the exercise and performance of any of the powers and duties under
this Agreement and the other documents relating to a Securitized Financing to
which it is a party, and as an expense of the Titling Trust, reimbursement of
all reasonable costs and expenses (including reasonable attorneys' fees and
expenses) of incorporation, qualification, periodic maintenance of its corporate
franchises and qualification, annual board of directors' meetings and all
necessary corporate filings, taxes (to the extent set forth in Section
4.02(a)(i)(B)) and fees.
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SECTION 6.14 NO PETITION.
Each of the Titling Trustee and First Bank National Association, as Trust
Agent, covenants and agrees that prior to the date which is one year and one day
after the date upon which all obligations under each Securitized Financing has
been paid in full, it will not institute against, or join any other Person in
instituting against, TMCC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal or
state bankruptcy or similar law. This Section shall survive the termination of
this Agreement or the resignation or removal of the Titling Trustee under this
Agreement.
SECTION 6.15 STOCK OF TMTT, INC.
First Bank National Association hereby represents, warrants and covenants,
for the benefit of the Grantor, each Beneficiary and each pledgee of a UTI
Certificate or SUBI Certificate, as follows:
(a) OWNERSHIP OF STOCK. All of the issued and outstanding Titling Trustee
Stock is owned by First Bank National Association, free and clear of any lien,
encumbrance or any other restriction, agreement or commitment of any kind (other
than as provided for in this Agreement) that would in any way restrict First
Bank National Association's ability freely to transfer, convey and assign the
Titling Trustee Stock. All such Titling Trustee Stock currently outstanding is
(and any Titling Trustee Stock that may be issued in the future will be) validly
issued, fully paid and nonassessable and has not been (and will not be) issued
in violation of any preemptive, first refusal or other subscription rights of
any Person. There are no outstanding options, warrants, conversion' rights,
subscription rights, preemptive rights, exchange rights or other rights,
agreements or commitments of any kind obligating First Bank National Association
to sell any Titling Trustee Stock or to issue any additional capital stock in
the Titling Trustee to any Person. First Bank National Association will not
issue any additional Titling Trustee Stock without the express written consent
of the UTI Beneficiary.
(b) TRANSFER OF TITLING TRUSTEE STOCK. For so long as First Bank National
Association is acting as a Trust Agent pursuant to this Agreement or any Trust
Agency Agreement, but subject to any applicable legal or regulatory
requirements, it will retain ownership of all of the Titling Trustee Stock. If
at any time (and for any reason, including First Bank National Association's
resignation or termination as Trust Agent or the termination of the Titling
Trust) First Bank National Association either is no longer acting as a Trust
Agent, is no longer able, because of legal or regulatory changes, to own the
Titling Trustee Stock, or the Titling Trustee would have to be removed pursuant
to Section 6.08 because of its being owned by First Bank National Association,
First Bank National Association will (i) notify the UTI Beneficiary of such
event and (ii) sell to the UTI Beneficiary's designee (who shall not be the UTI
Beneficiary or any Affiliate thereof), at the UTI Beneficiary's option, without
recourse except with respect to the representations, warranties and covenants of
the Titling Trustee and the Trust Agent contained herein, all of the Titling
Trustee Stock for the sum of Ten Dollars ($10). The UTI Beneficiary's designee
shall have sixty (60) days from the date of
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receipt of such notice in which to exercise such option and to consummate such
acquisition, during which time First Bank National Association shall refrain
from offering for sale or selling any Titling Trustee Stock to any Person other
than the UTI Beneficiary's designee. If the UTI Beneficiary's designee shall
not consummate such acquisition within such period, First Bank National
Association shall be free to offer for sale or sell to any Person any or all of
the Titling Trustee Stock or to dissolve the Titling Trustee; provided, however,
that a successor Titling Trustee shall have been appointed in accordance
herewith. If the UTI Beneficiary's designee shall timely exercise its option to
acquire the Titling Trustee Stock, First Bank National Association shall
promptly tender all such Titling Trustee Stock to such buyer at a time and place
determined by the buyer, duly endorsed in blank or with duly endorsed stock
powers attached, against payment of the purchase price. The UTI Beneficiary
shall pay any transfer or similar taxes arising from a transfer of the Titling
Trustee Stock as contemplated herein. If no designee of the UTI Beneficiary
shall be willing to purchase the Titling Trustee Stock as described above, then
the Titling Trustee and each Beneficiary shall have the right to petition a
court of competent jurisdiction to appoint a successor trustee meeting the
requirements for a successor trustee set forth herein.
ARTICLE VII
ACCOUNTS; CASH FLOWS; PERMITTED INVESTMENTS
SECTION 7.01 ACCOUNTS.
(a) Unless otherwise specified in the UTI Supplement, the Titling Trustee
will establish and maintain with respect to the Undivided Trust Interest a
Lease Funding Account satisfying the definition of an Eligible Account. The
Lease Funding Account shall be established and maintained in the name of the
Titling Trustee on behalf of the UTI Sub-Trust. None of the Grantor, any
Beneficiary or, subject to Section 7.02(c), the holder or pledgee of any UTI
Certificate or SUBI Certificate shall have any right to draw on the Lease
Funding Account without the express written consent of the Titling Trustee;
provided, however, that the Titling Trustee, with the express written consent of
the related UTI Beneficiary, shall so consent to the extent provided for in the
documentation relating to any Securitized Financing of such UTI Certificate or
SUBI Certificate. The Lease Funding Account shall only contain funds relating to
UTI Assets.
(b) For so long as the Monthly Remittance Conditions are satisfied, the
Servicer shall not be required to remit to the Lease Funding Account collections
in respect of any Titling Trust Assets allocable to the Lease Funding Account on
a daily basis but shall be entitled to retain such collections, without
segregation from its other funds, until the Business Day preceding the date
identified as a "Distribution Date" in the related UTI Supplement, at which time
the Servicer shall so remit all such collections in immediately available funds;
provided that (i) investments on which the Trust Agent is the obligor (including
repurchase agreements as to which it, in its commercial capacity, is liable as
principal), may mature on the Distribution Date, and (ii) investments made of
collections on deposit in a SUBI Collection Account in respect of the related
Contracts and Leased Vehicles may mature on such dates as specified by the
Titling Trustee at the Servicer's direction so
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as to maintain the availability of sufficient cash to make the payments
described in any SUBI Supplement or related SUBI Servicing Supplement.
Notwithstanding the foregoing, commencing with the first day of the first
period identified as a "Collection Period" in the related UTI Supplement or SUBI
Supplement, as the case may be, that begins at least two Business Days after the
day on which any Monthly Remittance Conditions cease to be satisfied and for so
long as the Monthly Remittance Conditions are not satisfied, all collections in
respect of the UTI Assets or the related SUBI Assets, as applicable, then held
by the Servicer shall be immediately so deposited and all such future
collections shall be so remitted by the Servicer to the appropriate account in
accordance with this Agreement or the related SUBI Servicing Supplement, as
applicable, on a daily basis within two Business Days after receipt thereof.
Each SUBI Servicing Supplement shall also provide (i) the terms on which any
other funds received by any Servicer, including funds transferred from any of
the SUBI Collection Accounts to the extent of (1) the net investment value (as
recorded on the books of the Titling Trust) of any Contracts and Leased Vehicles
allocated to a SUBI in a Trust Asset Transfer, (2) reimbursement of any Servicer
Advances provided for in any Securitized Financing with respect to such SUBI or
(3) funding for such SUBI's share of any allocable Titling Trust Expenses will
be deposited by the Servicer into the Lease Funding Account (or transferred
directly to the Servicer, Grantor or UTI Beneficiary directly, as appropriate)
and (ii) whether and under what circumstances any other funds received by the
Servicer with respect to a SUBI Asset, including income with respect to any
investment made in any SUBI Account, shall be deposited by the Servicer into an
appropriate SUBI Account.
(c) Except as otherwise provided in Section 7.03, a UTI Supplement or a
SUBI Supplement, all Titling Trust Expenses shall be paid out of the Lease
Funding Account or from monies held by the Servicer and allocable thereto or
distributable in respect thereof, including: (i) any reimbursement due to the
Servicer for payments from its own operating accounts in order to fund (A)
amounts due to Dealers in payment for the assignment to the Titling Trustee of
Contracts and Leased Vehicles occurring prior to the Titling Trustee's notice to
the Servicer to cease acquiring Contracts and Leased Vehicles on behalf of the
Titling Trustee given pursuant to Section 7.02(c)(ii) and (B) any other Advances
made by the Servicer with the consent of the Titling Trustee (to be given at the
direction of the UTI Beneficiary or in accordance with the terms of any
Securitized Financing), with respect to any Contract or Leased Vehicle, (ii)
Servicer fees (and expenses, if any, not covered by the Servicer fee under any
SUBI Servicing Supplement), (iii) Titling Trustee fees and expenses and (iv)
other Titling Trust Expenses, if any; provided, however, that, to the extent
that any Liability of the Titling Trustee or any Beneficiary is incurred in
respect of Affected Trust Assets allocated to one or more Sub-Trusts, then such
Liability shall be borne in accordance with Section 3.04, and the Titling
Trustee, at the direction of the Servicer, shall transfer periodically from the
related SUBI Collection Accounts to the Lease Funding Account each Sub-Trust's
appropriate share of such aggregate Liabilities of the Titling Trust.
Prior to the funding of the Lease Funding Account from collections on
outstanding Contracts or otherwise, the UTI Beneficiary will advance monies to
fund the origination of Contracts as described in the UTI Supplement. The UTI
Supplement or any SUBI Supplement may provide that
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all or any portion of the collections on the related UTI Assets or SUBI Assets
will be deposited in the Lease Funding Account or the related SUBI Lease Funding
Account for a period of time specified therein. Prior to the creation of a
SUBI, the expenses of the Titling Trust will be advanced by the UTI Beneficiary
or funded from collections on the Contracts in the UTI Portfolio, as more fully
described in the UTI Supplement. Thereafter, during any period during which
there are no monies on deposit in the Lease Funding Account, expenses of the
Titling Trust will be advanced by the UTI Beneficiary as and to the extent
provided in the UTI Supplement and each SUBI Supplement.
(d) All or a portion of the funds deposited into the Lease Funding Account
shall be separately invested by the Titling Trustee from time to time at the
direction of the UTI Beneficiary or its designee in any of the Permitted
Investments; provided, however, that should the terms of any Securitized
Financing impose any more stringent limits on the types or tenors of permitted
investments in the Lease Funding Account than are provided for in the definition
of Permitted Investments, such limits shall apply thereto for the period
specified in the related Transaction Documents. The Servicer is hereby made the
designee of the UTI Beneficiary for such purpose. All income, gain or loss from
investment of monies in the Lease Funding Account shall, unless otherwise
specified in the Transaction Documents with respect to any Securitized
Financing, be for the account of the UTI Beneficiary; provided that each such
investment shall be made in the name of the Titling Trustee, its nominee or its
Financial Intermediary. If at any time the relevant Beneficiary or its designee
shall not have given the Titling Trustee a timely investment directive with
respect to any account, the Titling Trustee shall invest and reinvest any monies
in such account(s) in a mutual fund offered by the Trust Agent or an Affiliate
thereof meeting the requirements of clause (i) of the definition of Permitted
Investments.
SECTION 7.02 RELATIONSHIP TO SECURITIZED FINANCINGS.
(a) All funds in each SUBI Collection Account (other than any DE MINIMIS
amount necessary to maintain the account), however derived, to the extent not
required to fund that SUBI's share of Trust Liabilities or to fund any Trust
Asset Transfer into that SUBI Sub-Trust as provided for in the related SUBI
Supplement, shall be reinvested or paid out in accordance with the terms and
provisions hereof or of such SUBI Supplement.
(b) A UTI Pledge shall be recognized by the Titling Trustee for purposes
of this Agreement only if the UTI Beneficiary shall have given the Titling
Trustee written notice of such UTI Pledge and the name and address of the
related pledgee. During any period in which the Titling Trustee has neither
received notice from any pledgee of a UTI Pledge nor otherwise obtained actual
knowledge to the effect that (i) there is any sum due with respect to any
Securitized Financing secured by a UTI Pledge not otherwise timely paid by a UTI
Beneficiary (after any applicable grace period), or (ii) there is any
outstanding and uncured other default by a UTI Beneficiary with respect to any
such Securitized Financing (after any applicable grace period), the Titling
Trustee, promptly upon receipt of a written demand therefor accompanied by a
determination by such UTI Beneficiary
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(or any Servicer on its behalf) as to the amount of Excess Funds, shall pay out
to such UTI Beneficiary upon its request the Excess Funds so requested.
(c) During any period as to which the Titling Trustee either has received
notice from any pledgee of a UTI Pledge or otherwise has obtained actual
knowledge that either of the defaults described in Sections 7.02(b)(i) and (ii)
has occurred and is continuing, the Titling Trustee shall (i) not create any new
SUBI, (ii) direct each Servicer not to accept any further assignments on behalf
of the Titling Trustee of Contracts or Leased Vehicles (other than as provided
for in Sections 7.03 and 7.04), and (iii) distribute to such pledgee of a UTI
Pledge, on demand, all Excess Funds that would otherwise be distributable to the
UTI Beneficiary.
SECTION 7.03 SUBI LEASE FUNDING ACCOUNTS.
In the event that for any reason (a) (i) a different Servicer shall be
engaged by the Titling Trustee to manage one or more SUBI Portfolios, on the one
hand, and the UTI Portfolio, on the other hand, or (ii) circumstances with
respect to any Securitized Financing secured by a UTI Pledge are such that (A)
the Titling Trustee has given to any Servicer the notice provided for in Section
7.02(c)(ii) or (B) if there is any outstanding UTI Pledge, the Titling Trustee
is notified that a Trust Asset Transfer into one or more SUBI Sub-Trusts would
cause a borrowing base deficiency (as defined in the documents related to such
Securitized Financing) to occur in any Securitized Financing secured by a UTI
Pledge, and (b) at such time the Titling Trustee, acting pursuant to any SUBI
Supplement or SUBI Servicing Supplement, would otherwise be causing its Servicer
to effect Trust Asset Transfers from the UTI Sub-Trust into one or more SUBI
Sub-Trusts: (1) the Titling Trustee shall establish and maintain in its name for
each SUBI a separate SUBI Lease Funding Account, (2) to the extent that the
Titling Trustee would, but for the conditions set forth in the foregoing clauses
(a) and (b), cause the transfer from any SUBI Collection Account to the Lease
Funding Account in connection with any Trust Asset Transfer, the Titling Trustee
shall instead cause the transfer of such funds from that SUBI Collection Account
to the SUBI Lease Funding Account established with respect to that SUBI, (3) the
Titling Trustee shall direct the Servicer then servicing the respective SUBI
Portfolio to acquire on behalf of the Titling Trust, for the account of that
SUBI Sub-Trust rather than for the UTI Sub-Trust, Contracts and Leased Vehicles
from Dealers, and (4) the Titling Trustee shall apply any such funds in any such
SUBI Lease Funding Account directly to reimburse the Servicer then servicing
that SUBI Portfolio for any payments made by it to Dealers in respect of such
Contracts and Leased Vehicles. In the event that Contracts and Leased Vehicles
are being acquired by any Servicer(s) on behalf of the Titling Trustee (on
behalf of the Titling Trust) both with respect to the UTI Sub-Trust and any SUBI
Sub-Trust simultaneously, the Titling Trustee shall first allocate all such
Contracts and Leased Vehicles to the SUBI Sub-Trusts until funds available for
such purpose in any SUBI Lease Funding Account shall be exhausted and then shall
allocate all remaining Contracts and Leased Vehicles to the UTI Sub-Trust.
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SECTION 7.04 REBALANCING AFTER THIRD PARTY CLAIM.
To the extent that a third party claim against Titling Trust Assets is
satisfied out of Titling Trust Assets in proportions other than as provided in
Section 3.04, then, notwithstanding anything to the contrary contained herein,
the Titling Trustee shall promptly identify and reallocate (or cause the
Servicer to identify and reallocate) the remaining Titling Trust Assets among
the UTI Sub-Trust and each of the SUBI Sub-Trusts so that each shall bear the
expense of the third party claim as nearly as possible as if the burden of such
claim had been allocated as provided in Section 3.04.
ARTICLE VIII
TERMINATION
SECTION 8.01 TERMINATION OF THE TITLING TRUST.
(a) This Agreement and the Titling Trust shall terminate upon the last to
occur of (i) the payment to the Beneficiaries and each permitted purchaser,
assignee and pledgee thereof of interests in the Titling Trust of all amounts
and obligations required to be paid to them, and the expiration or termination
of all Securitized Financings by their respective terms, and (ii) the maturity
or liquidation and the disposition of all Titling Trust Assets and the
disposition to the Beneficiaries or their permitted purchasers, assignees or
pledgees of all net proceeds thereof. Notwithstanding the foregoing, in no
event shall the trust created by this Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the Court of St. James,
living on the date of this Agreement.
(b) Upon the termination of the Titling Trust, (i) after satisfaction of
all creditors, if any, of the Titling Trust, the Titling Trustee shall
distribute the Titling Trust Assets to the Beneficiaries in accordance with this
Agreement and the outstanding UTI Supplements and SUBI Supplements; (ii) the
Beneficiaries to whom such Titling Trust Assets are distributed shall retitle or
cause to be retitled any Leased Vehicles so distributed to those Beneficiaries
and shall pay or cause to be paid all applicable titling and registration fees
and taxes; and (iii) the Titling Trustee shall file or cause to be filed a
certificate of cancellation with the Delaware Secretary of State pursuant to
Section 3810(c) of the Delaware Act.
SECTION 8.02 TERMINATION AT THE OPTION OF BENEFICIARY. Notwithstanding the
provisions of Section 8.01, the Titling Trust shall be deemed terminated, solely
with respect to the Titling Trust Assets allocated to the related Sub-Trust, and
not as to any of the Titling Trust Assets allocated to any other Sub-Trust, upon
the written direction to the Titling Trustee by any Beneficiary with respect to
such Sub-Trust to revoke and terminate such portion of the Titling Trust. Upon
such termination of the Titling Trust with respect to such a Sub-Trust, the
Titling Trustee shall distribute to the Beneficiary for such Sub-Trust all
Titling Trust Assets allocated to such Sub-Trust and shall cause the
Certificates of Title to the Leased Vehicles allocated to such Sub-Trust to be
issued in the name
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of, or at the direction of, such Beneficiaries. The Beneficiary to whom such
Titling Trust Assets are distributed shall then pay or cause to be paid all
applicable titling and registration fees and taxes.
SECTION 8.03 TITLING TRUSTEE ACTIONS UPON TERMINATION. Upon termination of
this Agreement, the Titling Trust and/or one or more Sub-Trusts pursuant to
Section 8.01 or 8.02, the Titling Trustee shall take such action as may be
requested by any Beneficiary to transfer the related Titling Trust Assets to
such Beneficiary or such other Person as such Beneficiary may designate,
including the execution of the assignment forms on the Certificates of Title and
any other instruments of transfer and assignment with respect to the Leased
Vehicles.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01 AMENDMENT. Prior to the first Securitized Financing, this
Agreement may be amended by written agreement between the UTI Beneficiary and
the Titling Trustee to correct or supplement any provision in this Agreement, to
cure any ambiguity, and to add, change or eliminate any other provision of this
Agreement with respect to matters or questions arising under this Agreement.
After the first Securitized Financing, any such amendment shall also require
such additional approvals, if any, as are required under documents relating to
each Securitized Financing.
SECTION 9.02 GOVERNING LAW. This Agreement shall in all respects be
governed by and construed in accordance with the internal laws of the State of
Delaware, without reference to its conflicts of laws provisions, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
SECTION 9.03 NOTICES. All demands, notices and communications under this
Agreement shall be in writing and shall be delivered or mailed by registered or
certified first class United States mail, postage prepaid, return receipt
requested; hand delivery; prepaid courier service; or telecopier, and addressed
in each case as follows: (a) if to the Grantor or UTI Beneficiary, at Toyota
Motor Credit Corporation, 19001 S. Western Avenue, Torrance, California 90509,
Attention: Corporate Treasury Manager (Telecopier No. (310) 787-6194), (b) if to
the Titling Trustee, at TMTT, Inc., care of First Bank National Association, 111
East Wacker Drive, Suite 3000, Chicago, Illinois 60601, Attention: Toyota Lease
Trust (at Telecopier No. (312) 228-9401), and (c) if to the Trust Agent, First
Bank National Association, 111 East Wacker Drive, Suite 3000, Chicago, Illinois
60601, Attention: Corporate Trust Office (at Telecopier No. (312) 228-9401) or
at such other address as shall be designated by the Grantor or Beneficiary, the
Titling Trustee or the Trust Agent in written notice to the other parties
hereto. Delivery shall occur only upon actual receipt or rejected tender of
such communication by an officer of the recipient entitled to received such
notices located at the address of such recipient for notices hereunder. A copy
of all notices to the Titling Trustee shall be delivered to First Bank National
Association for so long as it is a Trust Agent.
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SECTION 9.04 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of any Certificates
or the rights of the holders thereof.
SECTION 9.05 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original, but all of which counterparts shall together constitute but one and
the same instrument.
SECTION 9.06 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained in this Agreement shall be binding upon, and inure to the benefit of,
the parties hereto and their permitted successors and assigns and the
Beneficiaries and their respective permitted successors and assigns. Any
request, notice, direction, consent, waiver or other instrument or action by a
Beneficiary shall bind the successors and assigns of such Beneficiary.
SECTION 9.07 TABLE OF CONTENTS AND HEADINGS. The Table of Contents and
Article and Section headings are for convenience of reference only and shall not
define or limit any of the terms or provisions hereof.
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IN WITNESS WHEREOF, TMCC, the Titling Trustee and, solely for the limited
purposes set forth herein, First Bank National Association, as Trust Agent, have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
TOYOTA MOTOR CREDIT CORPORATION, as Grantor,
Initial Beneficiary and Servicer
By: /s/ George Borst
-------------------------------------
Name: George Borst
Title: Senior Vice President and General
Manager
TMTT, Inc., as Titling Trustee
By: /s/ Steven E. Charles
-------------------------------------
Name: Steven E. Charles
Title: Vice President
FIRST BANK NATIONAL ASSOCIATION,
as Trust Agent
By: /s/ Steven E. Charles
-------------------------------------
Name: Steven E. Charles
Title: Vice President
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EXHIBIT A
FORM OF UTI SUPPLEMENT
A-1
<PAGE>
EXHIBIT B
FORM OF SUBI SUPPLEMENT
B-1
<PAGE>
EXECUTION COPY
- --------------------------------------------------------------------------------
TOYOTA MOTOR CREDIT CORPORATION
TMTT, INC.,
as Trustee of Toyota Lease Trust
and,
for Certain Limited Purposes only,
FIRST BANK NATIONAL ASSOCIATION,
as Trust Agent
UTI SUPPLEMENT
TO
AMENDED AND RESTATED
TRUST AND SERVICING AGREEMENT
Dated as of October 1, 1996
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE X
DEFINITIONS
SECTION 10.01 Definitions.. . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE XI
CREATION AND TERMINATION OF TRUST INTERESTS
SECTION 11.01 Initial Creation of UTI, Subdivision Thereof. . . . . . . . . 4
SECTION 11.02 Issuance and Form of UTI Certificates.. . . . . . . . . . . . 5
SECTION 11.03 Filings.. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 11.04 Termination of UTI. . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE XII
ACCOUNTS AND CASH FLOWS
SECTION 12.01 Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 12.02 Cash Flows. . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 12.03 Distribution of Funds, Default in UTI Pledge. . . . . . . . . 8
SECTION 12.04 Lease Funding Accounts. . . . . . . . . . . . . . . . . . . . 9
SECTION 12.05 Rebalancing After Third Party Claims. . . . . . . . . . . . .10
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Governing Law.. . . . . . . . . . . . . . . . . . . . . . . .10
SECTION 13.02 Effect of UTI Supplement on Trust Agreement.. . . . . . . . .10
SECTION 13.03 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . .10
SECTION 13.04 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . .11
EXHIBITS
EXHIBIT A Form of Direction to Create UTI Unit . . . . . . . . . . . . . A-1
EXHIBIT B Form of Direction to Reallocate UTI Unit Assets. . . . . . . . B-1
EXHIBIT C Form of [Residual] UTI [Unit] Certificate. . . . . . . . . . . C-1
EXHIBIT D Forms of Contract. . . . . . . . . . . . . . . . . . . . . . . D-1
EXHIBIT E Form of Dealer Agreement . . . . . . . . . . . . . . . . . . . E-1
<PAGE>
UTI SUPPLEMENT TO AMENDED AND RESTATED
TRUST AND SERVICING AGREEMENT
UTI SUPPLEMENT TO AMENDED AND RESTATED TRUST AND SERVICING AGREEMENT, dated
and effective as of October 1, 1996, among TOYOTA MOTOR CREDIT CORPORATION, a
California corporation (in its capacities as grantor, initial beneficiary and
servicer), TMTT, INC., a Delaware corporation, as Titling Trustee, and for
certain limited purposes only, FIRST BANK NATIONAL ASSOCIATION, a national
banking association, as Trust Agent.
RECITALS
A. TMCC, the Titling Trustee and the Trust Agent have entered into that
certain Trust and Servicing Agreement, as the same was amended and restated
pursuant to that certain Amended and Restated Trust and Servicing Agreement,
each dated as of October 1, 1996 (collectively, the "Titling Trust Agreement"),
pursuant to which the Grantor and the Titling Trustee formed Toyota Lease Trust,
a Delaware business trust, for the purpose of taking assignments and conveyances
of, holding in trust and dealing in, various Titling Trust Assets in accordance
with the Titling Trust Agreement.
B. The Titling Trust Agreement contemplates that all Titling Trust
Assets, other than those from time to time identified on the Titling Trust's
books and records by the Titling Trustee on behalf of the Titling Trust and at
the direction of the UTI Beneficiary, as SUBI Assets allocated to separate SUBI
Sub-Trusts, shall constitute UTI Assets, and that the Titling Trustee shall
create an undivided trust interest therein and issue to the UTI Beneficiary a
UTI Certificate evidencing such UTI, and the UTI Beneficiary and its permitted
assignees generally will be entitled to the proceeds of, including the net cash
flow arising from, but only from, the UTI Assets.
C. The parties hereto desire to supplement the terms of the Titling
Trust Agreement to cause the Titling Trustee, at the direction of the UTI
Beneficiary, to identify the UTI Portfolio and to allocate the related Titling
Trust Assets to the UTI Sub-Trust and to create and issue to the UTI Beneficiary
one or more UTI Certificates that collectively evidence the entire beneficial
interest in the UTI, and to set forth the terms and conditions thereof.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and in the Titling Trust Agreement, the parties hereto agree to
the following supplemental obligations and provisions with regard to the UTI
Portfolio:
<PAGE>
ARTICLE X
DEFINITIONS
SECTION 10.01 DEFINITIONS.
For all purposes of this UTI Supplement, except as otherwise expressly
provided or unless the context otherwise requires, capitalized terms used and
not otherwise defined herein shall have the meanings ascribed thereto in the
Annex of Definitions attached to the Titling Trust Agreement for all purposes of
this UTI Supplement. In the event of any conflict between a definition set
forth herein and that set forth in the Annex of Definitions, that set forth
herein shall prevail. All terms used in this UTI Supplement include, as
appropriate, all genders and the plural as well as the singular. All references
such as "herein", "hereof" and the like shall refer to this UTI Supplement as a
whole and not to any particular article or section within this UTI Supplement.
All references such as "includes" and variations thereon shall mean "includes
without limitation" and references to "or" shall mean "and/or". Any reference
herein to the "Titling Trustee, acting on behalf of the Titling Trust", or words
of similar import, shall be deemed to mean the Titling Trustee, acting on behalf
of Toyota Lease Trust and all beneficiaries thereof.
ARTICLE XI
CREATION AND TERMINATION OF TRUST INTERESTS
SECTION 11.01 INITIAL CREATION OF UTI, SUBDIVISION THEREOF.
(a) Pursuant to Section 3.01(b) of the Titling Trust Agreement, all
Titling Trust Assets (including without limitation Contracts and Leased
Vehicles), other than any Titling Trust Assets denominated as SUBI Assets from
time to time in accordance with Section 3.01(c) of the Titling Trust Agreement,
shall constitute UTI Assets. All Contracts and Leased Vehicles that are
included as UTI Assets shall be, for so long as they remain UTI Assets, "UTI
Contracts" and "UTI Leased Vehicles", respectively, and collectively shall
comprise the "UTI Portfolio". The UTI Assets also shall include: the Lease
Funding Account, including all cash and Permitted Investments therein and all
income from the investment of funds therein; all Insurance Policies and rights
thereunder to the extent applicable to the UTI Portfolio, including the right to
proceeds therefrom with respect to the UTI Portfolio or obligors with respect
thereto, as the case may be; the right to receive the proceeds of all Dealer or
other repurchase obligations, if any, relating to the UTI Portfolio; and all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or other property.
(b) Also pursuant to Section 3.01(b) of the Titling Trust Agreement, the
beneficial interest in the UTI Assets shall constitute the UTI. The UTI shall
represent an undivided beneficial interest solely in the UTI Assets.
(c) Upon the written direction of the UTI Beneficiary to the Titling
Trustee (in substantially the form attached as Exhibit A) in connection with a
UTI Pledge or otherwise, the
2
<PAGE>
Titling Trustee shall from time to time identify and allocate or cause to be
identified and allocated on the books and records of the Titling Trust one or
more separate sub-portfolios of UTI Assets, to be so identified and allocated by
date of origination, lease number and original principal balance, but otherwise
not accounted for independently within the UTI Portfolio, which shall be
represented by one or more UTI Unit Certificates (as defined in Section
11.02(a)), with the residual UTI Assets and the residual UTI Portfolio being
represented by the Residual UTI Certificate.
All UTI Assets not allocated or identified as UTI Unit Assets shall remain
as Residual UTI Assets until allocated as UTI Unit Assets or SUBI Assets. Upon
such allocation as UTI Unit Assets or SUBI Assets, such Residual UTI Assets
shall no longer be assets of, or allocated to, the Residual UTI Portfolio,
unless and until specifically reallocated to the Residual UTI Portfolio from
that UTI Unit Portfolio or SUBI Portfolio pursuant to a written direction from
the holder of the related UTI Unit Certificate or SUBI Certificate, as
applicable, to the Titling Trustee. Each such direction to reallocate UTI Unit
Assets or SUBI Assets to the Residual UTI Portfolio, and each similar direction
to allocate UTI Unit Assets or UTI Residual Assets to a SUBI Portfolio, shall be
in substantially the form attached as Exhibit B. The undivided beneficial
interest in each such UTI Unit Portfolio shall constitute a separate subdivision
of the Undivided Trust Interest (each, a "UTI Unit"); the undivided interest in
the Residual UTI Portfolio shall constitute a separate subdivision of the UTI
(the "Residual UTI Unit"); and the Residual UTI Unit and any UTI Units
outstanding from time to time collectively shall comprise the UTI.
The Titling Trustee shall distribute to or upon the order of the UTI
Beneficiary one or more UTI Units, each UTI Unit representing a specific
undivided interest in (but only in) such identified UTI Unit Portfolio and the
UTI Unit Assets allocated thereto from time to time.
Before any UTI Unit Certificate is issued, Section 2.07 of the Titling
Trust Agreement must be amended, if and to the extent, that the issuance of the
UTI Unit Certificate and its possible transfer could result in the UTI
Beneficiary and the holders of the UTI Unit Certificates being two different
entities.
(d) The UTI Beneficiary shall at all times maintain a minimum net worth
of at least $5,000,000 (excluding the value of any UTI Certificate(s) or SUBI
Certificates held thereby).
SECTION 11.02 ISSUANCE AND FORM OF UTI CERTIFICATES.
(a) The UTI initially shall be represented by a single trust certificate
(together with any replacements thereof, the "Residual UTI Certificate"). Upon
the written direction described above in Section 11.01(c), the UTI thereafter
shall be represented by the Residual UTI Certificate and any additional trust
certificate representing each UTI Unit to be formed (together with any
replacements thereof, a "UTI Unit Certificate") and such previous UTI Unit
Certificates as may have been issued and not retired. All such trust
certificates shall constitute "UTI Certificates" within the meaning of Section
3.01(b) of the Titling Trust Agreement. The Residual UTI Certificate, and each
other UTI Certificate shall be in substantially the form of Exhibit C attached
hereto, with such appropriate
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insertions, omissions, substitutions and other variations as are required by
this UTI Supplement, and may have such letters, numbers or other marks of
identification and such legends and endorsements placed thereon as may,
consistently herewith and with the Titling Trust Agreement, be directed by the
UTI Beneficiary. Each UTI Certificate shall be printed, lithographed,
typewritten, mimeographed, photocopied or otherwise produced or may be produced
in any other manner as may, consistently herewith and with the Titling Trust
Agreement, be determined by the UTI Beneficiary.
(b) Each UTI Certificate shall contain (i) an express written waiver of
any claim by any holder thereof to any assets of the Titling Trustee and to all
of the Titling Trust Assets or proceeds thereof other than the UTI Unit Assets
or Residual UTI Assets, as the case may be, represented by such UTI Certificate,
and those proceeds or assets derived from or earned by such UTI Assets, and (ii)
an express subordination in favor of the holder of each SUBI Certificate (or
pledgee thereof) by any holder or pledgee of a UTI Certificate to any claim to
any SUBI Asset that, notwithstanding such holder's or pledgee's disclaimer, may
be determined to exist.
(c) Neither any interest in the UTI nor any UTI Certificate may be
transferred or assigned by the UTI Beneficiary other than as contemplated
herein, and any such purported transfer or assignment shall be deemed null, void
and of no effect. However, any UTI Certificates and the Residual UTI
Certificate may be pledged, and a security interest therein granted, and may be
transferred or assigned absolutely to or by the pledgee thereof, solely in
connection with exercise of remedies with respect to a default under or with
respect to any Securitized Financing secured thereby or any UTI Pledge secured
thereby; provided that each pledgee or transferee must (i) give a non-petition
covenant substantially similar to that set forth in Section 6.14 of the Titling
Trust Agreement, and (ii) execute an agreement between or among itself, each
other assignee or pledgee from time to time of the UTI or any UTI Certificate,
and each assignee or pledgee from time to time of any SUBI or SUBI Certificate,
to release all claims to the SUBI Assets and, in the event that such release is
not given effect, to fully subordinate all claims it may be deemed to have
against the SUBI Assets.
SECTION 11.03 FILINGS.
The Grantor, the UTI Beneficiary (if different from the Grantor) and the
Titling Trustee, as directed by and at the expense of the Grantor or the UTI
Beneficiary, will undertake all other and future actions and activities as may
be deemed reasonably necessary by the Grantor or the UTI Beneficiary to perfect
(or evidence) and confirm the foregoing allocations of Titling Trust Assets to
the UTI Portfolio, including without limitation filing or causing to be filed
UCC financing statements and executing and delivering all related filings,
documents or writings as may be deemed reasonably necessary by the Grantor or
the UTI Beneficiary hereunder or for such purposes under any other documents
relating to any Securitized Financing involving the UTI or a UTI Pledge;
provided, however, that in no event will the Grantor, the UTI Beneficiary or the
Titling Trustee be required to take any action to perfect (i) any allocation of
UTI Assets to a UTI Unit Portfolio or (ii) any security interest that may be
deemed to be held by any party in any UTI Leased Vehicle. The Grantor and the
UTI Beneficiary each hereby revocably makes and appoints each of the Titling
Trustee and the
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Servicer from time to time of the UTI Portfolio, and any of the respective
officers, employees or agents, as the true and lawful attorney-in-fact of the
Grantor and the UTI Beneficiary, which appointment is coupled with an interest
and is revocable (but, in the case of the Servicer, is made only for so long as
such Servicer is acting in such capacity) with power to sign on behalf of the
Grantor or the UTI Beneficiary any financing statements, continuation
statements, security agreements, assignments, affidavits, letters of authority,
notices or similar documents necessary or appropriate
SECTION 11.04 TERMINATION OF UTI.
In connection with the termination of the Titling Trust Agreement and the
Titling Trust, upon the direction of the UTI Beneficiary and the consent of any
pledgee of a UTI Pledge, the UTI shall be terminated and the UTI Certificates
shall be returned to the Titling Trustee and canceled thereby.
ARTICLE XII
ACCOUNTS AND CASH FLOWS
SECTION 12.01 ACCOUNTS.
(a) On the date of the creation of the first SUBI, the Titling Trustee
will establish, and for so long as may be required by the provisions of any SUBI
Supplement, the Titling Trustee will maintain with respect to the UTI the UTI
Collection Account and Lease Funding Account (collectively, the "UTI Accounts")
described in Section 7.01(a) of the Titling Trust Agreement. All amounts that
are held in the UTI Collection Account shall be invested in Permitted
Investments in accordance with Section 12.02 of this UTI Supplement until
distributed or otherwise applied in accordance with the Titling Trust Agreement
or this UTI Supplement.
(b) The UTI Accounts shall relate solely to the UTI and the UTI
Portfolio and any funds held therein shall not be commingled with any other
monies, except as otherwise provided for or contemplated in the Titling Trust
Agreement as supplemented by this UTI Supplement. SUBI Accounts established
pursuant to any SUBI Supplement shall relate solely to the respective SUBI's and
SUBI Portfolios. The Titling Trustee, as directed by the Servicer, will account
for and record separately all proceeds that are received by the Titling Trustee
relating to each of the Titling Trustee Accounts from the Titling Trust Assets.
(c) For so long as TMCC shall be the Servicer, the Servicer and the
Titling Trustee may make any remittances pursuant to this Article net of amounts
to be distributed to such remitting party from the Lease Funding Account or the
UTI Collection Account. In particular, unless otherwise specified in any SUBI
Supplement, advances by the UTI Beneficiary or the Servicer with respect to the
funding of Contracts or the payment of Titling Trust Expenses, and the
reimbursement of such advances from collections on the Contracts, the proceeds
of any Securitized Financing or otherwise, will not require deposit of funds
into the Lease Funding Account or UTI Collection Account, and
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may in each case be made by using funds that have been commingled with other
funds. Nonetheless, each such party shall account for all of the above
described remittances and distributions as if the amounts were deposited and/or
transferred separately rather than on a net basis.
SECTION 12.02 CASH FLOWS.
(a) Subject to Section 7.01(b) of the Titling Trust Agreement and
Sections 12.04 and 12.05 hereof, and except as otherwise provided herein, in any
SUBI Supplement or in any related SUBI Servicing Supplement, the Servicer or
Titling Trustee shall deposit as described in Section 7.01(b) of the Titling
Trust Agreement all collections and proceeds received by the Servicer with
respect to any Contract or Leased Vehicle, whether from regular periodic
payments by obligors under a Contract sent to a Servicer lock box or from any
other payments from such obligors or any other Persons received in any other way
by the Servicer. All such collections and proceeds shall be identified by the
Servicer as related either to (i) Contracts and Leased Vehicles in a particular
SUBI Portfolio or (ii) Contracts and Leased Vehicles remaining as part of the
UTI Portfolio and shall be deposited by the Servicer into the appropriate SUBI
Collection Account to the extent they relate to any SUBI Portfolio and into the
UTI Collection Account (or simply paid to the UTI Beneficiary by the Servicer if
the UTI Beneficiary and the Servicer are not the same person) to the extent they
relate to the UTI Portfolio.
(b) Except as provided in Sections 12.01, 12.04 and 12.05 of this UTI
Supplement, or as provided in any SUBI Supplement or related SUBI Servicing
Supplement, the Titling Trustee shall, at the direction of the Servicer, make,
or cause to be made, the following payments and transfers on each Distribution
Date from the UTI Collection Account or the appropriate SUBI Accounts (as and
to the extent specified in the related SUBI Supplement, SUBI Servicing
Supplement or Securitization Trust Agreement) in the following order and
priority: (i) to or on behalf of the Servicer, all Servicer Expenses incurred
during the related Collection Period, together with any unreimbursed Servicer
Expenses incurred in one or more prior Collection Periods; (ii) to or on behalf
of the Servicer, all Servicing Fees incurred during the related Collection
Period, together with any unpaid Servicing Fees incurred in one or more prior
Collection Periods; (iii) to or on behalf of the Person to whom due, all Titling
Trust Expenses incurred during the related Collection Period, together with any
unpaid Titling Trust Expenses incurred in one or more prior Collection Periods;
and (iv) to or upon the direction of the UTI Beneficiary, any remaining funds
therein.
(c) Except as provided in Sections 12.04 and 12.05 of this UTI
Supplement, or as provided in any SUBI Supplement or related SUBI Servicing
Supplement, the Titling Trustee shall, at the direction of the Servicer, make,
or cause to be made (or permit the allocation by the Servicer with respect to
monies held by the Servicer), on each Funding Advance Reimbursement Date,
payment from the Lease Funding Account (or from monies held by the Servicer and
allocable or distributable therefor) to or on behalf of the Servicer, the
related Funding Advance Reimbursement Amount, together with any unreimbursed
Funding Advance Reimbursement Amounts incurred in one or more prior Collection
Periods.
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(d) Unless this UTI Supplement is amended to reflect a different
arrangement specified in any one or more SUBI Supplements, the allocation of
Liabilities of the Titling Trust, including with respect to any Affected Trust
Assets, shall be as specified in Section 3.04 of the Titling Trust Agreement.
SECTION 12.03 DISTRIBUTION OF FUNDS, DEFAULT IN UTI PLEDGE.
(a) On any date during any period in which the Titling Trustee has neither
received notice from the Servicer or any pledgee of a UTI Pledge nor otherwise
obtained actual knowledge to the effect that (i) there is any sum due with
respect to the related Securitized Financing or other UTI Pledge not otherwise
timely paid by the UTI Beneficiary (after any applicable grace period), (ii)
there is any other outstanding and uncured default by the UTI Beneficiary with
respect thereto (after any applicable grace period), or (iii) any reimbursements
of Funding Advances due to the Servicer have not been made, the Titling Trustee,
promptly upon receipt of a written demand therefor from the related UTI
Beneficiary accompanied by a written determination by the Servicer as to the
extent of Excess Funds in the Lease Funding Account, shall pay out to such UTI
Beneficiary upon its request any or all Excess Funds so requested.
(b) Notwithstanding subsection (a) above, or any direction of the Grantor,
the UTI Beneficiary or the Servicer to the contrary, during any period as to
which the Titling Trustee either has received notice from the Servicer or any
pledgee of a UTI Pledge or otherwise has obtained actual knowledge that a
default in connection therewith has occurred and is continuing, and the Titling
Trustee has not received notice of correction or cure thereof and other
assurances and indemnifications reasonably satisfactory to it with respect to
such correction or cure, the Titling Trustee shall (i) not create any new SUBI,
(ii) direct each Servicer not to accept any further assignments on behalf of the
Titling Trustee of Contracts or Leased Vehicles except as provided for in
Sections 3.04, 7.02, 7.03 and 7.04 of the Titling Trust Agreement and Section
12.04 of this UTI Supplement, and (iii) distribute to the relevant pledgee of
the UTI Pledge to which such default relates, on demand, all Excess Funds that
would otherwise be distributable to the UTI Beneficiary up to the amount
necessary to cure any such default. The Grantor, UTI Beneficiary and Servicer
each hereby agrees to and ratifies each such action on the part of the Titling
Trustee, and covenants not to give the Titling Trustee contrary instructions or
directions.
(c) If for any reason circumstances with respect to any Securitized
Financing or other UTI Pledge are such that the Titling Trustee has given to any
Servicer the notice provided for in subsection (b)(ii) above, the Titling
Trustee shall take the actions set forth in Section 12.04 of this UTI
Supplement.
SECTION 12.04 LEASE FUNDING ACCOUNTS.
In the event that for any reason (a) (i) a different Servicer shall be
engaged by the Titling Trustee to manage one or more SUBI Portfolios, on the one
hand, and the UTI Portfolio, on the other hand, or (ii) the Titling Trustee has
actual knowledge that circumstances with respect to any
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Securitized Financing secured by a UTI Pledge are such that a Trust Asset
Transfer into one or more SUBI Portfolios would cause a borrowing base
deficiency (as defined in the documents related to such Securitized Financing or
UTI Pledge) or similar default to occur with respect to such Securitized
Financing or UTI Pledge, and (b) at such time the Titling Trustee, acting
pursuant to any SUBI Supplement, would otherwise be causing the related Servicer
to effect Trust Asset Transfers from the UTI Portfolio into one or more SUBI
Portfolios upon the written direction of the UTI Beneficiary, the Titling
Trustee shall (1) establish (to the extent such account has not already been
established with respect to such SUBI Portfolio) and maintain in its name for
each SUBI a separate SUBI Lease Funding Account, each of which shall be a
Titling Trustee Account and a SUBI Account; (2) to the extent that the Titling
Trustee would, but for the conditions set forth in clauses (a)(i) and (a)(ii) of
this Section 12.04, cause the transfer of funds from any SUBI Collection Account
to the Lease Funding Account (or directly to the Servicer) in connection with
any Trust Asset Transfer, instead cause the transfer of such funds from that
SUBI Collection Account to the related SUBI Lease Funding Account; (3) direct
the Servicer then servicing the respective SUBI Portfolio to acquire on behalf
of the Titling Trust, for the account of that SUBI Portfolio rather than for the
UTI Portfolio, Contracts and Leased Vehicles from Dealers, and (4) apply any
such funds in any such SUBI Lease Funding Account directly to reimburse the
Servicer then servicing that SUBI Portfolio for any payments made by it to
Dealers in respect of such Contracts and Leased Vehicles. In the event that
Contracts and Leased Vehicles are being acquired by any Servicer(s) at such
direction of the Titling Trustee on behalf of the Titling Trust with respect to
both the UTI Portfolio and any SUBI Portfolio simultaneously, the Titling
Trustee and the Servicer shall first allocate all such Contracts and Leased
Vehicles to the relevant SUBI Portfolios until funds available for such purpose
in any SUBI Lease Funding Account shall be exhausted and then shall allocate all
remaining Contracts and Leased Vehicles to the UTI Portfolio.
SECTION 12.05 REBALANCING AFTER THIRD-PARTY CLAIM.
To the extent that a third-party Claim against Titling Trust Assets is
satisfied out of Titling Trust Assets in proportions other than as provided in
Section 3.04 of the Titling Trust Agreement, then, notwithstanding anything to
the contrary contained herein, the Titling Trustee shall promptly identify and
reallocate (or cause the Servicer to identify and reallocate) the remaining
Titling Trust Assets among the UTI Sub-Trust and each of the SUBI Sub-Trusts
such that each shall bear the expense of such Claim as nearly as possible as if
the burden thereof had been allocated as provided in Section 3.04 of the Titling
Trust Agreement.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 GOVERNING LAW.
This UTI Supplement shall be created under and governed by and construed
under the internal laws of the State of Delaware, without regard to any
otherwise applicable principles of conflicts of laws, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
SECTION 13.02 EFFECT OF UTI SUPPLEMENT ON TRUST AGREEMENT.
(a) Except as otherwise specifically provided herein: (i) the parties
shall continue to be bound by all provisions of the Titling Trust Agreement; and
(ii) the provisions set forth herein shall operate either as additions to or
modifications of the extant obligations of the parties under the Titling Trust
Agreement, as the context may require. In the event of any conflict between the
provisions of this UTI Supplement and the Titling Trust Agreement with respect
to the UTI and any UTI Assets, the provisions of this UTI Supplement shall
prevail.
(b) For purposes of determining the parties' obligations under this UTI
Supplement with respect to the UTI, general references in the Titling Trust
Agreement to a UTI Supplement shall be deemed to refer more specifically to this
UTI Supplement.
SECTION 13.03 COUNTERPARTS.
This UTI Supplement may be executed in any number of counterparts, each of
which so executed and delivered shall be deemed to be an original, but all of
which counterparts shall together constitute but one and the same instrument.
SECTION 13.04 AMENDMENT. Prior to the first Securitized Financing, this
UTI Supplement may be amended by written agreement between the UTI Beneficiary
and the Titling Trustee to correct or supplement any provision in this UTI
Supplement, to cure any ambiguity, and to add, change or eliminate any other
provision of this UTI Supplement with respect to matters or questions arising
under this UTI Supplement. After the first Securitized Financing, any such
amendment shall also require such additional approvals, if any, as are required
under documents relating to each Securitized Financing.
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IN WITNESS WHEREOF, the Grantor, the Titling Trustee and (solely for the
limited purposes set forth in Sections 6.03(e), 6.11(d), 6.14, 6.15, 9.01 and
9.03 of the Titling Trust Agreement), the Trust Agent, have caused this UTI
Supplement to be duly executed by the respective officers as of the day and year
first above written.
TOYOTA MOTOR CREDIT CORPORATION,
as Grantor, UTI Beneficiary and Servicer
By: /s/ George Borst
-----------------------------------------
Name: George Borst
Title: Senior Vice President and
General Manager
TMTT, Inc.,
as Titling Trustee
By: /s/ Steven E. Charles
-----------------------------------------
Name: Steven E. Charles
Title: Vice President
FIRST BANK NATIONAL ASSOCIATION,
as Trust Agent
By: /s/ Steven E. Charles
-----------------------------------------
Name: Steven E. Charles
Title: Vice President
<PAGE>
EXHIBIT A
FORM OF DIRECTION TO CREATE UTI UNIT
TMTT, INC., Titling Trustee
c/o First Bank National Association
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Attention: Corporate Trust Office
Re: Toyota Lease Trust
Creation of UTI Unit No. ____
Dear sirs:
Pursuant to Section 11.01(c) of the UTI Supplement (the "UTI Supplement")
dated as of October 1, 1996, to the Trust and Servicing Agreement, as the same
was amended and restated pursuant to the Amended and Restated Trust and
Servicing Agreement (the "Titling Trust Agreement"), dated as of October 1,
1996, each among Toyota Motor Credit Corporation ("TMCC") as grantor, initial
beneficiary and servicer, TMTT, INC., as Titling Trustee (the "Titling
Trustee"), and for certain limited purposes only, First Bank National
Association, a national banking association as trust agent, you are hereby
directed to create a UTI Unit No. ___ (the "UTI Unit") comprised of the assets
identified in the attached schedule.
You are hereby directed to register the UTI Unit Certificate in the name of
[Pledgee/Transferee] as of [date], and to deliver the same on [date] to
[Pledgee/Transferee or Agent] at [Address], against confirmation of receipt of
[amount of proceeds of Pledge or Securitized Financing] received in the account
described in the attached account details.
The [name, date and parties to controlling document] setting forth the
terms and conditions of the [Pledge/Securitized Financing] is attached hereto.
Your attention is directed to Sections ___, ___ and ___, which specify events of
default the occurrence of which may require the Titling Trustee to make future
distributions of amounts payable to the UTI Beneficiary to the persons or on the
basis specified in Section 12.03 of the UTI Supplement.
A-1
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TMCC, as UTI Beneficiary, hereby represents and warrants to the Titling
Trustee that all of the conditions precedent to the creation of a UTI Unit are
satisfied as of the date of this instruction, including, but not limited to,
those contained in Sections 3.01 and 7.02 of the Titling Trust Agreement and
Section 11.02 of the UTI Supplement.
Dated: _______________ TOYOTA MOTOR CREDIT CORPORATION,
as UTI Beneficiary
By:
------------------------------------
Name:
Title:
A-2
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EXHIBIT B
FORM OF DIRECTION TO REALLOCATE UTI UNIT ASSETS
TMTT, INC., Titling Trustee
c/o First Bank National Association
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Attention: Corporate Trust Office
Re: Toyota Lease Trust
Reallocation with respect to UTI Unit No. ____
Dear sirs:
Pursuant to Section 11.01(c) of the UTI Supplement (the "UTI Supplement")
dated as of October 1, 1996, to the Trust and Servicing Agreement, as the same
was amended and restated pursuant to the Amended and Restated Trust and
Servicing Agreement (collectively, the "Titling Trust Agreement"), dated as of
October 1, 1996, each among Toyota Motor Credit Corporation ("TMCC") as grantor,
initial beneficiary and servicer, TMTT, INC., as Titling Trustee (the "Titling
Trustee"), and for certain limited purposes only, First Bank National
Association, a national banking association as trust agent, you are hereby
directed to allocate to a UTI Unit Portfolio relating to UTI Unit No. ___ the
Contracts and Leased Vehicles specified on the attached schedule, and
additionally, for the term of the [Secured Financing UTI Pledge] documented in
the attached [name, date and parties to controlling document], to regard and
treat the related proceeds and other rights associated with such leases and
leased vehicles in relation to such UTI Unit No. ___ as specified in the UTI
Supplement.
TMCC, as UTI Beneficiary, hereby represents and warrants to the Titling
Trustee that all of the conditions precedent to the allocation of UTI Assets to
a UTI Unit are satisfied as of the date of this direction, including, but not
limited to, those contained in Sections 3.01 and 7.02 of the Titling Trust
Agreement and Section 11.02 of the UTI Supplement.
Dated: _______________ TOYOTA MOTOR CREDIT CORPORATION
By:
------------------------------------
Name:
Title:
B-1
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EXHIBIT C
FORM OF [RESIDUAL] UTI [UNIT] CERTIFICATE
TOYOTA LEASE TRUST
UNDIVIDED TRUST INTEREST CERTIFICATE
evidencing a fractional undivided interest in the UTI Sub-Trust (as defined
below).
(This Certificate does not represent any obligation of, or an interest in,
Toyota Motor Credit Corporation, Toyota Motor Sales, U.S.A., Inc., TMTT,
Inc., Toyota Leasing, Inc. ("TLI") or any of their respective affiliates.)
Number ___
THIS CERTIFIES THAT ___________________________________ is the registered
owner of a nonassessable, fully-paid, fractional undivided interest in the UTI
[UTI Unit] (the ["UTI"]["UTI Unit"]) comprised of interests in those Titling
Trust Assets not allocated to any other Sub-Trust of the Titling Trust [or the
Residual UTI Sub-Trust], such assets comprising the UTI Sub-Trust (the "UTI
Sub-Trust") of the Toyota Lease Trust, a Delaware business trust (the "Trust")
formed by Toyota Motor Credit Corporation, as Grantor and UTI Beneficiary (in
such capacities, the "Grantor" and the "UTI Beneficiary" respectively), and
TMTT, Inc., a Delaware corporation, as trustee (the "Trustee") pursuant to a
Trust and Servicing Agreement, as the same was amended and restated pursuant to
the Amended and Restated Trust and Servicing Agreement (as amended and restated,
the "Titling Trust Agreement"), each dated and effective as of October 1, 1996,
among the Grantor, the Titling Trustee, and, for certain limited purposes set
forth therein, First Bank National Association, a national banking association,
as Trust Agent (the "Trust Agent"). A summary of certain of the provisions of
the Titling Trust Agreement is set forth below. Capitalized terms used and not
otherwise defined herein have the meanings ascribed thereto in the Titling Trust
Agreement and UTI Supplement (defined below).
This Certificate is one of the duly authorized UTI Certificates issued
under the Titling Trust Agreement, as supplemented by the UTI Supplement (the
"UTI Supplement") dated and effective as of October 1, 1996, among the UTI
Beneficiary, the Titling Trustee and, for certain limited purposes only set
forth therein, the Trust Agent (the "UTI Certificates"). This UTI Certificate
is subject to the terms, provisions and conditions of the Titling Trust
Agreement and the UTI Supplement, to which agreements each UTI Beneficiary by
virtue of the acceptance hereof or of any interest herein hereby assents and by
which such UTI Beneficiary is bound.
C-1
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Also issued or to be issued under the Titling Trust Agreement are various
other series of certificates evidencing undivided interests in other Sub-Trusts
of the Titling Trust. [To date, no other UTI Certificate has been issued, but]
SUBI Certificates representing 100% of the undivided interests in each SUBI
Sub-Trust formed or to be formed have or will be issued at the time each related
SUBI Sub-Trust is formed.
The property of the Titling Trust includes, or will include, among other
things: (i) any capital contributed by the Grantor; (ii) the Contracts and all
proceeds thereof; (iii) the Leased Vehicles and all proceeds thereof, including
each Certificate of Title and the Residual Value of each Leased Vehicle, whether
realized through the exercise by Obligors of purchase options under the
Contracts, the proceeds of sale of the Leased Vehicles to Dealers or third
parties or through payments received from any other Person (directly or
indirectly) under any related Insurance Policy (to the extent not applied to
making repairs to the related Leased Vehicle or otherwise paid to the Obligor, a
third Person or Governmental Authority by the Servicer as required by law or
pursuant to its normal servicing practices) or as a subsidy or other funding of
any modification of the related Residual Value; (iv) all of the Titling Trust's
rights with respect to any Contract or Leased Vehicle, including the right to
enforce and to proceeds arising from all Dealer repurchase obligations arising
under Dealer Agreements; (v) all of TMCC's rights with respect to any Contract
or Leased Vehicle, including the right to enforce and to proceeds arising from
all Dealer repurchase obligations arising under Dealer Agreements; (vi) any
Insurance Policy and rights thereunder or proceeds therefrom relating to any of
the Contracts, Leased Vehicles or payments of the related Obligors with respect
thereto (to the extent not applied to making repairs to the related Leased
Vehicle or otherwise paid to the Obligor, a third Person or Governmental
Authority by the Servicer as required by law or pursuant to its normal
servicing practices); (vii) any portion of any security deposit actually and
properly applied by the Servicer against amounts due under the related Contract,
to the extent not applied to making repairs to the related Leased Vehicle or
paid to the Obligor, a third Person or Governmental Authority in accordance with
the Servicer's normal servicing practices; and (viii) all proceeds of any of the
foregoing (such assets, together with any other assets of the Titling Trust, the
"Titling Trust Assets"). The Titling Trust Agreement provides that, from time
to time, the Titling Trust Assets will be identified and allocated on the
records of the Titling Trust into one or more separate Sub-Trusts comprised of
identified Titling Trust Assets (such Sub-Trusts the "UTI Sub-Trust" or a "SUBI
Sub-Trust", as the case may be, and the related assets, "UTI Assets" or "SUBI
Assets", as the case may be).
Pursuant to the UTI Supplement, the UTI Assets were identified and
allocated on the records of the Titling Trust as the UTI Sub-Trust, and the
beneficial interest in the UTI Sub-Trust was designated as the UTI. The rights
of the UTI Beneficiary to certain of the proceeds of the UTI Assets are further
set forth in the Titling Trust Agreement and the UTI Supplement.
This UTI Certificate is limited in right of payment to certain collections
and recoveries respecting the Contracts (and the related Obligors) and the
Leased Vehicles allocated to the UTI [Unit] Sub-Trust, all to the extent and as
more specifically set in the Titling Trust Agreement and the UTI Supplement.
Copies of the Titling Trust Agreement and the UTI Supplement may be
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examined during normal business hours at the principal office of the Titling
Trustee, and at such other places, if any, designated by the Titling Trustee, or
by the UTI Beneficiary upon request.
By accepting this UTI Certificate or any interest herein, the UTI
Beneficiary waives any claim to any proceeds or assets of the Titling Trustee
and to all of the Titling Trust Assets other than those from time to time
included within the UTI [Unit] Sub-Trust and those proceeds or assets derived
from or earned by the UTI Assets. In addition, by accepting this UTI
Certificate or any interest herein, the UTI Beneficiary hereby expressly
subordinates any claim or interest in or to any Titling Trust Assets not
included in the UTI [Unit] Sub-Trust that may be determined to exist in favor of
such UTI Beneficiary notwithstanding the foregoing disclaimer to the rights and
interests of each SUBI Beneficiary.
The Titling Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the parties thereto by written agreement between the UTI
Beneficiary and the Titling Trustee to correct or supplement any provision in
the Titling Trust Agreement, to cure any ambiguity, and to add, change or
eliminate any other provision of the Titling Trust Agreement with respect to
matters or questions arising under the Titling Trust Agreement. After the first
Securitized Financing, any such amendment shall also require such additional
approvals, if any, as are required under documents relating to each Securitized
Financing.
As provided in the Titling Trust Agreement and the UTI Supplement, this UTI
Certificate and the underlying interests represented hereby may not be
transferred or assigned, and any purported transfer or assignment shall be null,
void, and of no effect, except in accordance with the provisions of the Titling
Trust Agreement and the UTI Supplement.
Prior to due presentation of this UTI Certificate for registration of a
permitted transfer, the Titling Trustee, the certificate registrar and any of
their respective agents may treat the person or entity in whose name this UTI
Certificate is registered as the owner hereof for the purpose of receiving
distributions and for all other purposes, and, except as provided for in the
Titling Trust Agreement, neither the Titling Trustee, the certificate registrar
nor any such agent shall be affected by any notice to the contrary.
Unless this UTI Certificate shall have been executed by an authorized
officer of the Titling Trustee, by manual signature, this UTI Certificate shall
not entitle the holder hereof to any benefit under the Titling Trust Agreement
or the UTI Supplement or be valid for any purpose.
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IN WITNESS WHEREOF, the Titling Trustee on behalf of the Titling Trust and
not in its individual capacity has caused this UTI Certificate to be duly
executed.
Dated: TOYOTA LEASE TRUST
By: TMTT, INC., as Titling Trustee
By:
------------------------------------
Authorized Officer
ATTEST:
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EXHIBIT D
FORMS OF CONTRACT
[Omitted - On file with the Servicer]
D-1
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EXHIBIT E
FORM OF DEALER AGREEMENT
E-1
<PAGE>
EXECUTION COPY
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TOYOTA MOTOR CREDIT CORPORATION
TMTT, INC.,
as Titling Trustee of Toyota Lease Trust
and,
for Certain Limited Purposes only,
U.S. BANK NATIONAL ASSOCIATION,
as Trust Agent
1997-A SUBI SUPPLEMENT
TO
AMENDED AND RESTATED
TRUST AND SERVICING AGREEMENT
Dated as of September 1, 1997
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TABLE OF CONTENTS
ARTICLE XV
DEFINITIONS
SECTION 15.01 Definitions.. . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE XVI
CREATION AND TERMINATION OF TRUST INTERESTS
SECTION 16.01 Initial Creation of 1997-A SUBI Sub-Trust and 1997-A SUBI.. 2
SECTION 16.02 Rights in Respect of 1997-A SUBI. . . . . . . . . . . . . . 4
SECTION 16.03 Issuance and Form of 1997-A SUBI Certificate. . . . . . . . 4
SECTION 16.04 Filings . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 16.05 Termination of 1997-A SUBI. . . . . . . . . . . . . . . . . 5
SECTION 16.06 Representations and Warranties of Titling Trustee . . . . . 6
SECTION 16.07 Resignation or Removal of Titling Trustee . . . . . . . . . 6
ARTICLE XVII
ACCOUNTS; CASH FLOWS; PERMITTED INVESTMENTS
SECTION 17.01 1997-A SUBI Collection Account. . . . . . . . . . . . . . . 6
SECTION 17.02 1997-A SUBI Lease Funding Account . . . . . . . . . . . . . 7
SECTION 17.03 Investment Gains and Losses . . . . . . . . . . . . . . . . 8
SECTION 17.04 Rebalancing After Third-Party Claim . . . . . . . . . . . . 8
ARTICLE XVIII
MISCELLANEOUS PROVISIONS
SECTION 18.01 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 18.02 Effect of 1997-A SUBI Supplement on Trust Agreement . . . . 9
SECTION 18.03 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 18.04 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 18.05 Severability of Provisions. . . . . . . . . . . . . . . . . 10
SECTION 18.06 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 10
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EXHIBITS
ANNEX OF SUPPLEMENTAL DEFINITIONS. . . . . . . . . . . . . . . . . . . .Annex I
EXHIBIT A Form of Series 1997-A SUBI Certificate . . . . . . . . . . . . .A-1
SCHEDULE I Schedule of Series 1997-A Contracts and Series 1997-A
Leased Vehicles as of the 1997-A Cut-off Date . . . . . . . . .S-1
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1997-A SUBI SUPPLEMENT TO
AMENDED AND RESTATED TRUST AND SERVICING AGREEMENT
1997-A SUBI SUPPLEMENT TO AMENDED AND RESTATED TRUST AND SERVICING
AGREEMENT, dated and effective as of September 1, 1997, among TOYOTA MOTOR
CREDIT CORPORATION, a California corporation (in its capacities as Grantor, UTI
Beneficiary and Servicer, respectively), TMTT, INC., as Titling Trustee, and for
the limited purposes of acknowledging the provisions of Section 17.01, 17.02 and
17.03 and having rights under Section 18.03, U.S. BANK NATIONAL ASSOCIATION
(formerly known as First Bank National Association), a national banking
association, as Trust Agent.
RECITALS
A. TMCC, the Titling Trustee and the Trust Agent have entered into the
Titling Trust Agreement, pursuant to which the Grantor and the Titling Trustee
formed the Titling Trust, for the purpose of taking assignments and conveyances
of, holding in trust and dealing in, various Titling Trust Assets in accordance
with the Titling Trust Agreement.
B. The Titling Trust Agreement contemplates that certain of the Titling
Trust Assets, other than those previously identified on the Titling Trust's
books and records as Other SUBI Assets and allocated to a separate SUBI
Sub-Trust, may be allocated to a SUBI Sub-Trust and thenceforth constitute SUBI
Assets within such SUBI Sub-Trust, and that the Titling Trustee shall create a
SUBI and issue to, or to the order of, the UTI Beneficiary one or more SUBI
Certificates evidencing the related SUBI, and the related SUBI Beneficiaries and
their permitted assignees generally will be entitled to the net cash flow
arising from, but only from, such SUBI Assets.
C. The parties hereto desire to supplement the terms of the Titling Trust
Agreement to cause the Titling Trustee to identify a SUBI Portfolio and allocate
the related Titling Trust Assets to the 1997-A SUBI Sub-Trust, to create the
1997-A SUBI and to create and issue to the UTI Beneficiary a SUBI Certificate
evidencing the entire beneficial interest in the 1997-A SUBI, and to set forth
the terms and conditions thereof.
D. The Titling Trustee, on behalf of the Titling Trust, and the Servicer
also will enter into the 1997-A Servicing Supplement pursuant to which, among
other things, the terms of the Titling Trust Agreement will be supplemented
insofar as they apply solely to the servicing of the SUBI Sub-Trust created
hereby to provide for further specific servicing obligations that will benefit
solely the SUBI Beneficiaries with respect to the 1997-A SUBI created hereby.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and in the Titling Trust Agreement, the parties hereto agree to
the following supplemental obligations and provisions with regard to the 1997-A
SUBI Sub-Trust:
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ARTICLE XIV
[RESERVED]
ARTICLE XV
DEFINITIONS
SECTION 15.01 DEFINITIONS. For all purposes of this 1997-A SUBI
Supplement, except as otherwise expressly provided or unless the context
otherwise requires, capitalized terms used and not otherwise defined herein
shall have the meanings ascribed thereto in the Annex of Definitions or the
Annex of Supplemental Definitions attached hereto for all purposes of this
1997-A SUBI Supplement. In the event of any conflict between a definition set
forth herein and that set forth in the Annex of Definitions or Annex of
Supplemental Definitions, that set forth herein shall prevail. All terms used
in this 1997-A SUBI Supplement include, as appropriate, all genders and the
plural as well as the singular. All references such as "herein", "hereof" and
the like shall refer to this 1997-A SUBI Supplement as a whole and not to any
particular article or section within this 1997-A SUBI Supplement. All
references such as "includes" and variations thereon shall mean "includes
without limitation" and references to "or" shall mean "and/or". Any reference
herein to the "Titling Trustee, acting on behalf of the Titling Trust", or words
of similar import, shall be deemed to mean the Titling Trustee, acting on behalf
of Toyota Lease Trust and all beneficiaries thereof.
ARTICLE XVI
CREATION AND TERMINATION OF TRUST INTERESTS
SECTION 16.01 INITIAL CREATION OF 1997-A SUBI SUB-TRUST AND 1997-A SUBI.
(a) Pursuant to Section 3.01(c) of the Titling Trust Agreement, Titling
Trust Assets not already denominated as SUBI Assets with respect to a different
SUBI Sub-Trust may be identified and allocated as SUBI Assets of a separate SUBI
Sub-Trust at the direction of the UTI Beneficiary. The UTI Beneficiary hereby
directs the Titling Trustee to identify and allocate or cause to be identified
and allocated on the books and records of the Titling Trust a separate portfolio
of SUBI Assets (the "1997-A SUBI Assets") consisting of (i) the Contracts and
related Leased Vehicles listed on Schedule I hereto and other related Titling
Trust Assets to be accounted for and held in trust independently from all other
Titling Trust Assets within the Titling Trust, including all Titling Trust
Assets already identified and allocated to any other SUBI Sub-Trust and from
those remaining as assets of the UTI Sub-Trust and (ii) the Subsequent
Contracts, Subsequent Leased Vehicles and related Titling Trust Assets to be
allocated to the 1997-A SUBI Sub-Trust pursuant to Section 3.02(a) of the 1997-A
Servicing Supplement.
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The assets of the 1997-A SUBI Sub-Trust established hereby shall consist
of: (i) those Contracts identified by contract number on Schedule I hereto that
are Eligible Contracts as of the 1997-A Cut-off Date, including the related
rights of the Titling Trust as lessor under such Contracts, having an Aggregate
Net Investment Value of $1,231,231,519.02 as of the 1997-A Cut-off Date and
those Contracts allocated to the 1997-A SUBI Sub-Trust pursuant to Section
3.02(a) of the 1997-A Servicing Supplement; (ii) the related Leased Vehicles and
all proceeds thereof, including each Certificate of Title and the Residual Value
of each Leased Vehicle, whether realized through the exercise by Obligors of
purchase options under the Contracts, the proceeds of sale of the Leased
Vehicles to Dealers or third parties or through payments received from any other
Person (directly or indirectly) under any related Insurance Policy (to the
extent not applied to making repairs to the related Leased Vehicle or otherwise
paid to the Obligor, a third Person or Governmental Authority by the Servicer as
required by law or pursuant to its normal servicing practices) or as a subsidy
or other funding of any modification of the related Residual Value; (iii) all of
the Titling Trust's right, title, interest and obligations (except such
obligations that are specifically retained by the Titling Trust pursuant to the
terms of the Titling Trust Agreement) with respect to such Contracts or Leased
Vehicles, including the right to enforce all Dealer repurchase obligations
arising under Dealer Agreements and to proceeds arising therefrom; (iv) any
Insurance Policy and rights thereunder or proceeds therefrom relating to such
Contracts, Leased Vehicles or payments of the related Obligors with respect
thereto (to the extent not applied to making repairs to the related Leased
Vehicle or otherwise paid to the Obligor, a third Person or Governmental
Authority by the Servicer as required by law or pursuant to its normal servicing
practices); (v) any portion of any Security Deposit actually and properly
applied by the Servicer against amounts due under the related Contract, to the
extent not applied to making repairs to the related Leased Vehicle or paid to
the Obligor, a third Person or Governmental Authority in accordance with the
Servicer's normal servicing practices; (vi) the 1997-A SUBI Collection Account,
including all cash and Permitted Investments therein and all income from the
investment of funds therein and (vii) all proceeds of any of the foregoing.
Based upon their identification and allocation by the Servicer pursuant to
the 1997-A Servicing Supplement, the Titling Trustee hereby identifies and
allocates as 1997-A SUBI Assets the portfolio of Contracts and Leased Vehicles
more particularly described on Schedule I hereto, and the related Titling Trust
Assets described above, each such 1997-A SUBI Asset to be identified on the
books and accounts of the Trust as belonging to the 1997-A SUBI Portfolio.
(b) Pursuant to Section 3.01(c) of the Titling Trust Agreement, the
Titling Trustee hereby creates the 1997-A SUBI Sub-Trust and the 1997-A SUBI.
The 1997-A SUBI shall represent a specific undivided beneficial interest solely
in the 1997-A SUBI Sub-Trust and the 1997-A SUBI Assets.
(c) As required by Section 3.01(d) of the Titling Trust Agreement, the UTI
Beneficiary hereby certifies to the Titling Trustee that as of the date of
execution and delivery hereof: that (i) either there is no pledgee of the UTI or
each such pledgee of a UTI Pledge has received prior notice of the creation of
the 1997-A SUBI Sub-Trust and of the terms and provisions of this 1997-A SUBI
Supplement and of the related Securitized Financing and (ii) as of the date
hereof, and after giving
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effect to the creation of the 1997-A SUBI Sub-Trust, the transfer to the UTI
Beneficiary of the 1997-A SUBI Certificate in connection therewith and the
application by the UTI Beneficiary of any net proceeds from any Securitized
Financing involving such SUBI and such SUBI Certificate, there is and will be no
default with respect to any Securitized Financing or other agreement or
obligation secured by a UTI Pledge.
(d) The parties hereto intend that, at any time during which all 1997-A
SUBI Certificates are held or beneficially owned by a single Person, the 1997-A
SUBI Sub-Trust shall not constitute a separate entity for federal income tax
purposes or for state income or franchise tax purposes. However, at any time
that the 1997-A SUBI Certificates are held or beneficially owned by two or more
Persons, the parties hereto intend that the 1997-A Sub-Trust be characterized as
a separate entity for federal and state income tax purposes that shall qualify
as a partnership for such purposes. The SUBI Sub-trust shall not elect to be
treated as an association under Section 301.7701-3(a) of the regulations of the
United States Department of the Treasury for federal income tax purposes.
(e) The Beneficiary of the 1997-A SUBI Certificate shall at all times
maintain a minimum net worth (excluding the value of the 1997-A SUBI Certificate
held thereby and the value of any assets of the 1997-A Securitization Trust
established pursuant to the 1997-A Trust Agreement) equal to at least $100,000;
provided that such minimum net worth requirement shall not apply to the 1997-A
Securitization Trust or the 1997-A Securitization Trustee.
SECTION 16.02 RIGHTS IN RESPECT OF 1997-A SUBI.
Each holder of a 1997-A SUBI Certificate (including the 1997-A
Securitization Trustee, on behalf of the Holders of the securities issued by the
1997-A Securitization Trust) is a third-party beneficiary of the Titling Trust
Agreement and this 1997-A SUBI Supplement, insofar as they apply to the 1997-A
SUBI and the holder of the 1997-A SUBI Certificate. Therefore, to that extent,
references in the Titling Trust Agreement to the ability of any "holder of a
SUBI Certificate", "assignee of a SUBI Certificate" or the like to take any
action shall also be deemed to refer to the 1997-A Securitization Trustee acting
at its own instigation or upon the instruction of Investor Certificateholders
pursuant to the terms of Section 6.15 of the 1997-A Securitization Trust
Agreement.
SECTION 16.03 ISSUANCE AND FORM OF 1997-A SUBI CERTIFICATE.
(a) The 1997-A SUBI shall be represented by a single 1997-A SUBI
Certificate, which shall represent 100% of the beneficial interests in the
1997-A SUBI and the 1997-A SUBI Sub-Trust, as further set forth herein. The
1997-A SUBI Certificate shall be substantially in the form of Exhibit A attached
hereto, but may have such letters, numbers or other marks of identification and
such legends and endorsements placed thereon as may, consistently herewith and
with the Titling Trust Agreement, be directed by the Beneficiary.
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The 1997-A SUBI Certificate may be printed, lithographed, typewritten,
mimeographed, photocopied or otherwise produced in any other manner as may,
consistently herewith and with the Titling Trust Agreement, be determined by the
UTI Beneficiary.
(b) As required by Section 3.01(g) of the Titling Trust Agreement, the
1997-A SUBI Certificate may not be transferred or assigned unless the assignee
or pledgee (x) gives a non-petition covenant substantially similar to that set
forth in Section 6.14 of the Titling Trust Agreement, and (y) executes an
agreement between or among itself and each UTI Beneficiary and each SUBI
Beneficiary of each SUBI relating to another Sub-Trust, to release all claims to
the Titling Trust Assets allocated to the UTI Sub-Trust or to such other SUBI
Sub-Trust and, in the event that such release is not given effect, to fully
subordinate all claims it may be deemed to have against the Titling Trust Assets
allocated thereto (which agreement may be included in the 1997-A SUBI
Certificate itself). In addition, the 1997-A SUBI Certificate or any beneficial
interest therein may not be transferred by any Beneficiary thereof without the
prior written consent of each registered holder of a 1997-A SUBI Certificate.
SECTION 16.04 FILINGS.
The Grantor, the UTI Beneficiary (if different from the Grantor) and the
Titling Trustee, as directed by the Grantor or the UTI Beneficiary, will
undertake all other and future actions and activities as may be deemed
reasonably necessary by the Grantor or the UTI Beneficiary to perfect (or
evidence) and confirm the allocation of the 1997-A SUBI Assets to the 1997-A
SUBI Portfolio as provided herein, including filing or causing to be filed UCC
financing statements and executing and delivering all related filings, documents
or writings as may be deemed reasonably necessary by the Servicer hereunder or
under any other agreements or instruments relating to such Securitized
Financing. The Grantor hereby irrevocably makes and appoints each of the
Titling Trustee and the Servicer (in the case of the Servicer, only for so long
as such Servicer is acting in such capacity), and any of their respective
officers, employees or agents, as the true and lawful attorney-in-fact of the
Grantor (which appointment is coupled with an interest and is irrevocable) with
power to sign on behalf of the Grantor any financing statements, continuation
statements, security agreements, mortgages, assignments, affidavits, letters of
authority, notices or similar documents necessary or appropriate to be executed
or filed pursuant to this Section 16.04.
SECTION 16.05 TERMINATION OF 1997-A SUBI.
In connection with any purchase by the Grantor or the Servicer of the
1997-A Certificateholders' interest in the corpus of the 1997-A Securitization
Trust pursuant to Section 7.02 of the 1997-A Securitization Trust Agreement, and
the succession thereof to all of the interest in the 1997-A SUBI, should all of
the interest in the 1997-A SUBI thereafter be transferred to the UTI
Beneficiary, whether by sale or otherwise, then, upon the direction of the UTI
Beneficiary, the 1997-A SUBI shall be terminated, the 1997-A SUBI Certificates
shall be returned to the Titling Trustee and canceled thereby, and the Titling
Trustee, at the direction of the Servicer, shall reallocate
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all 1997-A Contracts, 1997-A Leased Vehicles and related 1997-A SUBI Assets to
the UTI Sub-Trust.
SECTION 16.06 REPRESENTATIONS AND WARRANTIES OF TITLING TRUSTEE.
The Titling Trustee hereby makes the same representations and warranties
set forth in Section 6.12 of the Titling Trust Agreement as of the date hereof,
on which the Grantor and UTI Beneficiary have relied in executing this 1997-A
SUBI Supplement and on which each of their permitted assignees and pledgees, and
each pledgee or holder of a 1997-A SUBI Certificate (and each Beneficiary of the
1997-A SUBI Certificate) may rely.
SECTION 16.07 RESIGNATION OR REMOVAL OF TITLING TRUSTEE.
No resignation or removal of the Titling Trustee pursuant to any provision
of the Titling Trust Agreement shall be effective unless and until each Rating
Agency has confirmed, in writing, that such resignation or removal would not
cause it to reduce, modify or withdraw its then current rating of any class of
securities issued by the 1997-A Securitization Trust.
ARTICLE XVII
ACCOUNTS; CASH FLOWS; PERMITTED INVESTMENTS
SECTION 17.01 1997-A SUBI COLLECTION ACCOUNT.
(a) The Titling Trustee shall establish and maintain with respect to the
1997-A SUBI the 1997-A SUBI Collection Account in the name of the 1997-A
Securitization Trustee, for the benefit of the Beneficiaries of the 1997-A SUBI
Certificate, which account shall constitute a SUBI Collection Account. The
1997-A SUBI Collection Account initially shall be established with U.S. Bank, as
Trust Agent, and at all times shall be an Eligible Account. In the event that
the Trust Agent no longer meets the requirements stated in the definition of
Eligible Account, then the Servicer shall, with the Titling Trustee's assistance
as necessary, cause the 1997-A SUBI Collection Account to be moved to a bank or
trust company that satisfies those requirements. The 1997-A SUBI Collection
Account shall relate solely to the 1997-A SUBI and the 1997-A SUBI Sub-Trust,
and funds therein shall not be commingled with any other moneys, except as
otherwise provided for or contemplated in the Titling Trust Agreement as
supplemented by this 1997-A SUBI Supplement or in the 1997-A Servicing
Supplement. All amounts held in the 1997-A SUBI Collection Account shall be
invested in Permitted Investments until distributed or otherwise applied in
accordance with the Titling Trust Agreement or this 1997-A SUBI Supplement.
(b) The Servicer shall deposit all amounts collected or received in
respect of the 1997-A Contracts and 1997-A Leased Vehicles into the 1997-A SUBI
Collection Account (in each case exclusive of amounts reinvested or to be
reinvested in Subsequent Contracts) on or before the Deposit Date relating to
each Collection Period except as otherwise specified herein or in the 1997-A
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Servicing Supplement (in connection with any failure to satisfy the Monthly
Remittance Conditions). Amounts so deposited will be applied by the 1997-A
Securitization Trustee or by the Servicer as specified in the 1997-A
Securitization Trust Agreement and the 1997-A Servicing Supplement.
Notwithstanding the foregoing, because (as the parties hereto acknowledge)
(i) TLI as initial SUBI Beneficiary has all rights in, under and to the net
proceeds of the Residual Value Insurance Policy insofar as such Insurance Policy
relates to the 1997-A Contracts and 1997-A Leased Vehicles, and (ii) TLI, as
Transferor, has, concurrently with the execution and delivery hereof, executed
and delivered an instrument transferring the 1997-A SUBI Certificate to the
1997-A Securitization Trustee on behalf of the 1997-A Securitization Trust
exclusive of the net proceeds of such Residual Value Insurance Policy, on each
Monthly Allocation Date, as directed by the Servicer, the Titling Trustee shall
release all proceeds of the Residual Value Insurance Policy payable with respect
to the 1997-A Contracts or the 1997-A Leased Vehicles to TLI or to the designee
of TLI.
(c) Principal Collections and Interest Collections that are to be
reinvested in Subsequent Contracts and Subsequent Leased Vehicles to be included
in the 1997-A SUBI Sub-Trust during the Revolving Period that are not deposited
into the 1997-A SUBI Collection Account on a Monthly Allocation Date, will be so
reinvested by the Servicer on a Transfer Date during the calendar month in which
such Monthly Allocation Date occurs as specified in Section 3.02(a) of the
1997-A Servicing Supplement.
(d) Notwithstanding the foregoing paragraphs (b) and (c), from and after
the date, if any, on which the Monthly Remittance Conditions cease to be
satisfied, the Servicer will deposit all Principal Collections and Interest
Collections into the 1997-A SUBI Collection Account within two Business Days of
its receipt thereof as set forth in Section 4.02 of the 1997-A Servicing
Supplement, and such amounts will thereafter be applied as described in Section
3.02 of the 1997-A Servicing Supplement (and Section 17.02 hereof insofar as
they are to be reinvested in Subsequent Contracts and Subsequent Leased
Vehicles).
SECTION 17.02 1997-A SUBI LEASE FUNDING ACCOUNT.
Notwithstanding the provisions of Section 7.03 of the Titling Trust
Agreement, the Titling Trustee shall be required to establish and maintain with
respect to the 1997-A SUBI the 1997-A SUBI Lease Funding Account in the name of
the Titling Trustee, for the benefit of the Beneficiaries of the 1997-A SUBI
Certificate (which account shall constitute a SUBI Lease Funding Account) only
in the event that the Monthly Remittance Conditions are no longer satisfied.
Any such 1997-A SUBI Lease Funding Account initially shall be established with
U.S. Bank, as Trust Agent, and at all times shall be an Eligible Account. In
the event that the Trust Agent no longer meets the requirements stated in the
definition of Eligible Account, then the Servicer shall, with the Titling
Trustee's assistance as necessary, cause the 1997-A SUBI Lease Funding
Account to be moved to a bank or trust company that satisfies those
requirements. The 1997-A SUBI Lease Funding Account shall relate solely to
the 1997-A SUBI and the 1997-A SUBI Portfolio, and funds therein shall not be
commingled with any other moneys, except as otherwise provided for or
contemplated in the Titling
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Trust Agreement as supplemented by this 1997-A SUBI Supplement or in the
1997-A Servicing Supplement. All amounts held in the 1997-A SUBI Lease
Funding Account shall be invested in Permitted Investments until distributed
or otherwise applied in accordance with the Titling Trust Agreement, this
1997-A SUBI Supplement or the 1997-A Servicing Supplement. All transfers of
funds into and out of the 1997-A SUBI Lease Funding Account shall be made in
accordance with Section 7.03 of the Titling Trust Agreement and Sections 3.02
and 4.02 of the 1997-A Servicing Supplement in connection with purchases of
Subsequent Contracts and Subsequent Leased Vehicles. Prior to the date, if
any, on which the Monthly Remittance Conditions cease to be satisfied, the
Servicer will instead be allowed to commingle the amounts to be reinvested in
additional Subsequent Contracts and Subsequent Leased Vehicles with its own
funds and to reinvest such amounts (by transfer of such amounts to the Lease
Funding Account or directly to the UTI Beneficiary, as appropriate) without
deposit into the 1997-A SUBI Collection Account or 1997-A SUBI Lease Funding
Account.
SECTION 17.03 INVESTMENT GAINS AND LOSSES.
All or a portion of the funds deposited into the 1997-A SUBI Accounts shall
be separately invested by the Titling Trustee or the 1997-A Securitization
Trustee, as applicable, from time to time at the direction of the Servicer, in
any Permitted Investments. All income, gain or loss from investment of monies
in the 1997-A SUBI Certificateholders' Account shall be for the account of the
Certificateholders; provided that each such investment shall be made in the name
of the 1997-A Securitization Trustee on behalf of the 1997-A Securitization
Trust, its nominee or its Financial Intermediary. All income, gain or loss from
investment of monies in the 1997-A SUBI Collection Account or 1997-A SUBI Lease
Funding Account shall be for the account of the Servicer; provided, that, each
such investment shall be made in the name of the Titling Trustee, its nominee or
its Financial Intermediary. All income, gain or loss from investment of monies
in the Lease Funding Account shall be for the account of the UTI Beneficiary;
provided, that, each such investment shall be made in the name of the Titling
Trustee, its nominee or its Financial Intermediary. If at any time the Servicer
shall not have given the 1997-A Securitization Trustee a timely investment
directive with respect to any 1997-A SUBI Account or shall not have given the
Titling Trustee a timely investment directive with respect to the Lease Funding
Account, the 1997-A Securitization Trustee or the Titling Trustee, as
appropriate, shall invest and reinvest any monies in such account(s) in a mutual
fund offered by the Trust Agent or another affiliate of the Titling Trustee
meeting the requirements of clause (i) of the definition of Permitted
Investments.
SECTION 17.04 REBALANCING AFTER THIRD-PARTY CLAIM.
To the extent that a third-party Claim against Titling Trust Assets is
satisfied out of Titling Trust Assets in proportions other than as provided in
Section 3.04 of the Titling Trust Agreement, then, notwithstanding anything to
the contrary contained herein, the Titling Trustee, at the direction of the
Servicer, shall promptly identify and reallocate (or cause the Servicer to
identify and reallocate) the remaining Titling Trust Assets among the UTI
Sub-Trust and each of the SUBI Sub-Trusts, including the 1997-A SUBI Sub-Trust,
such that each shall bear the expense of such Claim
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<PAGE>
as nearly as possible as if the burden thereof had been allocated as provided in
Section 3.04 of the Titling Trust Agreement.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
SECTION 18.01 GOVERNING LAW.
This 1997-A SUBI Supplement shall be created under and governed by and
construed under the internal laws of the State of Delaware, without regard to
any otherwise applicable principles of conflicts of laws, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
SECTION 18.02 EFFECT OF 1997-A SUBI SUPPLEMENT ON TITLING TRUST
AGREEMENT.
(a) Except as otherwise specifically provided herein: (i) the parties
shall continue to be bound by all provisions of the Titling Trust Agreement; and
(ii) the provisions set forth herein shall operate either as additions to or
modifications of the extant obligations of the parties under the Titling Trust
Agreement, as the context may require. In the event of any conflict between the
provisions of this 1997-A SUBI Supplement and the Titling Trust Agreement with
respect to the 1997-A SUBI, the provisions of this 1997-A SUBI Supplement shall
prevail.
(b) For purposes of determining the parties' obligations under this 1997-A
SUBI Supplement with respect to the 1997-A SUBI, general references in the
Titling Trust Agreement to: (i) a SUBI Account shall be deemed to refer more
specifically to the 1997-A SUBI Account; (ii) a SUBI Asset shall be deemed to
refer more specifically to a 1997-A SUBI Asset; (ii) an appropriate or
applicable SUBI Collection Account shall be deemed to refer more specifically to
the 1997-A SUBI Collection Account; (iv) an appropriate or applicable SUBI Lease
Funding Account shall be deemed to refer more specifically to a 1997-A SUBI
Lease Funding Account; (v) a SUBI Sub-Trust or SUBI Portfolio shall be deemed to
refer more specifically to the 1997-A SUBI Sub-Trust or 1997-A SUBI Portfolio,
as the case may be; (vi) a SUBI Supplement shall be deemed to refer more
specifically to this 1997-A SUBI Supplement; and (vii) a SUBI Servicing
Supplement shall be deemed to refer more specifically to the 1997-A Servicing
Supplement.
SECTION 18.03 AMENDMENT.
(a) Notwithstanding Section 9.01 of the Titling Trust Agreement, the
Titling Trust Agreement, as supplemented by this Supplement, to the extent that
it applies solely to the 1997-A SUBI and the 1997-A SUBI Portfolio, may be
amended from time to time by a writing signed by the Titling Trustee, the UTI
Beneficiary, each 1997-A SUBI Beneficiary and, to the extent that any such
amendment affects any obligation or interest of the Trust Agent, the Trust
Agent, in each case only
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with the prior written consent of the 1997-A Securitization Trustee and upon
prior written notice to each Rating Agency that includes the substance of the
proposed amendment.
SECTION 18.04 NOTICES.
The notice provisions of the Titling Trust Agreement shall apply equally to
this Supplement; provided, that, any notice to the 1997-A Securitization Trustee
shall be addressed as follows:
U.S. Bank National Association
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Attention: Toyota Auto Lease Trust 1997-A
A copy of each notice or other writing required to be delivered to the
Titling Trustee pursuant to the Titling Trust Agreement or this 1997-A SUBI
Supplement also shall be delivered to the 1997-A Securitization Trustee with
respect to the 1997-A Securitization Trust.
SECTION 18.05 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this 1997-A SUBI Supplement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this 1997-A
SUBI Supplement and shall in no way affect the validity or enforceability of the
other provisions of this 1997-A SUBI Supplement or of any 1997-A SUBI
Certificates or the rights of the holders thereof. To the extent permitted by
law, the parties hereto waive any provision of law that renders any provision of
this 1997-A SUBI Supplement invalid or unenforceable in any respect.
SECTION 18.06 COUNTERPARTS.
This 1997-A SUBI Supplement may be executed in any number of counterparts,
each of which so executed and delivered shall be deemed to be an original, but
all of which counterparts shall together constitute but one and the same
instrument.
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<PAGE>
IN WITNESS WHEREOF, TMCC, the Titling Trustee and, solely for the limited
purposes set forth herein, U.S. Bank National Association, as Trust Agent, have
caused this 1997-A SUBI Supplement to be duly executed by their respective
officers as of the day and year first above written.
TOYOTA MOTOR CREDIT CORPORATION,
Grantor, Servicer and UTI Beneficiary
By: /s/ George Borst
----------------------------------
Name: George Borst
Title: Senior Vice President and
General Manager
TMTT, INC., as Titling Trustee
By: /s/ Steven E. Charles
----------------------------------
Name: Steven E. Charles
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trust Agent
By: /s/ Steven E. Charles
----------------------------------
Name: Steven E. Charles
Title: Vice President
<PAGE>
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the _________ day of September 1997, before me, a notary public in and
for of the State of California, personally appeared George Borst, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in the capacity or capacities indicated in the within
instrument, and that by his signature on the instrument the person, or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
Notary Public
[Notary Seal]
<PAGE>
STATE OF__________________ )
) ss.:
COUNTY OF_________________ )
On the _________ day of September 1997, before me, a notary public in and
for of the State of ______________________________, personally appeared Steven
E. Charles, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in the capacity or capacities
indicated in the within instrument, and that by his signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
--------------------------------
Notary Public
[Notary Seal]
<PAGE>
STATE OF__________________ )
) ss.:
COUNTY OF_________________ )
On the _________ day of September 1997, before me, a notary public in and
for of the State of __________________________________, personally appeared
Steven E. Charles, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in the capacity or
capacities indicated in the within instrument, and that by her signature on the
instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
--------------------------------
Notary Public
[Notary Seal]
<PAGE>
SCHEDULE I
SCHEDULE OF 1997-A CONTRACTS AND
1997-A LEASED VEHICLES AS OF AUGUST 1, 1997
`
[Omitted. On file with the Servicer, the Titling Trustee and the 1997-A
Securitization Trustee.]
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<PAGE>
EXHIBIT A
FORM OF 1997-A SUBI CERTIFICATE
TOYOTA LEASE TRUST
1997-A SPECIAL UNIT OF BENEFICIAL INTEREST CERTIFICATE
evidencing a fractional undivided interest in the 1997-A SUBI
Sub-Trust (as defined below).
(This Certificate does not represent any obligation of, or an interest
in, Toyota Motor Credit Corporation, Toyota Motor Sales, U.S.A., Inc.,
TMTT, Inc., Toyota Leasing, Inc. ("TLI") or any of their respective
affiliates.)
Number ___
THIS CERTIFIES THAT _________________________ is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in the 1997-A SUBI (the
"1997-A SUBI") comprised of interests in the assets of the 1997-A SUBI Sub-Trust
(the "1997-A Sub-Trust") of the Toyota Lease Trust, a Delaware business trust
(the "Titling Trust") formed by Toyota Motor Credit Corporation, as Grantor and
UTI Beneficiary (in such capacities, the "Grantor" and the "UTI Beneficiary"
respectively), and TMTT, Inc., a Delaware corporation, as trustee (the "Titling
Trustee") pursuant to a Trust and Servicing Agreement, as the same was amended
and restated pursuant to an Amended and Restated Trust and Servicing Agreement
(the "Titling Trust Agreement"), each dated and effective as of October 1, 1996,
among the Grantor, the Titling Trustee, and, for certain limited purposes set
forth therein, U.S. Bank National Association (formerly known as First Bank
National Association), a national banking association, as trust agent (the
"Trust Agent"). A summary of certain of the provisions of the Titling Trust
Agreement is set forth below. Capitalized terms used and not otherwise defined
herein have the meanings ascribed thereto in the Titling Trust Agreement and
1997-A SUBI Supplement.
This Certificate is the only duly authorized 1997-A SUBI Certificate issued
under the Titling Trust Agreement, as supplemented by the 1997-A SUBI Supplement
(the "1997-A SUBI Supplement") dated as of September 1, 1997, among the UTI
Beneficiary, the Titling Trustee and, for certain limited purposes only set
forth therein, the Trust Agent (the "1997-A SUBI Certificate"). This 1997-A
SUBI Certificate is subject to the terms, provisions and conditions of the
Titling Trust Agreement and the 1997-A SUBI Supplement, to which agreements each
1997-A SUBI Beneficiary by virtue of the acceptance hereof or of any interest
herein hereby assents and by which such SUBI Beneficiary is bound.
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Also issued or to be issued under the Titling Trust Agreement are various
other series of certificates evidencing undivided interests in other Sub-Trusts
of the Titling Trust. A single UTI Certificate has been issued to the UTI
Beneficiary, no Other SUBI Certificate had been issued as of the date this
1997-A SUBI Certificate was issued, but SUBI Certificates representing 100% of
the undivided interests in each other SUBI to be formed will be issued at the
time each related SUBI Sub-Trust is formed.
The property of the Titling Trust includes, or will include, among other
things: (i) any capital contributed by the Grantor; (ii) the Contracts and all
proceeds thereof; (iii) the Leased Vehicles and all proceeds thereof, including
each Certificate of Title and the Residual Value of each Leased Vehicle, whether
realized through the exercise by Obligors of purchase options under the
Contracts, the proceeds of sale of the Leased Vehicles to Dealers or third
parties or through payments received from any other Person (directly or
indirectly) under any related Insurance Policy (to the extent not applied to
making repairs to the related Leased Vehicle or otherwise paid to the Obligor, a
third Person or Governmental Authority by the Servicer as required by law or
pursuant to its normal servicing practices) or as a subsidy or other funding of
any modification of the related Residual Value; (iv) all of the Titling Trust's
rights with respect to any Contract or Leased Vehicle, including the right to
enforce and to proceeds arising from all Dealer repurchase obligations arising
under Dealer Agreements; (v) all of TMCC's rights with respect to any Contract
or Leased Vehicle, including the right to enforce and to proceeds arising from
all Dealer repurchase obligations arising under Dealer Agreements; (vi) any
Insurance Policy and rights thereunder or proceeds therefrom relating to any of
the Contracts, Leased Vehicles or payments of the related Obligors with respect
thereto (to the extent not applied to making repairs to the related Leased
Vehicle or otherwise paid to the Obligor, a third Person or Governmental
Authority by the Servicer as required by law or pursuant to its normal
servicing practices); (vii) any portion of any Security Deposit actually and
properly applied by the Servicer against amounts due under the related Contract,
to the extent not applied to making repairs to the related Leased Vehicle or
paid to the Obligor, a third Person or Governmental Authority in accordance with
the Servicer's normal servicing practices; and (viii) all proceeds of any of the
foregoing (such assets, the "Titling Trust Assets"). The Titling Trust
Agreement provides that, from time to time, the Titling Trust Assets will be
identified and allocated on the records of the Titling Trust into one or more
separate Sub-Trusts comprised of identified Titling Trust Assets (such
Sub-Trusts the "UTI Sub-Trust" or a "SUBI Sub-Trust", as the case may be, and
the related assets, "UTI Assets" or "SUBI Assets", as the case may be).
Pursuant to the 1997-A SUBI Supplement, the 1997-A SUBI Assets were
identified and allocated on the records of the Titling Trust as a separate SUBI
Sub-Trust (the "1997-A SUBI Sub-Trust"), and the beneficial interest in the
1997-A SUBI Sub-Trust was designated as a separate SUBI known as the "1997-A
SUBI". The rights of the Beneficiaries of the 1997-A SUBI Certificate to
certain of the proceeds of the 1997-A SUBI Assets are and will be further set
forth in the Titling Trust Agreement and the 1997-A SUBI Supplement.
The 1997-A SUBI Certificates are limited in right of payment to certain
collections and recoveries respecting the Contracts (and the related Obligors)
and the Leased Vehicles allocated to
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the 1997-A SUBI Sub-Trust, all to the extent and as more specifically set forth
in the Titling Trust Agreement and the 1997-A SUBI Supplement. Copies of the
Titling Trust Agreement and the 1997-A SUBI Supplement may be examined during
normal business hours at the principal office of the Titling Trustee, and at
such other places, if any, designated by the Titling Trustee, by each 1997-A
SUBI Beneficiary upon request.
By accepting this 1997-A SUBI Certificate or any interest herein, the
related SUBI Beneficiary waives any claim to any proceeds or assets of the
Titling Trustee and to all of the Titling Trust Assets other than those from
time to time included within the 1997-A SUBI Sub-Trust and those proceeds or
assets derived from or earned by the 1997-A SUBI Assets. In addition, by
accepting this 1997-A SUBI Certificate or any interest herein, the related SUBI
Beneficiary hereby expressly subordinates any claim or interest in or to any
proceeds or assets of the Titling Trustee and to all of the Titling Trust Assets
other than those from time to time included within the 1997-A SUBI Sub-Trust
that may be determined to exist in favor of such SUBI Beneficiary
notwithstanding the foregoing disclaimer to the rights and interests of each
SUBI Beneficiary with respect to another SUBI.
The Titling Trust Agreement and 1997-A SUBI Supplement permits, with
certain exceptions therein provided, the amendment thereof and the modification
of the rights and obligations of the parties thereto with respect to the 1997-A
SUBI Assets, the 1997-A SUBI Sub-Trust and the 1997-A SUBI and the rights of
Beneficiaries of the 1997-A SUBI Certificate at any time by a writing signed by
the Titling Trustee, the UTI Beneficiary, each 1997-A SUBI Beneficiary and, to
the extent that any such amendment affects any obligation or interest of the
Trust Agent, the Trust Agent, in each case only with the prior written consent
of the 1997-A Securitization Trustee and upon receipt of written notice from
each Rating Agency that the proposed amendment will not cause such Rating Agency
to reduce or withdraw any then current rating on any class of securities issued
by the 1997-A Securitization Trust that was initially issued at the request of
the UTI Beneficiary. If approval of any 1997-A SUBI Beneficiary is required,
any such consent shall be conclusive and binding on such Beneficiary and on all
future Beneficiaries hereof whether or not notation of such consent is made upon
this 1997-A SUBI Certificate.
As provided in the Titling Trust Agreement and the 1997-A SUBI Supplement,
this 1997-A SUBI Certificate and the underlying interests represented hereby may
not be transferred or assigned, except in accordance with the provisions
thereof.
Prior to due presentation of this 1997-A SUBI Certificate for registration
of a permitted transfer, the Titling Trustee, the certificate registrar and any
of their respective agents may treat the person or entity in whose name this
1997-A SUBI Certificate is registered as the owner hereof for the purpose of
receiving distributions and for all other purposes, and, except as provided for
in the Titling Trust Agreement, neither the Titling Trustee, the certificate
registrar nor any such agent shall be affected by any notice to the contrary.
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<PAGE>
Unless this 1997-A SUBI Certificate shall have been executed by an
authorized officer of the Titling Trustee, by manual signature, this 1997-A SUBI
Certificate shall not entitle the holder hereof to any benefit under the Titling
Trust Agreement or the 1997-A SUBI Supplement or be valid for any purpose.
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<PAGE>
IN WITNESS WHEREOF, the Titling Trustee on behalf of the Titling Trust and
not in its individual capacity has caused this 1997-A SUBI Certificate to be
duly executed.
Dated: TOYOTA LEASE TRUST
By: TMTT, INC., as Titling Trustee
By:
-------------------------------
Authorized Officer
ATTEST:
- ----------------------------
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<PAGE>
ANNEX OF SUPPLEMENTAL DEFINITIONS
Unless otherwise specified in the agreement to which this Annex of
Supplemental Definitions is attached or which refers to this Annex of
Supplemental Definitions, the following terms have the indicated meanings.
Terms defined herein but not directly or indirectly used or referenced in such
agreement shall not be deemed to have any meaning or significance with respect
to such agreement.
"1997-A CONTRACTS" means the Contracts allocated to the 1997-A SUBI and
1997-A SUBI Sub-Trust pursuant to the 1997-A SUBI Supplement, including those
allocated during the Revolving Period.
"1997-A LEASED VEHICLES" means the Leased Vehicles allocated to the 1997-A
SUBI and 1997-A SUBI Sub-Trust pursuant to the 1997-A SUBI Supplement, including
those allocated during the Revolving Period.
"1997-A PROSPECTUS" means that Prospectus dated September 11, 1997,
relating to the public offering of the Investor Certificates issued by the
1997-A Securitization Trust.
"1997-A SECURITIZATION TRUST" means the trust created by the 1997-A
Securitization Trust Agreement, the estate of which consists or will consist of
(i) the 1997-A SUBI, the 1997-A SUBI Certificate, and all monies due and to
become due thereunder on and after the Cutoff Date, excluding any proceeds of
the Residual Value Insurance Policy whether or not relating to any assets of the
1997-A SUBI Portfolio; (ii) such monies as are from time to time deposited in
each of the 1997-A SUBI Accounts; (iii) all rights accruing to the holder of the
1997-A SUBI as a third-party beneficiary of the Titling Trust Agreement, the
1997-A SUBI Supplement, the 1997-A Servicing Supplement and the Reserve Fund;
and (iv) all proceeds of the foregoing.
"1997-A SECURITIZATION TRUST AGREEMENT" means that certain Securitization
Trust Agreement, dated as of September 1, 1997, between the Transferor and
1997-A Securitization Trustee, pursuant to which the 1997-A SUBI Certificate
will be transferred to the 1997-A Securitization Trustee, in that capacity, in
connection with the Securitized Financing of the 1997-A SUBI by the Transferor.
"1997-A SECURITIZATION TRUSTEE" means U.S. Bank National Association in its
capacity, as trustee under the 1997-A Securitization Trust Agreement and any
successor trustee appointed thereunder.
"1997-A SERVICING SUPPLEMENT" means the Servicing Supplement to the Titling
Trust Agreement dated as of September 1, 1997 and relating to the servicing of
the 1997-A SUBI.
"1997-A SUBI" means the SUBI created pursuant to the 1997-A SUBI
Supplement.
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<PAGE>
"1997-A SUBI ACCOUNT" means each or any of the 1997-A SUBI Collection
Account, the 1997-A SUBI Certificateholders' Account and the 1997-A SUBI Lease
Funding Account.
"1997-A SUBI ASSETS" means the 1997-A Contracts, 1997-A Leased Vehicles and
related Titling Trust Assets allocated to the 1997-A SUBI and 1997-A SUBI
Sub-Trust pursuant to the 1997-A SUBI Supplement, including those allocated
during the Revolving Period.
"1997-A SUBI CERTIFICATE" means the SUBI Certificate issued by the Titling
Trust pursuant to the 1997-A SUBI Supplement evidencing the 1997-A SUBI.
"1997-A SUBI CERTIFICATE PURCHASE AND SALE AGREEMENT" means the 1997-A SUBI
Certificate Purchase and Sale Agreement, dated as of September 1, 1997, pursuant
to which TMCC will sell to the Transferor, without recourse, all of its right,
title and interest in and to the 1997-A SUBI and the 1997-A SUBI Certificate and
the proceeds thereof.
"1997-A SUBI CERTIFICATEHOLDERS' ACCOUNT" means the account established by
the 1997-A Securitization Trustee for the benefit of the Certificateholders
pursuant to Section 3.02 of the 1997-A Securitization Trust Agreement.
"1997-A SUBI CERTIFICATEHOLDERS' ACCOUNT INTEREST DEPOSIT" with respect to
any Monthly Allocation Date means the amount to be deposited into the 1997-A
SUBI Certificateholders' Account in respect of Interest Collections for the
related Collection Period, which will be an amount thereof equal to the product
of Aggregate Net Investment Value as of the first day of such Collection Period
and one twelfth of the weighted average of the Certificate Rates for each
outstanding Class of Certificates (weighted on the basis of their outstanding
Class Certificate Balances as of the first day of such Collection Period).
"1997-A SUBI COLLECTION ACCOUNT" means the SUBI Collection Account
established pursuant to the 1997-A SUBI Supplement and designated as the "1997-A
SUBI Collection Account".
"1997-A SUBI" has the meaning set forth in Section 2.02 of the 1997-A
Securitization Trust Agreement.
"1997-A SUBI LEASE FUNDING ACCOUNT" means the SUBI Lease Funding Account,
if any, established pursuant to Section 17.02 of the SUBI Supplement.
"1997-A SUBI PORTFOLIO" means the SUBI Portfolio that includes the 1997-A
Contracts and 1997-A Leased Vehicles allocated to the 1997-A SUBI and 1997-A
SUBI Sub-Trust pursuant to the 1997-A SUBI Supplement.
"1997-A SUBI SUB-TRUST" means the SUBI Sub-Trust created pursuant to the
1997-A SUBI Supplement including as its assets the 1997-A SUBI Portfolio and the
related Titling Trust Assets.
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"1997-A SUBI SUPPLEMENT" means the SUBI Supplement to the Titling Trust
Agreement dated as of September 1, 1997 pursuant to which the Titling Trustee,
at the direction of the UTI Beneficiary, creates the 1997-A SUBI Sub-Trust and
the 1997-A SUBI and issues the 1997-A SUBI Certificate.
"ADDITIONAL LOSS AMOUNT" means, with respect to any Collection Period, an
amount equal to the sum of (a) all amounts of losses incurred in respect of any
uninsured liability to third parties (i.e., litigation risk) on the part of the
Titling Trust that is ultimately borne by the SUBI Assets during such Collection
Period, whether such liability is incurred (i) with respect to the 1997-A SUBI
Assets and is therefore allocated to the 1997-A SUBI Assets pursuant to the
1997-A SUBI Supplement, (ii) with respect to the Titling Trust Assets generally
and a pro rata portion of such liability is allocated to the 1997-A SUBI Assets
pursuant to the Titling Trust Agreement or (iii) with respect to UTI Assets or
Other SUBI Assets if such UTI Assets or Other SUBI Assets are insufficient to
pay such liability and a portion thereof is therefore allocated to the 1997-A
SUBI Assets pursuant to the Titling Trust Agreement and (b) all monies reserved
within the 1997-A SUBI Collection Account against future losses in respect of
such liabilities by the Servicer on behalf of the 1997-A Securitization Trustee
as of the last day of such Collection Period.
"ADDITIONAL LOSS CONTRACT" means, with respect to any SUBI Portfolio, a
Contract included in such SUBI Portfolio that has been sold or otherwise
disposed of to pay an Additional Loss Amount with respect to the related SUBI.
"ADJUSTED CERTIFICATE BALANCE" means, with respect to any date for any
Class of Certificates, the Initial Class Certificate Balance thereof reduced by
the sum of all amounts deposited into the 1997-A SUBI Certificateholders'
Account in respect of principal on such Class plus the amount of all
unreimbursed Loss Amounts and Certificate Principal Loss Amounts allocated
thereto (and in the case of the Class B Certificates, minus the aggregate amount
of unreimbursed Class B Available Principal applied to cover interest shortfalls
and reimburse Loss Amounts and Certificate Principal Loss Amounts allocated to
the Class A Certificates).
"AGGREGATE NET INVESTMENT VALUE" means, as of any day, the sum of (i) the
aggregate of the Discounted Principal Balances of all 1997-A Contracts at such
date, each such Discounted Principal Balance being derived from the Schedule of
Contracts and Leased Vehicles as in effect on such date; PROVIDED that as of the
last day of any Collection Period, there shall be eliminated from the Schedule
of Contracts and Leased Vehicles for the purpose of this definition (including
the determination at any subsequent time of the Aggregate Net Investment Value
as of the last day of any Collection Period) each 1997-A Contract that became a
Charged-off, Liquidated, Matured or Additional Loss Contract before the end of
such Collection Period, (ii) the aggregate of the Booked Residual Values of
those 1997-A Leased Vehicles that have been added to Matured Leased Vehicle
Inventory within the three immediately preceding Collection Periods as the
related 1997-A Contracts have reached their Maturity Dates and have been
terminated, but which have not been sold or otherwise disposed of as of the last
day of the most recent Collection Period for no more than three full Collection
Periods, each such Booked Residual Value being derived from the Schedule of
Contracts and Leased
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<PAGE>
Vehicles as in effect on such date plus certain related charges, and (iii) prior
to the last Transfer Date, the aggregate amount of Principal Collections that
have not been reinvested in additional 1997-A Contracts and 1997-A Leased
Vehicles pursuant to Section 3.02 of the 1997-A Servicing Supplement. As of the
Cutoff Date, the Aggregate Net Investment Value was $1,231,231,519.20.
"AGGREGATE NET LOSSES" means, with respect to a Collection Period, an
amount equal to the aggregate Discounted Principal Balances of all 1997-A
Contracts that became Charged-off Contracts during such Collection Period minus
the sum of (x) all Net Repossessed Vehicle Proceeds and other Net Liquidation
Proceeds collected during such Collection Period with respect to Charged-off
Contracts and (y) the portion of amounts subsequently received in respect of
Contracts liquidated in prior Collection Periods.
"AMORTIZATION DATE" means October 1, 1998.
"AMORTIZATION PERIOD" means the period beginning with the day immediately
succeeding the last day of the Revolving Period and ending on the day the Class
Certificate Balance of each Class of Investor Certificates has been reduced to
zero and all unpaid Class A-1 Certificate Principal Loss Amounts, Class A-2
Certificate Principal Loss Amounts, the Class A-3 Certificate Principal Loss
Amounts, Class B Certificate Principal Loss Amounts and Class B Available
Principal amounts previously applied to cover shortfalls and losses allocated to
the Class A Certificates have been paid in full, in each case with accrued
interest thereon, or the 1997-A Securitization Trust otherwise terminates.
"APPLICANTS" shall have the meaning specified in Section 4.06 of the 1997-A
Securitization Trust Agreement.
"AVAILABLE INTEREST" means, with respect to any Monthly Allocation Date, an
amount equal to the sum of (i) the Investor Percentage of Interest Collections
for the related Collection Period less any portion of such Interest Collections
used to reimburse Advances and any Nonrecoverable Advances plus (ii) investment
income (net of investment losses) on Permitted Investments of amounts in the
1997-A SUBI Certificateholders' Account from the prior Monthly Allocation Date
to but not including the current Monthly Allocation Date.
"BOOK-ENTRY CERTIFICATES" means a beneficial interest in the Class A
Certificates, ownership and transfers of which shall be made through book
entries by a Clearing Agency.
"CAPPED CONTINGENT AND EXCESS LIABILITY PREMIUMS" means, with respect to
any Monthly Allocation Date, an amount sufficient to pay or reserve for payment
of one-twelfth of the portion of the annual premium payable on the Contingent
and Excess Liability Insurance Policies allocable to the 1997-A SUBI, up to but
not exceeding $300,000 in any calendar year.
"CAPPED SECURITIZATION TRUST ADMINISTRATIVE EXPENSES" means, with respect
to any Monthly Allocation Date, the 1997-A Securitization Trustee's compensation
and other Administrative
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Expenses with respect to the 1997-A Securitization Trust payable or reimbursable
thereto on such Monthly Allocation Date under the 1997-A Securitization Trust
Agreement, including those due under Section 6.05 of the 1997-A Securitization
Trust Agreement; provided that the amount so payable and/or reimbursable on such
Monthly Allocation Date, taken together with all such compensation and
Administrative Expenses paid or reimbursed since the beginning of the calendar
year in which such Monthly Allocation Date occurs, will not exceed $75,000 (or
$125,000 in any year in which an Early Amortization Event occurs with respect to
which the 1997-A Securitization Trustee sells or otherwise disposes of the
property of the 1997-A Securitization Trust pursuant to Section 8.02 of the
1997-A Securitization Trust Agreement).
"CAPPED TITLING TRUST ADMINISTRATIVE EXPENSES" means, with respect to any
Monthly Allocation Date, the Titling Trustee's compensation and other
Administrative Expenses with respect to the Titling Trust allocable to the
1997-A SUBI and payable or reimbursable thereto on such Monthly Allocation Date
under the 1997-A Securitization Trust Agreement, including those due under
Section 6.13 of the Titling Trust Agreement; provided that the amount so payable
and/or reimbursable on such Monthly Allocation Date, taken together with all
such compensation and Administrative Expenses paid or reimbursed since the
beginning of the calendar year in which such Monthly Allocation Date occurs,
will not exceed $100,000.00 in any calendar year.
"CERTIFICATE BALANCE" initially means the Initial Certificate Balance and,
as of any date, means the sum of the Class A Certificate Balance and the Class B
Certificate Balance as of the close of business on such date, after giving
effect to any changes therein on such date.
"CERTIFICATE DISTRIBUTION AMOUNT" means, with respect to any Monthly
Allocation Date and any Class of Certificates, the aggregate of the amounts
being allocated or distributed to the Holders thereof on such date.
"CERTIFICATE FACTOR" means, with respect to any Monthly Allocation Date, a
seven-digit decimal figure equal to the Certificate Balance as of the close of
business on such Monthly Allocation Date divided by the Initial Certificate
Balance.
"CERTIFICATE OWNER" means, with respect to a Book-Entry Certificate, the
Person who is the owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly or as an indirect participant in accordance
with the rules of such Clearing Agency) and shall mean, with respect to a
Definitive Certificate, the related Certificateholder.
"CERTIFICATE PAYMENT DATE" means, with respect to any Class of
Certificates, (i) each Monthly Allocation Date in March or September (on which
dates the related Certificateholders are entitled to distributions in respect of
interest accrued on such Certificates), (ii) the related Targeted Maturity Date
(on which date the related Certificateholders are entitled to distributions in
respect of principal, including reimbursements of Loss Amounts and Certificate
Principal Loss Amounts allocated thereto, and in the case of the Class B
Certificates, reimbursements of applied Class B Available
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Principal, of such Certificates), (iii) if the related Class is not paid in
full on the related Targeted Maturity Date, each subsequent Monthly Allocation
Date until the Monthly Allocation Date on which such Class of Certificates is
paid in full (on which dates the related Certificateholders are entitled to
distributions in respect of principal (including reimbursements of Loss Amounts
and Certificate Principal Loss Amounts allocated thereto, and in the case of the
Class B Certificates, reimbursements of applied Class B Available Principal) of
such Certificates and interest accrued on such Certificates), and (iv) following
the occurrence of a Monthly Payment Event each Monthly Allocation Date will be a
Certificate Payment Date with respect to interest, and Monthly Allocation Dates
during the Amortization Period will be Certificate Payment Dates with respect to
principal, (including reimbursements of Loss Amounts and Certificate Principal
Loss Amounts allocated thereto, and in the case of the Class B Certificates,
reimbursements of applied Class B Available Principal).
"CERTIFICATE PRINCIPAL LOSS AMOUNTS" means, with respect to any Monthly
Allocation Date and Class of Certificates, the aggregate amount of Loss Amounts
allocated to such Class of Certificates on such date pursuant to Section 3.01(b)
of the 1997-A Securitization Trust Agreement, less any reimbursement thereof
from amounts on deposit in the Reserve Fund, Transferor Amounts, Class B
Available Principal (in the case of the Class A Certificates only) and Available
Interest applied to cover such Loss Amounts in accordance with Article Three of
the 1997-A Securitization Trust Agreement.
"CERTIFICATE RATE" means the Class A-1 Rate, the Class A-2 Rate, the Class
A-3 Rate or the Class B Rate, as indicated by the context.
"CERTIFICATE REGISTER" means the register of Certificateholders maintained
by the 1997-A Securitization Trustee pursuant to Section 4.03 of the 1997-A
Securitization Trust Agreement.
"CERTIFICATE REGISTRAR" means the 1997-A Securitization Trustee unless a
successor thereto is appointed pursuant to Section 4.03 of the 1997-A
Securitization Trust Agreement.
"CERTIFICATEHOLDER" or "HOLDER" means the Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving any consent, waiver, request or demand pursuant to the
1997-A Securitization Trust Agreement, the interest evidenced by any Certificate
registered in the name of the Transferor, TMCC, or any Person controlling,
controlled by or under common control with the Transferor 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.
"CERTIFICATES" means, collectively, the Class A-1 Certificates, the Class
A-2 Certificates, the Class A-3 Certificates, the Class B Certificates and the
Transferor Certificate.
"CHARGE-OFF RATE" means, with respect to any Collection Period, the
Aggregate Net Losses with respect to 1997-A Contracts that became Charged-off
Contracts during such Collection Period
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expressed, on an annualized basis, as a percentage of the average of (i) the
Aggregate Net Investment Value on the last day of the immediately preceding
Collection Period and (ii) the Aggregate Net Investment Value on the last day of
such Collection Period.
"CHARGED-OFF AMOUNT" means, with respect to any Collection Period, the
aggregate of the Discounted Principal Balances of all 1997-A Contracts that
became Charged-off Contracts during such Collection Period.
"CLASS A CERTIFICATES" means the Class A-1, Class A-2 and Class A-3
Certificates.
"CLASS A CERTIFICATE BALANCE" means the sum of the Class A-1 Certificate
Balance, the Class A-2 Certificate Balance and the Class A-3 Certificate
Balance.
"CLASS A CERTIFICATEHOLDER" means any Holder of a Class A-1 Certificate,
Class A-2 Certificate or Class A-3 Certificate.
"CLASS A INTEREST CARRYOVER SHORTFALL" with respect to any Monthly
Allocation Date will equal the excess, if any, of (x) the aggregate amount of
interest accrued on the Class A Certificate Balances and unreimbursed
Certificate Principal Loss Amounts previously allocated thereto at the related
Certificate Rates during the period from the prior Monthly Allocation Date to
but not including the current Monthly Allocation Date, plus any outstanding
Class A Interest Carryover Shortfall from the immediately preceding Monthly
Allocation Date, plus interest on such outstanding Class A Interest Carryover
Shortfall, to the extent permitted by law, at the weighted average of the Class
A Certificate Rates for such period, over (y) the sum of the Interest
Collections deposited into or net investment income retained in the 1997-A SUBI
Certificateholders' Account and/or distributed to Class A Certificateholders in
respect of interest on such Monthly Allocation Date.
"CLASS A-1 ADDITIONAL LOSS AMOUNT" means, as of any Monthly Allocation
Date, an amount equal to the product of (i) the Class A-1 Allocation Percentage,
(ii) the Investor Percentage with respect to Loss Amounts for the related
Collection Period and (iii) the portion of the Additional Loss Amount incurred
in respect of such Collection Period that is allocable to the 1997-A SUBI.
"CLASS A-1 ALLOCATION PERCENTAGE" means, as of any Monthly Allocation Date,
the Class A-1 Certificate Balance as of the last day of the related Collection
Period as a percentage of the Certificate Balance as of such date.
"CLASS A-1 CERTIFICATE" means one of the Certificates executed and
authenticated by the 1997-A Securitization Trustee in substantially the form set
forth in the 1997-A Securitization Trust Agreement.
"CLASS A-1 CERTIFICATE BALANCE" means, initially, the Initial Class A-1
Certificate Balance and, on any date, shall equal the initial Class A-1
Certificate Balance, reduced by the sum of (i) all amounts distributed to Class
A-1 Certificateholders and allocable to principal on or prior to such date
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and (ii) the amount, if any, by which (a) the aggregate of all Class A-1
Certificate Principal Loss Amounts on or prior to such date exceeds (b) the
aggregate of all Class A-1 Certificate Principal Loss Amounts reimbursed or
deemed reimbursed on or prior to such date.
"CLASS A-1 CERTIFICATE FACTOR" means, with respect to any Monthly
Allocation Date, a seven-digit decimal figure equal to the Class A-1 Certificate
Balance as of the close of business on such Monthly Allocation Date (after
giving effect to all changes in the Class A-1 Certificate Balance made on that
date) divided by the Initial Class A-1 Certificate Balance.
"CLASS A-1 CERTIFICATEHOLDER" means any Holder of a Class A-1 Certificate.
"CLASS A-1 CERTIFICATE PRINCIPAL LOSS AMOUNT" means, with respect to any
Monthly Allocation Date, the amount, if any, by which (i) Loss Amounts allocable
to the Class A-1 Certificates for the related Collection Period and any
previously unreimbursed Class A-1 Certificate Principal Loss Amount exceeds (ii)
the amount available to be distributed in respect of the Class A-1 Certificates
pursuant to Section 3.01(b)(viii) of the 1997-A Securitization Trust Agreement
on such Monthly Allocation Date.
"CLASS A-1 INTEREST CARRYOVER SHORTFALL" means, with respect to any Monthly
Allocation Date, the excess, if any, of (i) the Class A-1 Interest Distributable
Amount for such Monthly Allocation Date plus any outstanding Class A-1 Interest
Carryover Shortfall from the immediately preceding Monthly Allocation Date plus
interest on such outstanding Class A-1 Interest Carryover Shortfall, to the
extent permitted by law, at the Class A-1 Certificate Rate from such immediately
preceding Monthly Allocation Date to but not including the current Monthly
Allocation Date, over (ii) the amount of interest (whether from Available
Interest or amounts applied pursuant to Section 3.01(e) of the 1997-A
Securitization Trust Agreement) allocated or distributed to Class A-1
Certificateholders on such current Monthly Allocation Date.
"CLASS A-1 INTEREST DISTRIBUTABLE AMOUNT" means, with respect to any
Monthly Allocation Date, (a) the product of (i) one-twelfth of the Class A-1
Certificate Rate (or in case of the first Monthly Allocation Date, of 0.27778%
of the Class A-1 Rate) and (ii) the Class A-1 Certificate Balance as of the
immediately preceding Monthly Allocation Date (after giving effect to changes in
the Class A-1 Certificate Balance made on such immediately preceding Monthly
Allocation Date) or, in the case of the first Monthly Allocation Date, the
Initial Class A-1 Certificate Balance, plus (b) interest accrued during such
period at the Class A-1 Rate on unreimbursed Class A-1 Certificate Principal
Loss Amounts.
"CLASS A-1 PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any
Monthly Allocation Date related to a Collection Period commencing during the
Amortization Period, the amount (if any) that is distributable in respect of
principal of the Class A-1 Certificates to the Class A-1 Certificateholders
pursuant to Section 3.01 (d) of the 1997-A Securitization Trust Agreement.
"CLASS A-1 RATE" means 6.20% per annum.
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"CLASS A-1 TARGETED MATURITY DATE" means September 27, 1999.
"CLASS A-2 ALLOCATION PERCENTAGE" means, as of any Monthly Allocation Date,
the Class A-2 Certificate Balance as of the last day of the related Collection
Period as a percentage of the Certificate Balance as of such date.
"CLASS A-2 CERTIFICATE" means one of the Certificates executed and
authenticated by the 1997-A Securitization Trustee in substantially the form set
forth in the 1997-A Securitization Trust Agreement.
"CLASS A-2 CERTIFICATE BALANCE" means, initially, the Initial Class A-2
Certificate Balance and, on any date, shall equal the Initial Class A-2
Certificate Balance, reduced by the sum of (i) all amounts distributed to Class
A-2 Certificateholders in respect of principal of the Class A-2 Certificates on
or prior to such date and (ii) the amount, if any, by which (a) the aggregate of
all Class A-2 Certificate Principal Loss Amounts on or prior to such date
exceeds (b) the aggregate of all Class A-2 Certificate Principal Loss Amounts
reimbursed or deemed reimbursed on or prior to such date.
"CLASS A-2 CERTIFICATE FACTOR" means, with respect to any Monthly
Allocation Date, a seven-digit decimal figure equal to the Class A-2 Certificate
Balance as of the close of business on such Monthly Allocation Date (after
giving effect to all changes in the Class A-2 Certificate Balance made on that
date) divided by the Initial Class A-2 Certificate Balance.
"CLASS A-2 CERTIFICATEHOLDER" means any Holder of a Class A-2 Certificate.
"CLASS A-2 CERTIFICATE PRINCIPAL LOSS AMOUNT" means, with respect to any
Monthly Allocation Date, the amount, if any, by which (i)Loss Amounts allocable
to the Class A-2 Certificates for the related Collection Period and any
previously unreimbursed Class A-2 Certificate Principal Loss Amount exceeds (ii)
the amount available to be distributed in respect of the Class A-2 Certificates
pursuant to Section 3.01(b)(viii) of the 1997-A Securitization Trust Agreement
on such Monthly Allocation Date.
"CLASS A-2 INTEREST CARRYOVER SHORTFALL" means, with respect to any Monthly
Allocation Date, the excess, if any, of (i) the Class A-2 Interest Distributable
Amount for such Monthly Allocation Date plus any outstanding Class A-2 Interest
Carryover Shortfall from the immediately preceding Monthly Allocation Date plus
interest on such outstanding Class A-2 Interest Carryover Shortfall, to the
extent permitted by law, at the Class A-2 Rate from such immediately preceding
Monthly Allocation Date to but not including the current Monthly Allocation
Date, over (ii) the amount of interest (whether from Available Interest or
amounts applied pursuant to Section 3.01(e) of the 1997-A Securitization Trust
Agreement) allocated or distributed to Class A-2 Certificateholders on such
current Monthly Allocation Date.
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"CLASS A-2 INTEREST DISTRIBUTABLE AMOUNT" means, with respect to any
Monthly Allocation Date, (a) the product of (i) one-twelfth of the Class A-2
Rate (or in the case of the first Monthly Allocation Date, of 0.27778% of the
Class A-2 Rate) and (ii) the Class A-2 Certificate Balance as of the immediately
preceding Monthly Allocation Date (after giving effect to changes in the Class
A-2 Certificate Balance made on such immediately preceding Monthly Allocation
Date) or, in the case of the first Monthly Allocation Date, the Initial Class
A-2 Certificate Balance, plus (b) interest accrued during such period at the
Class A-2 Rate on unreimbursed Class A-2 Certificate Principal Loss Amounts.
"CLASS A-2 PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any
Monthly Allocation Date related to a Collection Period commencing during the
Amortization Period, the amount (if any) that is distributable to the Class A-2
Certificateholders pursuant to Section 3.01(d) of the 1997-A Securitization
Trust Agreement.
"CLASS A-2 RATE" means 6.35% per annum.
"CLASS A-2 TARGETED MATURITY DATE" means September 25, 2000.
"CLASS A-3 ALLOCATION PERCENTAGE" means, as of any Monthly Allocation Date,
the Class A-3 Certificate Balance as of the last day of the related Collection
Period as a percentage of the Certificate Balance as of such date.
"CLASS A-3 CERTIFICATE" means one of the Certificates executed and
authenticated by the 1997-A Securitization Trustee in substantially the form set
forth in the 1997-A Securitization Trust Agreement.
"CLASS A-3 CERTIFICATE BALANCE" means, initially, the Initial Class A-3
Certificate Balance and, on any date, shall equal the Initial Class A-3
Certificate Balance, reduced by the sum of (i) all amounts distributed to Class
A-3 Certificateholders in respect of principal of the Class A-3 Certificates on
or prior to such date and (ii) the amount, if any, by which (a) the aggregate of
all Class A-3 Certificate Principal Loss Amounts on or prior to such date
exceeds (b) the aggregate of all Class A-3 Certificate Principal Loss Amounts
reimbursed or deemed reimbursed on or prior to such date.
"CLASS A-3 CERTIFICATE FACTOR" means, with respect to any Monthly
Allocation Date, a seven-digit decimal figure equal to the Class A-3 Certificate
Balance as of the close of business on such Monthly Allocation Date (after
giving effect to all changes in the Class A-3 Certificate Balance made on that
date) divided by the Initial Class A-3 Certificate Balance.
"CLASS A-3 CERTIFICATEHOLDER" means any Holder of a Class A-3 Certificate.
"CLASS A-3 CERTIFICATE PRINCIPAL LOSS AMOUNT" means, with respect to any
Monthly Allocation Date, the amount, if any, by which (i)Loss Amounts allocable
to the Class A-3
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Certificates for the related Collection Period and any previously unreimbursed
Class A-3 Certificate Principal Loss Amount exceeds (ii) the amount available to
be distributed in respect of the Class A-3 Certificates pursuant to Section
3.01(b)(viii) of the 1997-A Securitization Trust Agreement on such Monthly
Allocation Date.
"CLASS A-3 INTEREST CARRYOVER SHORTFALL" means, with respect to any Monthly
Allocation Date, the excess, if any, of (i) the Class A-3 Interest Distributable
Amount for such Monthly Allocation Date plus any outstanding Class A-3 Interest
Carryover Shortfall from the immediately preceding Monthly Allocation Date plus
interest on such outstanding Class A-3 Interest Carryover Shortfall, to the
extent permitted by law, at the Class A-3 Rate from such immediately preceding
Monthly Allocation Date to but not including the current Monthly Allocation
Date, over (ii) the amount of interest (whether from Available Interest or
amounts applied pursuant to Section 3.01(e) of the 1997-A Securitization Trust
Agreement) allocated or distributed to Class A-3 Certificateholders on such
current Monthly Allocation Date.
"CLASS A-3 INTEREST DISTRIBUTABLE AMOUNT" means, with respect to any
Monthly Allocation Date, (a) the product of (i) one-twelfth of the Class A-3
Rate (or in the case of the first Monthly Allocation Date, of 0.27778% of the
Class A-3 Rate) and (ii) the Class A-3 Certificate Balance as of the immediately
preceding Monthly Allocation Date (after giving effect to changes in the Class
A-3 Certificate Balance made on such immediately preceding Monthly Allocation
Date) or, in the case of the first Monthly Allocation Date, the Initial Class
A-3 Certificate Balance, plus (b) interest accrued during such period at the
Class A-3 Rate on unreimbursed Class A-3 Certificate Principal Loss Amounts.
"CLASS A-3 PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any
Monthly Allocation Date related to a Collection Period commencing during the
Amortization Period, the amount (if any) that is distributable to the Class A-3
Certificateholders pursuant to Section 3.01(d) of the 1997-A Securitization
Trust Agreement.
"CLASS A-3 RATE" means 6.45% per annum.
"CLASS A-3 TARGETED MATURITY DATE" means March 26, 2001.
"CLASS B AVAILABLE PRINCIPAL" with respect to any Monthly Allocation Date
means the portion of Principal Collections derived by multiplying (i) a
fraction, the numerator of which is the Adjusted Class B Certificate Balance,
and the denominator of which is the Class B Adjusted Certificate Balance as of
such Monthly Allocation Date, by (ii) the Investor Percentage, and by (iii)
Principal Collections plus any Accelerated Principal Distribution Amount for
such Monthly Allocation Date.
"CLASS B CERTIFICATE" means any one of the Certificates executed and
authenticated by the 1997-A Securitization Trustee in substantially the form set
forth in the 1997-A Securitization Trust Agreement.
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"CLASS B CERTIFICATE BALANCE" means, initially, the Initial Class B
Certificate Balance and, on any date, shall equal the Initial Class B
Certificate Balance, reduced by the sum of (i) all amounts distributed to Class
B Certificateholders in respect of principal of the Class B Certificates on or
prior to such date, (ii) the amount of any unreimbursed Class B Certificate
Principal Loss Amounts, and (iii) the amount of any Class B Available Principal
applied to cover shortfalls and losses allocated to the Class A Certificates and
not reimbursed on or prior to such date.
"CLASS B CERTIFICATE FACTOR" means, with respect to any Monthly Allocation
Date, a seven-digit decimal figure equal to the Class B Certificate Balance as
of the close of business on such Monthly Allocation Date (after giving effect to
all changes in the Class B Certificate Balance made on that date) divided by the
Initial Class B Certificate Balance.
"CLASS B CERTIFICATE PRINCIPAL LOSS AMOUNT" means, with respect to any
Monthly Allocation Date, the amount, if any, by which (i)Loss Amounts allocable
to the Class B Certificates for the related Collection Period and any previously
unreimbursed Class B Certificate Principal Loss Amount exceeds (ii) the amount
available to be allocated or distributed in respect thereof pursuant to Section
3.01(b)(ix) of the 1997-A Securitization Trust Agreement on such Monthly
Allocation Date.
"CLASS B CERTIFICATEHOLDER" means any Holder of a Class B Certificate.
"CLASS B INTEREST CARRYOVER SHORTFALL" means, with respect to any Monthly
Allocation Date, the excess, if any, of (i) the Class B Interest Distributable
Amount for such Monthly Allocation Date plus any outstanding Class B Interest
Carryover Shortfall from the immediately preceding Monthly Allocation Date plus
interest on such outstanding Class B Interest Carryover Shortfall, to the extent
permitted by law, at the Class B Certificate Rate from such immediately
preceding Monthly Allocation Date to but not including the current Monthly
Allocation Date over (ii) the amount of interest (whether from Available
Interest or amounts applied pursuant to Section 3.01(e) of the 1997-A
Securitization Trust Agreement) allocated or distributed to Class B
Certificateholders on such current Monthly Allocation Date pursuant to Section
3.01(b)(ix) of the 1997-A Securitization Trust Agreement.
"CLASS B INTEREST DISTRIBUTABLE AMOUNT" means, with respect to any Monthly
Allocation Date, the product of (i) one-twelfth of the Class B Certificate Rate
(or in the case of the first Monthly Allocation Date, 0.27778% of the Class B
Certificate Rate) and (ii) the Class B Certificate Balance as of the immediately
preceding Monthly Allocation Date (after giving effect to changes in the Class B
Certificate Balance made on such immediately preceding Monthly Allocation Date)
or, in the case of the first Monthly Allocation Date, the Initial Class B
Certificate Balance.
"CLASS B INTEREST RESERVE AMOUNT" means with respect to any Monthly
Allocation Date, the lesser of (i) $1,246,218.75 less all amounts previously
withdrawn from the Reserve Fund in respect of the Class B Interest Reserve
Amount to make allocations or distributions in respect of interest accrued on
the Class B Certificates or Certificate Principal Loss Amounts allocated thereto
or (ii)
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1.6875% of the Class B Certificate Balance as of the date prior to such Monthly
Allocation Date; provided that the Class B Interest Reserve Amount will be zero
on and after any date on which any Rating Agency reduces its rating of the Class
A Certificates to less than "A" or its equivalent or withdraws its rating of any
Class of Class A Certificates (unless such rating is restored).
"CLASS B PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any Monthly
Allocation Date related to a Collection Period in the Amortization Period, the
amount (if any) that is distributable to the Class B Certificateholders pursuant
to Section 3.01(d) of the 1997-A Securitization Trust Agreement.
"CLASS B RATE" means 6.75% per annum.
"CLASS B TARGETED MATURITY DATE" means September 25, 2001.
"CLOSING DATE" means September 24, 1997.
"COLLECTION PERIOD" with respect to each Monthly Allocation Date, means the
preceding calendar month.
"COLLECTIONS" means with respect to any Collection Period, all net
collections received in respect of the 1997-A Contracts and 1997-A Leased
Vehicles during such Collection Period, including Monthly Payments (including
Payments Ahead that represent Monthly Payments due during such Collection
Period), Prepayments, Advances, Net Matured Leased Vehicle Proceeds, Net
Repossessed Vehicle Proceeds and other Net Liquidation Proceeds, less (i)
amounts representing Payments Ahead with respect to future Collection Periods
and (ii) Additional Loss Amounts in respect of such Collection Period.
"CORPORATE TRUST OFFICE" means the office of the Titling Trustee, the Trust
Agent or the 1997-A Securitization Trustee, as indicated by the context. As of
September 1, 1997, the Corporate Trust Office is located at 111 East Wacker
Drive, Suite 3000, Chicago, Illinois 60601, Attention: Toyota Lease Trust.
After September 1, 1997, the Corporate Trust Office for any of the Titling
Trustee, the Trust Agent and the Securitization Trustee or any successor thereto
may be changed by delivering a notice in writing of the new address of the
corporate office to the Servicer and the Beneficiaries.
"CURRENT LIABILITY" means, with respect to any Plan, the present value of
the accrued benefits under the Plan, as set forth in the most recent audited
consolidated financial statements of TMS and its subsidiaries.
"CUTOFF DATE" means August 1, 1997.
"DEFINITIVE CERTIFICATES" means, as of any date of determination, any
Certificates not then outstanding in book-entry form.
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"DELINQUENCY PERCENTAGE" means, with respect to a Collection Period, (a)
the number of all outstanding 1997-A Contracts 60 days or more delinquent (after
taking into account permitted deferrals) as of the last day of such Collection
Period, whether or not the related 1997-A Leased Vehicle has been repossessed
(or the process of repossession has been commenced) but has not yet been sold or
otherwise disposed of during such Collection Period or the related Obligor is
the subject of bankruptcy or similar proceedings, determined in accordance with
the Servicer's normal practices, plus (b) the number of repossessed 1997-A
Leased Vehicles that have not been liquidated (to the extent the related 1997-A
Contract is not otherwise reflected in clause (a) above), expressed as a
percentage of the aggregate number of 1997-A Contracts that are Current
Contracts on the last day of such Collection Period.
"DEPOSIT DATE" means the Business Day immediately preceding each Monthly
Allocation Date.
"DISCOUNTED CONTRACT" means a 1997-A Contract with a Lease Rate less than
9.75% per annum.
"DISCOUNTED PRINCIPAL BALANCE" means (i) with respect to any Discounted
Contract, an amount equal to the present value of the sum of all remaining
Monthly Payments on such 1997-A Contract paid on a timely basis, plus the Booked
Residual Value of the related Leased Vehicle, calculated by discounting such
Monthly Payments by the Discount Rate, and (ii) with respect to any other
Contract, its Outstanding Principal Balance at such time.
"DISCOUNT RATE" means 9.75% per annum.
"EARLY AMORTIZATION EVENT" means any of the following events:
(i) failure on the part of the Servicer (i) to make any payment or
deposit required with respect to the 1997-A SUBI or the Investor Certificates
under the 1997-A Securitization Trust Agreement, the Titling Trust Agreement or
the 1997-A Servicing Supplement, on or before the date occurring five Business
Days after the payment or deposit is required to be made, or (ii) to deliver a
Servicer's Certificate within ten Business Days after any Determination Date,
which failure continues for three business days from the Servicer's receipt of
notice thereof;
(ii) failure on the part of the Transferor or the Servicer duly to
observe or perform in any material respect any other covenants or agreements of
the Transferor or the Servicer set forth in the 1997-A Securitization Trust
Agreement, the Titling Trust Agreement or the 1997-A Servicing Supplement (other
than as described in clause (i) above), which failure materially and adversely
affects the rights of the holder of the 1997-A SUBI or of the Investor
Certificateholders and which continues unremedied and continues to affect
materially and aversely the rights of the holder of the 1997-A SUBI or of the
Investor Certificateholders for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied, if given (i)
to the Transferor or the Servicer, as the case may be, by the 1997-A
Securitization Trustee or the Titling Trustee, or (ii) to
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the Transferor or the Servicer, as the case may be, and to the 1997-A
Securitization Trustee by the Holders of Investor Certificates evidencing not
less than 25% of the Voting Interests of the Class A Certificates and the Class
B Certificates, voting together as a single Class;
(iii) any representation or warranty made by TMCC in the Titling Trust
Agreement or by the Transferor in the 1997-A Securitization Trust Agreement, or
the representation and warranty made by the Servicer in Section 2.01 of the
1997-A Servicing Supplement or any certificate given pursuant to Section 5.01 of
the 1997-A Servicing Supplement, shall prove to have been incorrect in any
material respect when made or given, as a result of which the interests of the
holder of the 1997-A SUBI or of the Investor Certificateholders are materially
and adversely affected and which continues to be incorrect in any material
respect and continues to materially and adversely affect the interests of the
holder of the 1997-A SUBI or of the Certificateholders for a period of 60 days
after the date on which written notice of such failure, requiring the same to be
remedied, is given (i) to TMCC, the Transferor or the Servicer, as the case may
be, by the Trustee or the Titling Trustee, or (ii) to TMCC, the Transferor or
the Servicer, as the case may be, and to the Trustee by the Holders of Investor
Certificates evidencing not less than 25% of the Voting Interests of the Class A
Certificates and the Class B Certificates, voting together as a single Class;
PROVIDED, HOWEVER, that an Early Amortization Event pursuant to this
subparagraph (iii) shall not be deemed to have occurred hereunder if the
Servicer has made the Reallocation Payment contemplated by Section 3.03 of the
1997-A Servicing Supplement and has reallocated the relevant 1997-A Contract and
1997-A Leased Vehicle to the UTI Portfolio within the time provided therefor;
(iv) any Insolvency Event relating to the Transferor;
(v) any Lien, other than Liens permitted under the 1997-A
Securitization Trust Agreement, the Titling Trust Agreement or the 1997-A
Servicing Supplement shall be created on or extend to or otherwise arise upon or
burden the 1997-A SUBI, the 1997-A SUBI Certificate, or the 1997-A Contracts
or the 1997-A Leased Vehicles, or any part thereof or any interest therein or
the proceeds thereof, and not be released within 60 days thereafter;
(vi) the Transferor, the 1997-A Securitization Trust or the Titling
Trust becomes subject to registration as an "investment company" for purposes of
the Investment Company Act of 1940, as amended;
(vii) the Servicer determines on the last day of any calendar month
(commencing in October 1997) that the amount of Principal Collections and
reimbursed Loss Amounts and Certificate Principal Loss Amounts for the preceding
calendar month that have not been reinvested in Subsequent Contracts and
Subsequent Leased Vehicles as of the first day of such month exceeds $1,000,000;
(viii) an Event of Servicing Termination or an Event of Default under the
Indenture (without giving consideration to any cure or grace periods) occurs; or
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(ix) if on any Monthly Allocation Date the aggregate amount withdrawn
from the Reserve Fund and deposited into the 1997-A SUBI Collection Account or
the 1997-A SUBI Certificateholders' Account on or prior to such Monthly
Allocation Date (without giving effect to any deposits into the Reserve Fund)
exceeds $3,078,079 (i.e., 0.25% of the Aggregate Net Investment Value as of the
Cutoff Date).
"ELIGIBLE CONTRACT" means a Contract as to which the criteria specified in
the definition of "Eligible Contract" set forth in the Annex of Definitions as
of the date of the 1997-A SUBI Supplement, and also satisfies the following
criteria as of such date:
(a) such Contract was originated in the United States, after
October 31, 1996 in the case of the Initial Contracts, and on or before
October 1, 1998 in the case of the Subsequent Contracts and has a Maturity
Date on or after January 1, 1998, and no later than July 31, 2002 in the
case of the Initial Contracts, and no later than October 1, 2003, in the
case of the Subsequent Contracts;
(b) such Contract was not more than 60 days past due as of the
Cutoff Date or the related Transfer Date, as the case may be, and has not
been deferred more than 4 times or extended by more than 12 months in the
aggregate or otherwise modified except in accordance with the Servicer's
normal credit and collection policies and practices;
(c) such Contract is not an asset of any SUBI other than the
1997-A SUBI; and
(d) such Contract is a closed-end lease contract having an
original scheduled maturity of not more than 60 months, will have been
written for a "capitalized cost" (which may exceed the manufacturer's
suggested retail price), plus a lease charge which is based on the Lease
Rate and will provide for equal monthly payments required to be made by the
Obligor thereunder within 30 days after the billing date for such payment
that, when allocated between principal and the lease charge at the Lease
Rate on a constant yield basis, will be sufficient to amortize the
capitalized cost over the term of the Contract to an amount equal to the
Booked Residual Value; provided that such Contract will allow the related
Obligor voluntarily to terminate such Contract by paying the related Payoff
Amount.
"EVENT OF SERVICING TERMINATION" means any of the following events:
(i) failure by the Servicer to deliver to the Titling Trustee for
distribution to holders of interests in the 1997-A SUBI or to the 1997-A
Securitization Trustee for distribution to the Holders of any required payment
on the Investor Certificates as to allocations and distributions, which failure
continues unremedied for three Business Days after discovery of such failure by
an officer of the Servicer or receipt by the Servicer of notice thereof from the
1997-A Securitization Trustee, the Titling Trustee or Holders of Certificates
evidencing not less than 25% of the Voting Interests of the Class A Certificates
and the Class B Certificates, voting together as a single class, or failure, for
any
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reason, of the 1997-A Securitization Trust to pay in full any Class of
Certificates on the Stated Maturity Date;
(ii) failure by the Servicer to deliver to the Titling Trustee or the
1997-A Securitization Trustee any report relating to the 1997-A SUBI Sub-Trust
and required to be delivered to it pursuant to the 1997-A Servicing Supplement
within ten Business Days after discovery or written notice thereof as described
in clause (i) above;
(iii) failure by the Servicer duly to observe or perform in any material
respect any other of its covenants or agreements in the Titling Trust Agreement
or 1997-A Servicing Supplement which failure materially and adversely affects
the rights of holders of interests in the SUBI or the Certificateholders and
which continues unremedied for 90 days after discovery or written notice thereof
as described in clause (i) above;
(iv) the occurrence of an Insolvency Event with respect to the Servicer;
(v) any representation, warranty or statement of the Servicer made in
the 1997-A Servicing Supplement or any certificate, report or other writing
delivered pursuant thereto or to any related Transaction Document shall prove to
be incorrect in any material respect as of the time when the same shall have
been made and such circumstance or condition in respect of which such
representation, warranty or statement was incorrect shall not have been
eliminated or otherwise cured within 30 days after discovery or written notice
thereof as described in clause (i) above as a result of which the interests of
the holder of the 1997-A SUBI or of the Investor Certificateholders are
materially and adversely affected and which continues to be incorrect in any
material respect and continues to materially and adversely affect the interests
of the holder of the 1997-A SUBI or of the Certificateholders for a period of
60 days after the date on which written notice of such failure, requiring the
same to be remedied, is given (i) to TMCC, the Transferor or the Servicer, as
the case may be, by the Trustee or the Titling Trustee, or (ii) to TMCC, the
Transferor or the Servicer, as the case may be, and to the Trustee by the
Holders of Investor Certificates evidencing not less than 25% of the Voting
Interests of the Class A Certificates and the Class B Certificates, voting
together as a single Class;
(vi) the Servicer shall have failed to make an Advance (other than any
Nonrecoverable Advance) at the time and in the amount required by Section 4.05
of the 1997-A Servicing Supplement, which failure continues for five Business
Days after discovery of such failure by an officer of the Servicer or within
three Business Days after discovery or written notice thereof as described in
clause (i) above; or
(vii) the Servicer shall have failed to perform its obligations under the
1997-A Servicing Supplement with respect to maintenance of the Contingent and
Excess Liability Insurance Policies.
Notwithstanding the foregoing, a delay or failure in the performance
referred to under clause (i) or (vi) above for a period of ten Business Days,
or referred to in clause (ii) above for a period of
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20 Business Days, or referred to in clause (v) for a period of 90 days, or
referred to in clause (vii) for a period of 60 days, shall NOT constitute an
Event of Servicing Termination if such delay or failure in performance arises
from an event or circumstance of force majeure.
"EXCESS AMOUNTS" means, with respect to any Monthly Allocation Date, the
amount specified in Section 3.01(b)(xiv) of the 1997-A Securitization Trust
Agreement.
"FIRST PRINCIPAL MONTHLY ALLOCATION DATE" means the Monthly Allocation Date
in the month commencing after the earlier to occur of the Amortization Date or
an Early Amortization Event.
"HOLDER" See definition of Certificateholder.
"INDENTURE" means that certain Indenture dated as of September 1, 1997
between TMCC and U.S. Bank, as trustee.
"INDENTURE TRUSTEE" means U.S. Bank National Association in such capacity
under the Indenture, or any successor trustee appointed as such pursuant to the
Indenture.
"INITIAL CERTIFICATE BALANCE" means the sum of the Initial Class A
Certificate Balance and the Initial Class B Certificate Balance.
"INITIAL CLASS A CERTIFICATE BALANCE" means the sum of the Initial Class
A-1 Certificate Balance, the Initial Class A-2 Certificate Balance and the
Initial Class A-3 Certificate Balance.
"INITIAL CLASS A-1 CERTIFICATE BALANCE" means $410,000,000.
"INITIAL CLASS A-2 CERTIFICATE BALANCE" means $650,000,000.
"INITIAL CLASS A-3 CERTIFICATE BALANCE" means $72,750,000.
"INITIAL CLASS B CERTIFICATE BALANCE" means $73,850,000.
"INITIAL CONTRACTS" means the 1997-A Contracts listed on the Schedule of
Contracts and Leased Vehicles delivered on the Closing Date.
"INTEREST COLLECTIONS" with respect to any Collection Period, means an
amount equal to the amount by which Collections exceed Principal Collections
with respect to such Collection Period.
"INTEREST PERIOD" means, with respect to each related Certificate Payment
Date for a Class of Certificates, the period from and including the twenty-fifth
day of the month of the preceding Certificate Payment Date, to but excluding the
twenty-fifth date of the month of such current Certificate Payment Date.
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"INVESTOR CERTIFICATEHOLDER" means any Class A or Class B
Certificateholder.
"INVESTOR CERTIFICATES" means the Class A Certificates and the Class B
Certificates.
"INVESTOR PERCENTAGE" means, with respect to any Collection Period,
(a) as used with respect to Interest Collections and Loss Amounts
allocable to the 1997-A SUBI, the percentage equivalent of a fraction (not to
exceed 100%), the numerator of which is the Adjusted Certificate Balance as of
the last day of the immediately preceding Collection Period (or, in the case of
the first Collection Period, the Initial Certificate Balance), and the
denominator of which is the Aggregate Net Investment Value as of the last day of
the immediately preceding Collection Period (or, in the case of the first
Collection Period, the Cutoff Date); and
(b) as used with respect to Principal Collections allocable to the
1997-A SUBI, the percentage equivalent of a fraction (not to exceed 100%), the
numerator of which is the Adjusted Certificate Balance and the denominator of
which is the Aggregate Net Investment Value, calculated as of the last day of
the Collection Period (i) preceding the Amortization Date (if no Early
Amortization Event occurs prior to such date) or (ii) preceding the month, if
any, during which an Early Amortization Event occurs.
"LIQUIDATED CONTRACT" means a 1997-A Contract that (a) has been the subject
of a Prepayment in full, or otherwise has been paid in full, regardless of
whether all or any part of such payment has been made by the Obligor under the
related 1997-A Lease, the Servicer pursuant to the 1997-A Servicing Supplement,
an insurer pursuant to an Insurance Policy or (b) in the case of a 1997-A
Contract that is a Charged-off Contract, as to which the Servicer has determined
that the final amounts in respect thereof have been realized.
"LIQUIDATION EXPENSES" means, with respect to any Collection Period,
reasonable out-of-pocket expenses incurred by the Servicer in connection with
the realization of the full amounts due or to become due under any 1997-A
Contract, including Repossessed Vehicle Expenses, Matured Leased Expenses and
other expenses incurred in connection with the sale or other disposition of a
1997-A Leased Vehicle, whether upon repossession or upon return of a 1997-A
Leased Vehicle related to a Matured Contract, any collection effort (whether or
not resulting in a lawsuit against the Obligor under such 1997-A Contract) or
any application for Insurance Proceeds.
"LIQUIDATION PROCEEDS" with respect to any Collection Period, means the sum
of all amounts received during such Collection Period in connection with the
realization of the amounts due under any 1997-A Contract in connection with the
final liquidation or other final disposition of such 1997-A Contract, plus all
Matured Leased Vehicle Proceeds and Repossessed Vehicle Proceeds received by the
Servicer during such Collection Period.
"LISTING AGREEMENT" means the Listing Agreement dated September 22, 1997
between Toyota Leasing, Inc. and The Stock Exchange of Hong Kong Limited.
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"LOSS AMOUNT" means, with respect to any Monthly Allocation Date, an
amount equal to the sum of the Charged-off Amount, the Residual Value Loss
Amount and the Additional Loss Amount, in each case for the related Collection
Period.
"MATURED CONTRACT" means any 1997-A Contract that has reached its scheduled
maturity, as such scheduled maturity may have been modified in connection with
any deferral or extension of such Contract and been terminated.
"MATURED LEASED VEHICLE EXPENSES " means, with respect to any Collection
Period, all reasonable out-of-pocket expenses incurred by the Servicer during
such Collection Period in connection with the realization of Matured Leased
Vehicle Proceeds, including any unpaid payments of taxes, vehicle registration
charges, clearance of parking tickets and similar items and expenses and charges
payable by the Obligors or paid by the Servicer on behalf of Obligors and any
unpaid Monthly Payments.
"MATURED LEASED VEHICLE INVENTORY" means, with respect to any date, each
1997-A Leased Vehicle that is the subject of a 1997-A Contract that became a
Matured Contract within the three immediately preceding Collection Periods, but
which remains unsold and not otherwise disposed of by the Servicer for no more
than three full Collection Periods as of the last day of the most recent
Collection Period.
"MATURED LEASED VEHICLE PROCEEDS" means, with respect to any Collection
Period, all proceeds received by the Servicer during such Collection Period from
the sale or other disposition of 1997-A Leased Vehicles that are the subject of
Matured Contracts, including payments for excess mileage and excess wear and
tear.
"MATURITY ADVANCE" means any advance made by the Transferor on any Targeted
Maturity Date with respect to principal distributable on the related Class of
Investor Certificates if on such date the aggregate of other amounts available
in the 1997-A SUBI Certificateholders' Account and the 1997-A SUBI Collection
Account to be paid as principal thereof pursuant to Section 3.01 of the 1997-A
Securitization Trust Agreement are insufficient to reduce the related Class
Certificate Balance to zero and reimburse all related Certificate Principal
Loss Amounts (and, in the case of the Class B Certificates, applied Class B
Available Principal).
"MONTHLY ALLOCATION DATE" means the day on which Collections in respect of
the 1997-A Contracts and 1997-A Leased Vehicles are allocated, and shall occur
on the twenty-fifth day of each month (or, if such day is not a Business Day, on
the next succeeding Business Day) commencing on October 25, 1997, and generally
is used with the meaning ascribed to Distribution Date in the Annex of
Definitions attached to the Titling Trust Agreement.
"MONTHLY PAYMENT EVENT" means (a) the occurrence of any of the Early
Amortization Events described in clauses (ii) through (vi) and (viii) of the
definition thereof or (b) the downgrade by Standard & Poor's of TMCC's
short-term debt to a rating less than A-1+, or the downgrade by
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Moody's of TMCC's short term debt to a rating less than P-1 or TMCC's long term
debt to a rating less than Aa3, unless within ten Business Days of such event
alternative arrangements are made with respect to the investment of Collections
to be invested, and such alternative arrangements will not result in a
downgrade, modification or qualification of the then current rating of the Rated
Certificates as evidenced by a letter from each of the Rating Agencies.
"MONTHLY PAYMENT EVENT OCCURRENCE" means (a) the occurrence of any of the
Early Amortization Events described in clauses (ii) through (vi) and (viii) of
the definition thereof or (b) the downgrade by Standard & Poor's of TMCC's
short-term debt to a rating less than A-1+, or the downgrade by Moody's of
TMCC's short term debt to a rating less than P-1 or TMCC's long term debt to a
rating less than Aa3.
"NET INSURANCE PROCEEDS" means, with respect to any Collection Period,
recoveries pursuant to each Insurance Policy (excluding all proceeds of the
Residual Value Insurance Policy) obtained and maintained by an Obligor pursuant
to a 1997-A Contract (or payment by TMCC of the deductibles as to which it has
indemnified the Securitization Trust), or by the Titling Trust or the Servicer
with respect to such 1997-A Contract or the related 1997-A Leased Vehicle, in
each case net of certain sums applied to the repair of the related Leased
Vehicles.
"NET LIQUIDATION PROCEEDS" means, with respect to any Collection period,
all Liquidation Proceeds net of all Liquidation Expenses for such Collection
Period.
"NET MATURED LEASED VEHICLE PROCEEDS" means, with respect to any Collection
Period, all Matured Leased Vehicle Proceeds net of all Matured Leased Vehicle
Expenses.
"NET REPOSSESSED VEHICLE PROCEEDS" means, with respect to any Collection
Period, the aggregate Repossessed Vehicle Proceeds net of the aggregate
Repossessed Vehicle Expenses for such Collection Period.
"NONRECOVERABLE ADVANCE" means any Advance that, in the Servicer's
reasonable judgment, may not be ultimately recoverable by the Servicer from
Matured Leased Vehicle Proceeds, Repossessed Vehicle Proceeds or other
Liquidation Proceeds or Insurance Proceeds (excluding proceeds of any Residual
Value Insurance Policy) or otherwise.
"OTHER SUBI" means any SUBI other than the 1997-A SUBI.
"OTHER SUBI ASSETS" means the SUBI Assets with respect to any SUBI other
than the 1997-A SUBI.
"OTHER SUBI CERTIFICATE" means any SUBI Certificate other than the 1997-A
SUBI Certificate.
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"OUTSTANDING ADVANCES" means, with respect to a 1997-A Contract and the
last day of a Collection Period, the sum of all Advances made with respect
thereto on or prior to such date, minus any portion of subsequent Collections
applied to reimburse such Advances.
"PAYOFF AMOUNT" means the amount owed by the related Obligor under any
1997-A Contract upon termination at or before maturity where such Obligor is not
in default and does not exercise its option to purchase the related 1997-A
Leased Vehicle, determined by (i) adding all unpaid Monthly Payments and any
incidental charges owing under such 1997-A Contract to the Booked Residual
Value, less unearned lease charges, (ii) subtracting the actual wholesale price
or the wholesale price otherwise determined by TMCC in a commercially reasonable
manner or by third party appraisal (if elected by the Obligor), and (iii)
applying the Security Deposit, if any, to reduce any deficiency.
"PERCENTAGE INTEREST" means, as to any Investor Certificate, the percentage
obtained by dividing the outstanding principal balance of such Investor
Certificate by the Class Certificate Balance of the related Class; PROVIDED,
HOWEVER, that where the Percentage Interest is relevant in determining whether
the vote of the requisite percentage of Investor Certificateholders necessary to
effect any consent, waiver, request or demand shall have been obtained, the
aggregate Percentage Interest shall be deemed to be reduced by the amount equal
to the Percentage Interest (without giving effect to this provision) represented
by the interests evidenced by any such Investor Certificate that is registered
in the name of the Transferor, TMCC or any Person controlling, controlled by or
under common control with the Transferor or TMCC.
"PRINCIPAL COLLECTIONS" means, with respect to any Collection Period, all
Collections allocable to the principal component of any 1997-A Contract.
"REALLOCATION DEPOSIT AMOUNT" means the amount required to be deposited by
the Servicer into the 1997-A SUBI Collection Account pursuant to Section 3.03 of
the 1997-A Servicing Supplement in connection with any 1997-A Contract as to
which a breach of a representation, warranty or covenant that materially and
adversely affects the owners of interests in the 1997-A SUBI or the
Certificateholders is not cured in all material respects within 60 days after
the Servicer discovers such breach or is given notice thereof, equal to the
amount by which the Transferor Interest would be reduced to less than zero in
connection with the reallocation of the related 1997-A SUBI Contract as a UTI
Asset.
"REALLOCATION PAYMENT" means the amount required to be deposited by the
Servicer into the 1997-A SUBI Collection Account in connection with any 1997-A
Contract as to which a breach of a representation, warranty or covenant that
materially and adversely affects the owners of interests in the 1997-A SUBI or
the Certificateholders is not cured in all material respects within 60 days
after the Servicer discovers such breach or is given notice thereof, which
amount will equal the Discounted Principal Balance of such Contract as of the
last day of the Collection Period during which the related cure period ended
plus an amount equal to any imputed lease charge on such Contract at the related
Lease Rate that was delinquent as of the end of such Collection Period.
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"RECORD DATE" means, with respect to each Distribution Date, (i) in the
case of the Class A Certificates, the calendar day immediately preceding such
Distribution Date (or, if Definitive Certificates have been issued, the last day
of the immediately preceding calendar month) and (ii) in the case of the Class B
Certificates, the last day of the calendar month immediately preceding the month
in which such Distribution Date occurs.
"REPOSSESSED VEHICLE EXPENSES" means, with respect to any Collection
Period, all reasonable out-of-pocket expenses incurred by the Servicer during
such Collection Period in connection with the repossession of 1997-A Leased
Vehicles, including any unpaid payments of taxes, vehicle registration charges,
clearance of parking tickets and similar items and expenses and charges payable
by the Obligors or paid by the Servicer on behalf of Obligors and any unpaid
Monthly Payments.
"REPOSSESSED VEHICLE PROCEEDS" with respect to any Collection Period, means
proceeds received in connection with the sale or other disposition of 1997-A
Leased Vehicles, if any, that have been repossessed during such Collection
Period or any prior Collection period.
"REQUESTED EXEMPTION" means the exemption from certain prohibited
transaction rules of ERISA with respect to the initial purchase, holding and
subsequent resale of Class A Certificates by certain investors subject to ERISA
applied for by TMCC on behalf of itself and certain of its Affiliates (including
the Transferor).
"REQUIRED AMOUNT" means, as of any Deposit Date, the excess of (i) the sum
of any anticipated amounts to be payable as set forth in Section 3.01(b) clauses
(ii), (iii), (viii) and (ix) of the 1997-A Securitization Trust Agreement with
respect to the related Monthly Allocation Date, over (ii) the amount of
Available Interest allocable or distributable in respect thereof on the related
Monthly Allocation Date and, on the Stated Maturity Date, the amount remaining
on deposit in the Reserve Fund to the extent necessary to pay in full each Class
of Certificates then outstanding (including reimbursements of Loss Amounts,
Certificate Principal Loss Amounts and Class B Available Principal, as described
in Section 3.01 of the 1997-A Securitization Trust Agreement).
"REQUIRED RATE" with respect to any Permitted Investment in which amounts
deposited in the 1997-A SUBI Certificateholders' Account in respect of principal
ultimately distributable to Holders of Certificates of any Class means the
Certificate Rate with respect to such Class, and with respect to any Permitted
Investment in which amounts deposited in the 1997-A SUBI Certificateholders'
Account in respect of interest payable on the Certificates, means the one-month
commercial paper rate, which will reset monthly.
"RESERVE FUND" means the account designated as such and established and
maintained pursuant to Section 3.02(b) of the 1997-A Securitization Trust
Agreement.
"RESERVE FUND INITIAL DEPOSIT" means the amount to be deposited in the
Reserve Fund by the Transferor on the Closing Date equal to $30,780,787.98
(2.50% of the Aggregate Net Investment Value as of the Cutoff Date).
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"RESERVE FUND WITHDRAWAL AMOUNT" means, with respect to a Monthly
Allocation Date, the lesser of (a) the Required Amount for such Monthly
Allocation Date and (b) the amount on deposit in the Reserve Fund.
"RESIDUAL CERTIFICATE" means any Book-Entry Certificate issued on the
Closing Date pursuant to Section 4.01 of the 1997-A Securitization Trust
Agreement to represent a Certificate having a principal amount less than $1,000.
"RESIDUAL VALUE LOSS AMOUNT" means, as of any Monthly Allocation Date, the
sum of (a) the aggregate of the Booked Residual Values of all 1997-A Leased
Vehicles that were included in Matured Leased Vehicle Inventory but that had
remained unsold and not otherwise disposed of by the Servicer for at least three
full Collection Periods as of the last day of such Collection Period and (b) the
excess, if any, of (i) the aggregate of the Booked Residual Values of all 1997-A
Leased Vehicles previously included in Matured Leased Vehicle Inventory that
were sold or otherwise disposed of during such Collection Period over (ii) Net
Matured Vehicle Proceeds for such Collection Period.
"RESIDUAL VALUE SURPLUS" means, with respect to any Collection Period, the
excess, if any, of the aggregate of Matured Leased Vehicle Proceeds with respect
to 1997-A Leased Vehicles net of related Matured Leased Vehicle Expenses
incurred with respect to 1997-A Leased Vehicles during such Collection Period
over the aggregate of the Booked Residual Values of such 1997-A Leased Vehicles.
"RESIDUAL VALUE TEST" will not be satisfied as of any Determination Date if
(i) with respect to the related Collection Period the number of 1997-A Leased
Vehicles returned to the Servicer during such period relating to 1997-A
Contracts that became Matured Contracts during such period is greater than 25%
of all 1997-A Contracts that, as of their respective origination dates, had been
scheduled to become Matured Contracts during such period (provided that at least
500 such 1997-A Contracts had been scheduled to become Matured Contracts during
such Collection Period), and (ii) the average Net Matured Leased Vehicle
Proceeds during the three immediately preceding calendar months (or the months
of August and September 1997 in the case of the October 1997 Determination Date)
is less than 75% of the average Booked Residual Values of 1997-A Leased Vehicles
disposed of or liquidated during such period.
"REVOLVING PERIOD" means the period from the Closing Date through the
Business Day preceding the earlier of October 1, 1998 or the date of an Early
Amortization Event.
"SCHEDULE OF CONTRACTS AND LEASED VEHICLES" means the list of 1997-A
Contracts and 1997-A Leased Vehicles, on computer diskette, microfiche,
microfilm or hard paper copy, that are included as Titling Trust Assets in the
Titling Trust, as such list may be revised and supplemented from time to time
(which Schedules may be prepared on either a cumulative or additive basis)
pursuant to Section 5.01 of the 1997-A Servicing Supplement, and which shall set
forth the following information with respect to each such Contract in separate
columns:
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Contract Number
Date of Origination
Maturity Date
Monthly Payment
Original Principal Balance
Outstanding Principal Balance as of the last day of the
immediately preceding calendar month
Booked Residual Value
Security Deposit
Sub-Trust to which Contract is assigned
Vehicle Identification Number
Model Year
Make
Model
"SECURITY DEPOSIT" means any Security Deposit (as defined in the Annex of
Definitions attached to the Titling Trust Agreement) under any 1997-A Contract.
"SECURITIZATION TRUST DOCUMENTS" means each of the Transaction Documents
relating to the Securitized Financing contemplated by the 1997-A SUBI Supplement
and the 1997-A Securitization Trust Agreement.
"SERVICER" means TMCC, in its capacity as servicer under the Titling Trust
Agreement and the 1997-A Servicing Supplement, or any successor to TMCC in such
capacities.
"SERVICING RATE PORTION" means, with respect to any Monthly Allocation
Date, one-twelfth of 1.00% of the Aggregate Net Investment Value as of the first
day of the related Collection Period.
"SPECIFIED RESERVE FUND BALANCE" means, with respect to any Monthly
Allocation Date, $30,780,787.98 (2.5% of the Aggregate Net Investment Value as
of the Cutoff Date), except that, if on any Monthly Allocation Date (i) the
average of the Charge-off Rates for the three preceding Collection Periods
exceeds 1.25%, (ii) the average of the Delinquency Percentages for the three
preceding Collection Periods exceeds 1.25%, or (iii) the Residual Value Test is
not satisfied as of the related Determination Date, then the Specified Reserve
Fund Balance will equal $61,561,575.96 (5.0% of the Aggregate Net Investment
Value as of the Cutoff Date); provided, however, that the Specified Reserve Fund
Balance shall in no event be more than the sum of the outstanding principal
amounts of each Class of Investor Certificates.
"STATED MATURITY DATE" means April 26, 2004 with respect to each Class of
Certificates.
"SUBSEQUENT CONTRACTS" means those additional retail closed-end lease
contracts in which, during the Revolving Period, payments made on or in respect
of the 1997-A SUBI Assets allocable
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to principal and certain reimbursed Loss Amounts will be reinvested pursuant to
Section 3.02 of the 1997-A Servicing Supplement.
"SUBSEQUENT LEASED VEHICLES" means the automobiles and light duty trucks
relating to the Subsequent Contracts.
"TARGETED MATURITY DATE" means September 27, 1999 with respect to the Class
A-1 Certificates, September 25, 2000 with respect to the Class A-2 Certificates,
March 26, 2001 with respect to the Class A-3 Certificates and September 25, 2001
with respect to the Class B Certificates.
"TMCC DEMAND NOTES" means the unsecured debt obligations of TMCC issued
from time to time as a Permitted Investment pursuant to the terms of the
Indenture.
"TMCC INTEREST DEMAND NOTES" means the TMCC Demand Notes in which amounts
in the 1997-A SUBI Certificateholders' Account in respect of interest on the
1997-A SUBI Assets is invested; each TMCC Interest Demand Note shall mature on
the Business Day preceding the Certificate Payment Date next succeeding the date
of issuance of such TMCC Interest Demand Note.
"TMCC PRINCIPAL DEMAND NOTES" means the TMCC Demand Notes in which amounts
in the 1997-A SUBI Certificateholders' Account in respect of principal on the
1997-A SUBI Assets is invested; each TMCC Principal Demand Note shall mature on
the Business Day preceding the Targeted Maturity Date with respect to the Class
as to which such principal is allocable.
"TRANSFER DATE" means any of the one or more Business Days during the
Revolving Period selected by the Servicer each month on which the Servicer will
direct the Titling Trustee to reinvest Principal Collections and certain
reimbursed Loss Amounts in Subsequent Contracts and Subsequent Leased Vehicles.
"TRANSFEROR" means TLI, in its capacity as transferor under the 1997-A
Securitization Trust Agreement, and each successor thereto in the same capacity
pursuant to the 1997-A Securitization Trust Agreement.
"TRANSFEROR AMOUNTS" means, with respect to any Monthly Allocation Date,
amounts available for distribution to the Transferor in respect of the
Transferor Distributable Amount for such Monthly Allocation Date that are
instead distributed pursuant to Section 3.01(e) of the 1997-A Securitization
Trust Agreement because of an insufficiency in the amount of Available Interest
and the Reserve Fund Withdrawal Amount available to make such distributions on
such Monthly Allocation Date (as determined pursuant to Section 3.01(e) of the
1997-A Securitization Trust Agreement).
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"TRANSFEROR CERTIFICATE" means the Certificate executed and authenticated
by the 1997-A Securitization Trustee in substantially the form set forth in the
1997-A Securitization Trust Agreement.
"TRANSFEROR DISTRIBUTABLE AMOUNT" means, with respect to any Monthly
Allocation Date, the sum of the Transferor Principal Distributable Amount and
the Transferor Interest Distributable Amount.
"TRANSFEROR INTEREST" means, as of any date, an amount equal to (i) the
Aggregate Net Investment Value less (ii) the Certificate Balance.
"TRANSFEROR INTEREST DISTRIBUTABLE AMOUNT" means, with respect to any
Monthly Allocation Date, the amount equal to the Transferor Percentage (with
respect to Interest Collections) of all Interest Collections collected during or
received in respect of the related Collection Period allocable to the 1997-A
SUBI, less the Transferor Percentage of Capped Securitization Trust
Administrative Expenses, Uncapped Securitization Trust Administrative Expenses,
Capped Titling Trust Administrative Expenses, Uncapped Titling Trust
Administrative Expenses and Capped Contingent and Excess Liability Premiums.
"TRANSFEROR PERCENTAGE" means, with respect to Interest Collections and
Principal Collections allocable to the 1997-A SUBI, respectively, received in or
with respect to any Collection Period, 100% minus the Investor Percentage as
applied for such Collection Period with respect to such items, respectively.
"TRANSFEROR PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any
Monthly Allocation Date related to a Collection Period in the Amortization
Period, the amount equal to the Transferor Percentage (with respect to Principal
Collections) of all Principal Collections collected during or received in
respect of the related Collection Period allocable to the 1997-A SUBI.
"UNALLOCATED PRINCIPAL COLLECTIONS" means, with respect to any Monthly
Allocation Date, the amount of any Principal Collections that normally would be,
but are not, distributed to the Transferor on such Monthly Allocation Date
pursuant to the 1997-A Securitization Trust Agreement because the Transferor
Interest is less than or equal to zero. Such amounts will be retained in the
1997-A SUBI Collection Account until (a) applied to cover interest shortfalls,
Loss Amounts or Certificate Principal Loss Amounts allocable to the
Certificates, (b) the Certificates are paid in full (in which case such amounts
will be released to the Transferor or (c) the Transferor Interest again exceeds
zero (in which case such amounts will again be releasable as Transferor
Amounts).
"UNCAPPED SECURITIZATION TRUST ADMINISTRATIVE EXPENSES" with respect to any
Monthly Allocation Date will equal-one twelfth of the aggregate amounts
sufficient to pay the 1997-A Securitization Trustee's compensation and other
Administrative Expenses with respect to the 1997-A Securitization Trust payable
or reimbursable thereto on such Monthly Allocation Date under the 1997-A
Securitization Trust Agreement, including those due under Section 6.05 of the
1997-A
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Securitization Trust Agreement, not subject to the limitations set forth in the
definition of Capped Securitization Trust Administrative Expenses.
"UNCAPPED TITLING TRUST ADMINISTRATIVE EXPENSES" with respect to any
Monthly Allocation Date will equal-one twelfth of the aggregate amounts
sufficient to pay the Titling Trustee's compensation and other Administrative
Expenses with respect to the Titling Trust allocable to the 1997-A SUBI and
payable or reimbursable thereto on such Monthly Allocation Date under the 1997-A
Securitization Trust Agreement, including those due under Section 6.13 of the
Titling Trust Agreement not subject to the limitations set forth in the
definition of Capped Titling Trust Administrative Expenses.
"UNINVESTED PRINCIPAL COLLECTIONS" means, as of the end of the Revolving
Period, any Principal Collections with respect to the Revolving Period (or
amounts treated as Principal Collections pursuant to Section 3.01(b) of the
1997-A Securitization Trust Agreement) then on deposit in the 1997-A SUBI
Collection Account that have not been reinvested in Subsequent Contracts and
Subsequent Leased Vehicles as contemplated by Section 3.02 of the 1997-A
Servicing Supplement.
"U.S. BANK" means U.S. Bank National Association, formerly known as First
Bank National Association.
"VOTING INTEREST" means, as to an Investor Certificate of any Class, the
percentage obtained by dividing the portion of the related Class Certificate
Balance allocable to such Investor Certificate by the Certificate Balance (or by
the Class A Certificate Balance, the Class A-1 Certificate Balance, the Class
A-2 Certificate Balance, the Class A-3 Certificate Balance or the Class B
Certificate Balance, as the context may require); provided, however, that where
the Voting Interest is relevant in determining whether the vote of the requisite
percentage of Investor Certificateholders necessary to effect any consent,
waiver, request or demand shall have been obtained, the aggregate Voting
Interest shall be deemed to be reduced by the amount equal to the Voting
Interest (without giving effect to this provision) represented by the interests
evidenced by any such Investor Certificate that is registered in the name of
TLI, TMCC or any Person controlling, controlled by or under common control with
TLI or TMCC.
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EXECUTION COPY
- --------------------------------------------------------------------------------
1997-A SUBI SERVICING SUPPLEMENT
to
AMENDED AND RESTATED TRUST AND SERVICING AGREEMENT
Dated as of October 1, 1996
Among
TMTT, INC.,
as Titling Trustee,
TOYOTA MOTOR CREDIT CORPORATION,
as Servicer,
and
U.S. BANK NATIONAL ASSOCIATION,
as Trust Agent
Dated as of September 1, 1997
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE TWO
REPRESENTATIONS AND WARRANTIES OF SERVICER
SECTION 2.01 Representations and Warranties of Servicer.. . . . . . . . . . 2
ARTICLE THREE
CREATION OF 1997-A SUBI
SECTION 3.01. Initial Creation of 1997-A SUBI Portfolio and
1997-A SUBI Sub-Trust. . . . . . . . . . . . . . . . . . . . . 4
SECTION 3.02. Subsequent Additions to 1997-A SUBI Portfolio and
1997-A SUBI Sub-Trust. . . . . . . . . . . . . . . . . . . . . 4
SECTION 3.03. Servicer Payment in Respect of Certain Contracts And
Leased Vehicles. . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.04. Filings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE FOUR
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING OF CONTRACTS
IN 1997-A SUBI PORTFOLIO
SECTION 4.01. Servicer Bound by Titling Trust Agreement . . . . . . . . . . 7
SECTION 4.02. Collection of Monthly Payments and Remittances;
Application of Proceeds; Accounts. . . . . . . . . . . . . . 8
SECTION 4.03. Records . . . . . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 4.04. Collection and Application of Security Deposits . . . . . . .13
SECTION 4.05. Advances. . . . . . . . . . . . . . . . . . . . . . . . . . .13
SECTION 4.06. Payment of Certain Fees And Expenses; No Offset . . . . . . .14
SECTION 4.07. Servicing Compensation. . . . . . . . . . . . . . . . . . . .14
SECTION 4.08. Repossession And Sale of Leased Vehicles. . . . . . . . . . .15
SECTION 4.09. Servicer to Act on Behalf of Titling Trust. . . . . . . . . .17
SECTION 4.10. Indemnification by Servicer . . . . . . . . . . . . . . . . .18
SECTION 4.11. Third Party Claims. . . . . . . . . . . . . . . . . . . . . .18
SECTION 4.12. Insurance Policies. . . . . . . . . . . . . . . . . . . . . .19
SECTION 4.13. Servicer Not to Resign; Assignment. . . . . . . . . . . . . .19
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SECTION 4.14. Obligor Insurance Coverage in Respect of Leased Vehicles. . .20
SECTION 4.15. Corporate Existence; Status; Merger . . . . . . . . . . . . .21
ARTICLE FIVE
STATEMENTS AND REPORTS
SECTION 5.01. Reporting by the Servicer . . . . . . . . . . . . . . . . . .21
SECTION 5.02. Annual Accountants' Reports . . . . . . . . . . . . . . . . .22
SECTION 5.03. Other Certificates And Notices From Servicer. . . . . . . . .23
SECTION 5.04. Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . .23
ARTICLE SIX
DEFAULT
SECTION 6.01. Events of Servicing Termination; Termination of
Servicer as to 1997-A SUBI Portfolio . . . . . . . . . . . .23
SECTION 6.02. No Effect on Other Parties. . . . . . . . . . . . . . . . . .25
ARTICLE SEVEN
MISCELLANEOUS
SECTION 7.01. Termination of Agreement. . . . . . . . . . . . . . . . . . .25
SECTION 7.02. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . .25
SECTION 7.03. Governing Law.. . . . . . . . . . . . . . . . . . . . . . . .26
SECTION 7.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . .26
SECTION 7.05. Severability. . . . . . . . . . . . . . . . . . . . . . . . .26
SECTION 7.06. Inspection and Audit Rights . . . . . . . . . . . . . . . . .26
SECTION 7.07. Article And Section Headings. . . . . . . . . . . . . . . . .27
SECTION 7.08. Execution in Counterparts . . . . . . . . . . . . . . . . . .27
SECTION 7.09. Rights Cumulative . . . . . . . . . . . . . . . . . . . . . .27
SECTION 7.10. Further Assurances. . . . . . . . . . . . . . . . . . . . . .27
SECTION 7.11. Third-party Beneficiaries . . . . . . . . . . . . . . . . . .27
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EXHIBITS
EXHIBIT A - Schedule of 1997-A Contracts and 1997-A Leased Vehicles
as of the Initial Cutoff Date. . . . . . . . . . . . . . . . A-1
EXHIBIT B - Form of Servicer's Certificate . . . . . . . . . . . . . . . B-1
EXHIBIT C - Form of Power of Attorney. . . . . . . . . . . . . . . . . . C-1
SCHEDULE I Addresses of Branch Offices
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1997-A SUBI SERVICING SUPPLEMENT TO AMENDED AND RESTATED TRUST AND
SERVICING AGREEMENT (the "1997-A SUBI Servicing Supplement"), dated as of
September 1, 1997, among TMTT, INC., a Delaware corporation, as Titling Trustee
of TOYOTA LEASE TRUST, a Delaware business trust (the "Titling Trust") on behalf
of the Titling Trust, TOYOTA MOTOR CREDIT CORPORATION, a California corporation,
as Servicer, and U.S. BANK NATIONAL ASSOCIATION, as Trust Agent.
RECITALS
A. TMCC, the Titling Trustee and, for certain limited purposes set forth
therein, U.S. Bank National Association (formerly known as First Bank National
Association), as Trust Agent, have entered into that certain Amended and
Restated Trust and Servicing Agreement, dated as of October 1, 1996, amending
and restating that certain Trust and Servicing Agreement, dated as of October 1,
1996, among the same parties (as so amended and restated, and as it may be
further amended, supplemented or modified, the "Titling Trust Agreement"),
pursuant to which TMCC and the Titling Trustee formed the Titling Trust for the
purpose of taking assignments and conveyances of, holding in trust and dealing
in, various Titling Trust Assets in accordance with the Titling Trust Agreement.
B. Concurrently herewith, and as contemplated by the Titling Trust
Agreement, TMCC, the Titling Trustee and the Trust Agent are entering into that
certain 1997-A SUBI Supplement to the Titling Trust Agreement, dated as of
September 1, 1997, pursuant to which the Titling Trustee, on behalf of the
Titling Trust and at the direction of TMCC, as UTI Beneficiary, will create and
issue to TMCC a 1997-A SUBI Certificate representing a 100% beneficial interest
in the 1997-A SUBI, whose beneficiaries generally will be entitled to the net
cash flow arising from, but only from, the related 1997-A SUBI Assets, all as
set forth in the Titling Trust Agreement and the 1997-A SUBI Supplement.
C. Also concurrently herewith, TMCC and the Transferor are entering into
that certain 1997-A SUBI Certificate Purchase and Sale Agreement, pursuant to
which TMCC is selling to the Transferor, without recourse, all of TMCC's right,
title and interest in and to the 1997-A SUBI and the 1997-A SUBI Certificate,
all moneys due thereon and paid thereon or in respect thereof and the right to
realize on any property that may be deemed to secure the 1997-A SUBI, and all
proceeds thereof.
D. Also concurrently herewith, and as contemplated by the Titling Trust
Agreement, the Transferor and U.S. Bank National Association, as 1997-A
Securitization Trustee, are entering into that certain Securitization Trust
Agreement, dated as of September 1, 1997 (the "1997-A Securitization Trust
Agreement"), pursuant to which the 1997-A SUBI Certificate will be transferred
to the 1997-A Securitization Trustee, in that capacity on behalf of the
Securitization Trust, in connection with a Securitized Financing thereof by the
Transferor.
<PAGE>
E. The parties desire to supplement the terms of the Titling Trust
Agreement insofar as they apply to the 1997-A SUBI, the 1997-A SUBI Sub-Trust,
and the 1997-A SUBI Certificates to provide for further specific servicing
obligations that will benefit the holders of the 1997-A SUBI Certificates and
the parties to and the beneficiaries of the Transaction Documents relating to
the Securitized Financing contemplated by the 1997-A Securitization Trust
Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree to the following supplemental
obligations with regard to the 1997-A SUBI Sub-Trust:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS. For all purposes of this 1997-A SUBI Servicing
Supplement, except as otherwise expressly provided or unless the context
otherwise requires, capitalized terms used and not otherwise defined herein
shall have the meanings ascribed thereto in the Annex of Definitions attached
to the Titling Trust Agreement or the Annex of Supplemental Definitions attached
to the 1997-A SUBI Supplement for all purposes of this 1997-A SUBI Servicing
Supplement. In the event of any conflict between a definition set forth herein
and that set forth in the Annex of Definitions or Annex of Supplemental
Definitions, that set forth herein shall prevail. All terms used in this 1997-A
SUBI Servicing Supplement include, as appropriate, all genders and the plural as
well as the singular. All references such as "herein", "hereof" and the like
shall refer to this 1997-A SUBI Servicing Supplement as a whole and not to any
particular article or section within this 1997-A SUBI Servicing Supplement. All
references such as "includes" and variations thereon shall mean "includes
without limitation" and references to "or" shall mean "and/or". Any reference
herein to the "Titling Trustee, acting on behalf of the Titling Trust", or words
of similar import, shall be deemed to mean the Titling Trustee, acting on behalf
of Toyota Lease Trust and all beneficiaries thereof. Any reference herein to
the "1997-A Securitization Trustee, acting on behalf of the 1997-A
Securitization Trust", or words of similar import, shall be deemed to mean the
1997-A Securitization Trustee, acting on behalf of the Toyota Auto Lease Trust
1997-A and all beneficiaries thereof.
ARTICLE TWO
REPRESENTATIONS AND WARRANTIES OF SERVICER
SECTION 2.01. REPRESENTATIONS AND WARRANTIES OF SERVICER. The Servicer
represents and warrants to the Titling Trustee, the 1997-A Securitization
Trustee and each SUBI Beneficiary as follows:
(a) ORGANIZATION AND GOOD STANDING. The Servicer has been duly organized
and is 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
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<PAGE>
are currently owned and such business is presently conducted, and had at all
relevant times, and now has, corporate power, authority and legal right to
acquire, own, sell and service the Contracts and related Leased Vehicles and to
hold the related Contract Documents and Certificates of Title as custodian on
behalf of the Titling Trust.
(b) DUE QUALIFICATION. The Servicer 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 (including the servicing of the Contracts and
related Leased Vehicles as required by this Agreement) requires such
qualifications.
(c) POWER AND AUTHORITY. The Servicer has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms; and
the execution, delivery and performance of this Agreement has been duly
authorized by the Servicer by all necessary corporate action.
(d) BINDING OBLIGATIONS. This 1997-A SUBI Servicing Supplement
constitutes a legal, valid and binding obligation of the Servicer enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally or by general principles of equity.
(e) NO CONFLICT. The consummation of the transactions contemplated by
this 1997-A SUBI Servicing Supplement and the fulfillment of the terms of this
1997-A SUBI Servicing Supplement does not conflict with, result in any breach of
any of the terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or bylaws of the
Servicer, or conflict with or breach any of the material terms or provisions of,
or constitute (with or without notice or lapse of time) a default under, any
indenture, agreement or other instrument to which the Servicer is a party or by
which it 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 this 1997-A SUBI Servicing Supplement); nor violate
any law or, to the best of the Servicer's knowledge, any order, rule or
regulation applicable to the Servicer of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or its properties; which breach, default,
conflict, lien or violation would have a material adverse effect on the
earnings, business affairs or business prospects of the Servicer.
(f) NO PROCEEDINGS. To the Servicer's actual knowledge, there is no
action, suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, or to the Servicer's knowledge,
threatened, against or affecting the Servicer (i) asserting the invalidity of
this 1997-A SUBI Servicing Supplement or (ii) seeking any determination or
ruling that might materially and adversely affect the performance by the
Servicer of its obligations under, or the validity or enforceability of, this
1997-A SUBI Servicing Supplement.
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ARTICLE THREE
CREATION OF 1997-A SUBI
SECTION 3.01. INITIAL CREATION OF 1997-A SUBI PORTFOLIO AND 1997-A SUBI
SUB-TRUST.
(a) Pursuant to Section 3.01 of the Titling Trust Agreement and Section
16.01 of the 1997-A SUBI Supplement, the Titling Trustee has been directed to
cause to be identified and allocated on the books and records of the Titling
Trust the separate 1997-A SUBI Portfolio consisting of the 1997-A SUBI Portfolio
and certain other associated Titling Trust Assets meeting the criteria specified
therein. The Titling Trustee, on behalf of the Titling Trust, hereby directs
that the Servicer so identify and allocate such a separate SUBI Portfolio of
Contracts and related Leased Vehicles from among all Titling Trust Assets owned
by the Titling Trustee on behalf of the Titling Trust and currently accounted
for as part of the UTI Sub-Trust.
(b) The Servicer hereby identifies and allocates such a portfolio of
Contracts and related Leased Vehicles more particularly described on Exhibit A
hereto which is in substantially the form of a Schedule of Contracts and Leased
Vehicles, in order to create the initial 1997-A SUBI Portfolio.
(c) The Servicer hereby represents and warrants to the Titling Trustee,
the 1997-A Securitization Trustee and each SUBI Beneficiary that each of the
Contracts described on Exhibit A hereto is an Eligible Contract.
SECTION 3.02. SUBSEQUENT ADDITIONS TO 1997-A SUBI PORTFOLIO AND 1997-A
SUBI SUB-TRUST.
(a) The Titling Trustee is hereby directed to cause to be identified and
allocated on the books and records of the Titling Trust to the 1997-A SUBI
Sub-Trust on or before each Transfer Date certain additional Eligible Contracts,
related Leased Vehicles and other associated Titling Trust Assets not then
allocated, or reserved for allocation, to any other SUBI Portfolio or Sub-Trust.
Such Subsequent Contracts and Subsequent Leased Vehicles to be allocated to the
1997-A SUBI Portfolio and 1997-A SUBI Sub-Trust shall have an aggregate
Discounted Principal Balance as of the related Transfer Date of an amount not
greater than all Principal Collections received after the Cutoff Date (including
the amounts treated as Principal Collections pursuant to Section 3.01 of the
1997-A Securitization Trust Agreement) that have not been so applied pursuant to
this Section 3.02(a). The Titling Trustee, on behalf of the Titling Trust,
hereby directs the Servicer to select at least one Transfer Date each month
during the Revolving Period and to identify such Subsequent Contracts, related
Subsequent Leased Vehicles and other associated Titling Trust Assets (as
described in the 1997-A SUBI Supplement and meeting the other requirements set
forth therein) on or before each Transfer Date, and cause such Subsequent
Contracts and Subsequent Leased Vehicles to be specifically identified on a
supplemental Schedule of Contracts and Leased Vehicles (which, when considered
with all prior Schedules of Contracts and Leased Vehicles, shall be considered
to be the definitive Schedule of Contracts and Leased Vehicles) to be delivered
pursuant to Section 5.01 hereof. On each such Transfer Date, such Subsequent
Contracts, Subsequent Leased Vehicles and
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other associated Titling Trust Assets shall be added to the 1997-A SUBI
Portfolio and 1997-A SUBI Sub-Trust, as the case may be, as additional 1997-A
SUBI Assets.
(b) The Servicer shall give one Business Day's prior notice to the Titling
Trustee of each Transfer Date. On each Transfer Date, the Servicer shall be
deemed to have represented and warranted to the 1997-A Securitization Trustee on
behalf of the 1997-A Securitization Trust that (i) all Subsequent Contracts
added to the 1997-A SUBI Portfolio on that date were Eligible Contracts as of
the relevant Transfer Date, (ii) no adverse selection procedures were employed
in selecting such Subsequent Contracts, (iii) it is not aware of any bias in the
selection of such Subsequent Contracts that would cause the delinquencies or
losses therein to differ from those of the Initial Contracts, other than the
fact that such Subsequent Contracts were selected from all Eligible Contracts
not then allocated to any SUBI Portfolio or reserved for allocation to another
SUBI Portfolio on a "first-in, first-out" basis, based on the date of
origination, and (iv) unless the 1997-A Securitization Trustee receives a letter
from each Rating Agency to the effect that the use of different criteria would
not result in the qualification, reduction or withdrawal of its then current
rating on any Investor Certificates rated by either Rating Agency, after giving
effect to such reallocation (A) each such 1997-A Contract will be allocated to
the 1997-A SUBI Portfolio based upon its Discounted Principal Balance as of the
relevant Transfer Date, (B) the weighted average remaining term of the 1997-A
Contracts (including the Subsequent Contracts) will be not greater than 39
months, and (C) the weighted average Booked Residual Value of all 1997-A
Contracts (including the Subsequent Contracts), as a percentage of the aggregate
Outstanding Principal Balance of the 1997-A Contracts (including the Subsequent
Contracts), will be not greater than 68%, based on the characteristics of all
1997-A Contracts (including the Subsequent Contracts) as of its date of
origination.
(c) From and after the date on which the 1997-A SUBI Lease Funding Account
is required to be maintained as specified in Section 17.02 of the 1997-A SUBI
Supplement, on each Transfer Date the Servicer shall withdraw from the 1997-A
SUBI Collection Account an amount equal to the aggregate Discounted Principal
Balance as of the relevant Transfer Date of the Subsequent Contracts then being
added to the 1997-A SUBI Portfolio and 1997-A SUBI Sub-Trust pursuant to Section
16.01 of the 1997-A SUBI Supplement and the Servicer shall direct the Titling
Trustee to deposit such amount into the Lease Funding Account or for payment to
the UTI Beneficiary, as appropriate, directly in connection with the purchase of
Subsequent Contracts and Subsequent Leased Vehicles.
SECTION 3.03. SERVICER PAYMENT IN RESPECT OF CERTAIN CONTRACTS AND LEASED
VEHICLES.
(a) The representations and warranties of the Servicer set forth in
Sections 3.01(c) and 3.02(b), with respect to each 1997-A Contract shall
survive delivery of the related Contract to the 1997-A SUBI Portfolio and the
1997-A SUBI Sub-Trust and shall continue (speaking as of the dates made) so long
as each such 1997-A Contract remains outstanding, or until the termination of
the 1997-A Securitization Trust Agreement pursuant to Section 7.01 thereof,
whichever occurs earlier. Upon discovery by the Titling Trustee, the 1997-A
Securitization Trustee or the Servicer that any such representation or warranty
was incorrect as of the time specified with respect to such
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representation and warranty and materially and adversely affects such 1997-A
Contract, the party discovering such incorrectness shall give prompt written
notice to the others. Within 60 days of its discovery of such incorrectness or
notice to such effect to the Servicer, the Servicer shall cure in all material
respects the circumstances or condition in respect of which such representation
or warranty was incorrect. If the Servicer is unable or unwilling to do so
timely, it shall, as the sole remedy for such breach, promptly (i) deposit the
Reallocation Payment in respect of such 1997-A Contract into the 1997-A SUBI
Collection Account, (ii) reallocate such 1997-A Contract and the related Leased
Vehicle from the 1997-A SUBI Portfolio to the UTI Portfolio, and (iii)
indemnify, defend and hold harmless the holders of any 1997-A SUBI Certificate
(including without limitation the 1997-A Securitization Trustee on behalf of the
1997-A Securitization Trust and the Certificateholders) and any subsequent
servicer (if other than the current Servicer) from and against, any and all loss
or liability with respect to or resulting from any such 1997-A Contract or
related Leased Vehicle. Notwithstanding the foregoing, if any reallocation
described in clause (ii) would cause the Transferor Interest to be equal to or
less than zero, the Servicer also shall deposit promptly into the 1997-A SUBI
Collection Account the Reallocation Deposit Amount in an amount such that the
Transferor Interest will not be reduced to less than zero, and the reallocation
will not be made until such deposit has been made.
(b) In the event that the Servicer receives funds from a Dealer that is
required, pursuant to a Dealer Agreement, to repurchase a Contract or Leased
Vehicle included in the 1997-A SUBI Portfolio, the Servicer shall, subject to
Section 17.01 of the 1997-A SUBI Supplement, within two Business Days of receipt
thereof, deposit such funds into the 1997-A SUBI Collection Account, which
deposit shall satisfy the UTI Beneficiary's obligations with respect to
enforcement of such Dealer repurchase obligation, and return to the repurchasing
Dealer the Certificate of Title and Contract with respect to such Leased
Vehicle.
(c) The obligations of the Servicer pursuant to this Section 3.03 shall
survive any termination of the Servicer with respect to the 1997-A SUBI
Portfolio and 1997-A SUBI Sub-Trust under this 1997-A SUBI Servicing Supplement
or the Titling Trust Agreement.
SECTION 3.04. FILINGS.
The Servicer will undertake all other and future actions and activities as
may be reasonably necessary to perfect (or evidence) and confirm the foregoing
allocations of Trust Assets to the 1997-A SUBI Portfolio and 1997-A SUBI
Sub-Trust, as the case may be, including filing or causing to be filed UCC
financing statements and executing and delivering all related filings, documents
or writings as may be reasonably necessary hereunder or under any other
Securitization Trust Documents, whether on its own behalf or pursuant to the
power of attorney granted by the Grantor in the 1997-A SUBI Supplement;
provided, however, that in no event shall the Servicer be required to take any
action to perfect a security interest that may be held by the 1997-A
Securitization Trustee in any 1997-A Leased Vehicle.
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ARTICLE FOUR
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING OF CONTRACTS
IN 1997-A SUBI PORTFOLIO
SECTION 4.01. SERVICER BOUND BY TITLING TRUST AGREEMENT.
(a) Except as otherwise specifically provided herein: (i) the Servicer
shall continue to be bound by all provisions of the Titling Trust Agreement with
respect to the Contracts, Leased Vehicles and other associated Titling Trust
Assets in the 1997-A SUBI Sub-Trust, including without limitation the provisions
thereof relating to the administration and servicing of Contracts; and (ii) the
provisions set forth herein shall operate either as additions to or
modifications of the extant obligations of the Servicer under the Titling Trust
Agreement, as the context may require. In the event the provisions of this
1997-A SUBI Servicing Supplement are more exacting or specific than those
contained in the Titling Trust Agreement or in the event of any conflict between
the provisions of this 1997-A SUBI Servicing Supplement with respect to the
1997-A SUBI, and those of the Titling Trust Agreement, the provisions of this
1997-A SUBI Servicing Supplement shall govern.
(b) For purposes of determining the Servicer's obligations with respect to
the servicing of the 1997-A SUBI Sub-Trust under this 1997-A SUBI Servicing
Supplement (including without limitation pursuant to Article Four hereof),
general references in the Titling Trust Agreement to: (i) a SUBI Account shall
be deemed to refer more specifically to the 1997-A SUBI Account; (ii) a SUBI
Asset shall be deemed to refer more specifically to a 1997-A SUBI Asset; (iii)
an appropriate or applicable SUBI Collection Account shall be deemed to refer
more specifically to the 1997-A SUBI Collection Account; (iv) an appropriate or
applicable SUBI Lease Funding Account shall be deemed to refer more specifically
to the 1997-A SUBI Lease Funding Account; (v) a SUBI Portfolio shall be deemed
to refer more specifically to the 1997-A SUBI Portfolio; (vi) a SUBI Sub-Trust
shall be deemed to refer more specifically to the 1997-A SUBI Sub-Trust; (vii) a
SUBI Servicing Supplement shall be deemed to refer more specifically to this
1997-A SUBI Servicing Supplement; and (viii) a SUBI Supplement shall be deemed
to refer more specifically to the 1997-A SUBI Supplement.
(c) Coincident with the execution and delivery of this 1997-A SUBI
Servicing Supplement, the Servicer shall furnish the 1997-A Securitization
Trustee, on behalf of the 1997-A Securitization Trust, with an Officer's
Certificate listing the officers or other authorized signatories of the Servicer
currently involved in, or responsible for, the administration and servicing of
the Contracts in the 1997-A SUBI Portfolio, which list shall from time to time
be updated by the Servicer.
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SECTION 4.02. Collection of Monthly Payments and Remittances;
APPLICATION OF PROCEEDS; ACCOUNTS
(a) The Servicer shall use commercially reasonable efforts, consistent
with its then current standards, policies and procedures or new programs,
whether or not implemented on a test basis, commenced in the ordinary course of
business, to (i) collect all payments required under the terms and provisions of
each Contract included in the 1997-A SUBI Portfolio; (ii) cause each Obligor to
make all payments in respect of the Contract included in the 1997-A SUBI
Portfolio to which such Obligor is a party or otherwise obligated; and (iii) to
deposit all amounts collected or received in respect of the 1997-A Contracts and
1997-A Leased Vehicles into the 1997-A SUBI Collection Account on or before the
Deposit Date relating to each Collection Period except as otherwise specified
herein or in Section 17.01 or Section 17.02 of the 1997-A SUBI Supplement (in
connection with any failure to satisfy the Monthly Remittance Conditions).
(b) Consistent with the foregoing, the Servicer may in its discretion (i)
waive any late payment charge or similar charge, in whole or in part, in
connection with delinquent payments on or deferrals or extensions of a Contract
included in the 1997-A SUBI Portfolio and (ii) defer one or more payments under
a Contract or extend the Maturity Date of any Contract. Notwithstanding the
foregoing, the Servicer may not grant more than four deferrals of any 1997-A
Contract, and may not extend the Maturity Date of any 1997-A Contract by more
than twelve months in the aggregate (or by sixteen months with the inclusion of
any deferrals) or such that its Maturity Date will occur later than the last day
of the Collection Period related to the Stated Maturity Date; provided, however,
that if the Servicer defers payments on any 1997-A Contract more than four times
or extends the Maturity Date thereof by more than twelve months in the aggregate
(or by more than sixteen months with the inclusion of any deferrals) or so that
the extended Maturity Date will occur later than the last day of the Collection
Period relating to the Stated Maturity Date, then, as the sole remedy therefor,
the Servicer shall, on the Deposit Date related to the Collection Period in
which such extension was granted or on the Deposit Date relating to the
Collection Period in which the Servicer discovers or is notified that an
improper extension was granted, (y) deposit into the 1997-A SUBI Collection
Account an amount equal to the then Discounted Principal Balance of such
Contract plus an amount equal to the interest, or lease charge, portion of any
Monthly Payments with respect thereto at the related Lease Rate that were
accrued but unpaid as of the end of that Collection Period, and (z) reallocate
such 1997-A Contract and the related 1997-A Leased Vehicle from the 1997-A SUBI
Portfolio and SUBI Sub-Trust to the UTI Portfolio and UTI Sub-Trust. The
obligations of the Servicer pursuant to this Section 4.02(b) shall survive any
termination of the Servicer's obligations with respect to the 1997-A SUBI
Portfolio under this 1997-A SUBI Servicing Supplement.
(c) As to any Monthly Payments, Liquidation Proceeds, Insurance Proceeds
(excluding proceeds of the Residual Value Insurance Policy which are to be
transferred directly to the Transferor), Prepayments, Payments Ahead or any
other payments by or on behalf of any Obligor or otherwise (excluding any late
fees or deferral fees) with respect to any 1997-A Contract or related Leased
Vehicle, including (if applicable) any proceeds of recourse payments by the
originating Dealer, whether received by the Servicer through any lock box or
similar mechanism used for the
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collection of regular periodic payments on receivables owned or serviced by it
or received directly by the Servicer at any of its servicing offices, but
subject to Section 4.08 of this 1997-A SUBI Servicing Supplement with regard to
Liquidation Proceeds and Insurance Proceeds:
(i) Upon receipt of any such funds (including funds initially
deposited in any Servicer lock-box account), the Servicer shall deposit
such funds into its operating account and shall ascertain promptly the
following information: (A) the amount of each receipt, (B) the Contract
Number to which such receipt relates, (C) the nature of the payment (i.e.,
whether a Monthly Payment, other Liquidation Proceeds, a Prepayment,
payment of the Residual Value of the related Leased Vehicle or any other
payment by or on behalf of any Obligor), (D) the date such payment is
credited; and (E) that such Contract has been allocated to the 1997-A SUBI
Portfolio and 1997-A SUBI Sub-Trust (collectively, the "Payment
Information").
(ii) As to any such funds received by the Servicer after the date,
if any, on which it ceases to satisfy the Monthly Remittance Conditions,
the Servicer shall segregate all such funds from other SUBI Sub-Trusts, and
deposit all such funds (net of reimbursement of any Liquidation Expenses
incurred by the Servicer with respect to any 1997-A Leased Vehicle whose
Liquidation Proceeds are included among such funds) into the 1997-A SUBI
Collection Account maintained by the Titling Trustee.
(iii) Upon the determination by the Servicer that any proceeds
received by it with respect to any 1997-A Contract constitute one or more
Payments Ahead, the Servicer shall, unless otherwise instructed by the
Titling Trustee, (A) maintain appropriate records of such Payment Ahead so
as to be able to timely apply such Payment Ahead as a Monthly Payment with
respect to the applicable Contract and (B) deposit such Payment Ahead into
the 1997-A SUBI Collection Account on the Deposit Date relating to the
Collection Period during which such Payment Ahead is to be applied, or,
after the date, if any, on which it ceases to satisfy the Monthly
Remittance Conditions, with two Business Days of such date.
(d) The Servicer shall treat all Repossessed Vehicle Proceeds and Matured
Leased Vehicle Proceeds in the manner provided for other Liquidation Proceeds in
the Titling Trust Agreement and 1997-A SUBI Supplement; provided, however, as
set forth in Section 4.07 of this 1997-A SUBI Servicing Supplement, that the
Servicer may be reimbursed for related Repossessed Vehicle Expenses, Matured
Leased Vehicle Expenses, other Liquidation Expenses and Insurance Costs as
provided in Section 4.02(h).
(e) The Servicer shall deposit into the 1997-A SUBI Collection Account on
or before each Deposit Date each Security Deposit that was applied in respect of
a Contract during the related Collection Period and not paid to a third party or
to the Servicer as Liquidation Expenses or Matured Leased Vehicle Expenses, or
reimbursements in respect thereof.
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(f) The Servicer, on behalf of the Titling Trustee, shall establish and
maintain the 1997-A SUBI Collection Account as set forth in Section 17.01(a) of
the 1997-A SUBI Supplement.
(g) On each Determination Date the Servicer shall make the calculations
necessary to allow the distribution by the 1997-A Securitization Trustee to
holders of, or to the 1997-A SUBI Accounts on behalf of the holders of, the
1997-A SUBI Certificates on the related Monthly Allocation Date in accordance
with Section 3.01 of the 1997-A Securitization Trust Agreement. In connection
therewith, the Servicer shall determine the amount of Titling Trust Expenses
incurred or suffered during the preceding Collection Period and shall calculate
the allocations of such Titling Trust Expenses among the various Sub-Trusts,
including the 1997-A SUBI Sub-Trust, in good faith and so as not to
disproportionately affect any Sub-Trust, generally as provided for in Section
3.04 or 7.04, as appropriate, of the Titling Trust Agreement.
(h) The Servicer will be entitled to reimbursement of Matured Leased
Vehicle Expenses, Repossessed Vehicle Expenses and other Liquidation Expenses.
The Servicer is hereby authorized to net such expenses from proceeds or
Collections in respect of the related 1997-A Contracts or 1997-A Leased Vehicles
(including other Liquidation Proceeds), or to withdraw such amounts from amounts
on deposit in the 1997-A SUBI Collection Account. The Servicer also will be
entitled to reimbursement of certain payments it makes on behalf of Obligors
(including payments of taxes, vehicle registration charges, clearance of parking
tickets and similar items and expenses and charges incurred by it in the
ordinary course of servicing the 1997-A Contracts) from Collections with respect
to the 1997-A Contracts (whether or not as separate payments thereof by the
related Obligors) or from amounts realized upon the final disposition of 1997-A
Leased Vehicles. To the extent such amounts are not reimbursed prior to or at
the final disposition of the related leased vehicle but remain unpaid by the
related lessee, such unreimbursed amounts (together with any unpaid Monthly
Payments under the related Contract) will be treated as Matured Leased Vehicle
Expenses or Liquidation Expenses, as the case may be, and the Servicer is hereby
authorized to offset such reimbursable payments, expenses and charges against
Net Matured Leased Vehicle Proceeds or Liquidation Proceeds, as the case may be.
To the extent that during any Collection Period (i) Collections, Matured
Leased Vehicle Proceeds, Liquidation Proceeds or separate payments from the
Obligors in respect of such payments, charges and expenses are deposited into
the 1997-A SUBI Collection Account rather than so offset by the Servicer, (ii)
any Monthly Payments arising from a Contract allocated to the 1997-A SUBI
Sub-Trust are received by the Titling Trustee or deposited in the 1997-A SUBI
Collection Account with respect to any prior Collection Period as to which the
Servicer has outstanding an unreimbursed Advance, rather than being netted from
Collections by the Servicer; or (iii) any amount of unreimbursed Advances
already deposited in the 1997-A SUBI Collection Account on any Deposit Date are
reasonably determined by the Servicer to be Nonrecoverable Advances, then, on
the related Deposit Date, the Servicer shall (y) notify the Titling Trustee and
the 1997-A Securitization Trustee in writing as to any such amount and (z)
instruct the Titling Trustee to, and the Titling Trustee shall, promptly
transfer an amount equal to the aggregate of such amounts from the 1997-A SUBI
Collection Account, to the 1997-A SUBI Lease Funding Account. Thereafter, the
Titling Trustee
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shall remit to the Servicer from the 1997-A SUBI Lease Funding Account the total
of such amounts, without interest (the "Servicer Reimbursement"). In lieu of
causing the Titling Trustee to transfer such amounts to the 1997-A SUBI Lease
Funding Account (or in the event the 1997-A Lease Funding Account has not been
required to be established as set forth in Section 17.02 of the 1997-A SUBI
Supplement), the Servicer is hereby authorized to deduct such amounts from
amounts on deposit or otherwise to be deposited into the 1997-A SUBI Collection
Account.
(i) The Servicer shall account to the Titling Trustee and the 1997-A
Securitization Trustee with respect to the 1997-A SUBI Sub-Trust separately from
any other Sub-Trust.
(j) The Servicer shall direct the Titling Trustee or the 1997-A
Securitization Trustee, as applicable, to invest amounts held in the 1997-A SUBI
Accounts and the Reserve Fund in Permitted Investments as provided in (and
subject to the limitations of) the Titling Trust Agreement, 1997-A SUBI
Supplement and the 1997-A Securitization Trust Agreement. The maximum
permissible maturities of any such investments pursuant to this clause on any
date shall be not later than the Business Day immediately preceding the Monthly
Allocation Date next succeeding the date of such investment, except for (i)
investments on which the Trust Agent or 1997-A Securitization Trustee,
respectively, is the obligor (including repurchase agreements as to which it, in
its commercial capacity, is liable as principal), which may mature on the
Monthly Allocation Date, (ii) investments during the Revolving Period of
Principal Collections (including amounts treated as Principal Collections
pursuant to Section 3.01(b) of the 1997-A Securitization Trust Agreement) on
deposit in the 1997-A SUBI Collection Account, which may mature on such dates as
specified by the Titling Trustee at the Servicer's direction so as to maintain
the availability of sufficient cash to make payments pursuant to Section 3.02(c)
hereof, and (iii) prior to the occurrence of a Monthly Payment Event, if any,
amounts on deposit in the 1997-A Certificateholders' Account, which may mature
on the Business Day immediately preceding, the next succeeding Certificate
Payment Date or the next succeeding Targeted Maturity Date, as applicable (as
specified in the related TMCC Demand Note in accordance with the terms of the
Indenture).
(k) In the event the Servicer provides to the UTI Beneficiary, the Titling
Trustee and the 1997-A Securitization Trustee a letter from each Rating Agency
to the effect that the utilization by the Servicer of a remittance schedule
differing from those contemplated herein or in the 1997-A SUBI Supplement with
respect to Collections to be deposited in the 1997-A SUBI Collection Account
will not result in a qualification, downgrading or withdrawal of the
then-current rating assigned to the Rated Certificates by such Rating Agency,
(i) this 1997-A SUBI Servicing Supplement (and any corresponding or related
Sections in the 1997-A SUBI Supplement) may be so modified without the consent
of any Certificateholders and (ii) the Servicer may remit such collections to
the 1997-A SUBI Collection Account in accordance with that alternative
remittance schedule.
(l) The parties hereto acknowledge that the Titling Trustee, on behalf of
the Titling Trust, has made a complete transfer to the 1997-A Securitization
Trustee of the Collections in respect of the 1997-A SUBI Assets contained in the
1997-A SUBI Collection Account (excluding proceeds of
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the Residual Value Insurance Policy which are the sole property of the
Transferor) and, except as provided in this 1997-A SUBI Servicing Supplement,
the 1997-A SUBI Supplement and the 1997-A Securitization Trust Agreement,
neither the Titling Trustee nor the Servicer has any right to direct such funds
to a third party or to receive such funds (other than to receive such funds
pursuant to an investment thereof in Permitted Investments on which such party
is the obligor).
(m) In the event of a sale, disposition or other liquidation of the 1997-A
SUBI Certificate and the other property of the 1997-A Securitization Trust
pursuant to Section 8.02 of the 1997-A Securitization Trust Agreement, the
Servicer shall allocate the net proceeds thereof between Principal Collections
and Interest Collections as set forth in the 1997-A Securitization Trust
Agreement.
SECTION 4.03. RECORDS.
(a) As to any proceeds or other receipts with respect to any Trust Asset,
including without limitation Monthly Payments, Prepayments, Liquidation Proceeds
and any other payments by or on behalf of any Obligor or otherwise with respect
to any 1997-A Contract or 1997-A Leased Vehicle, the Servicer shall maintain or
cause to be maintained such computer and manual records with respect to all such
proceeds and other receipts in accordance with the customary and usual
procedures of institutions which service closed-end automobile and light duty
truck leases and, to the extent more exacting, in conformity in all material
respects with the procedures used by the Servicer in respect of any such leases
serviced by it for its own account or the accounts of its Affiliates.
(b) The Servicer shall retain or cause to be retained all data (including,
without limitation, computerized records), together with all operating software
and appropriate documentation, relating directly to or maintained in connection
with the servicing of the 1997-A Contracts (the "Contract Records") consistent
with its then applicable retention policies or applicable law. The Servicer
shall provide or cause to be provided to the Titling Trustee, on behalf of the
Titling Trust, upon its request, copies of all such data and appropriate
documentation retained by the Servicer at all reasonable times and upon
reasonable notice. The Servicer shall promptly report to the Titling Trustee,
on behalf of the Titling Trust, any failure on its part to maintain the Contract
Records as herein provided and promptly take appropriate action to remedy any
such failure.
(c) Upon the occurrence and during the continuance of an Event of
Servicing Termination or if the rights of the Servicer with respect to the
1997-A SUBI Portfolio are terminated in accordance with Section 6.01(b) of this
1997-A SUBI Servicing Supplement or, if this 1997-A SUBI Servicing Supplement is
terminated pursuant to Section 7.01, the Servicer shall, on demand of the
Titling Trustee, on behalf of the Titling Trust (either at the request of the
1997-A Securitization Trustee or, as provided in Section 6.01(b) of this 1997-A
SUBI Servicing Supplement, upon demand of Investor Certificateholders
representing not less than 51% of the aggregate Voting Interest), deliver to the
Titling Trustee all such data, operating software and appropriate documentation
necessary for the servicing of the 1997-A Contracts, including but not limited
to the related Contract Documents and Title Documents, all moneys collected by
it and required to be
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deposited in any 1997-A SUBI Account on behalf of the Titling Trust, or in the
1997-A SUBI Collection Account or the Reserve Fund on behalf of the 1997-A
Securitization Trust, all Security Deposits with respect to 1997-A Contracts,
and any 1997-A Leased Vehicle in the possession of the Servicer that has been
repossessed or is part of Matured Leased Vehicle Inventory and in either case
has not yet been sold or otherwise disposed of. In addition to delivering such
data, operating software and appropriate documentation and moneys, if a new
servicer is appointed, the Servicer shall use its commercially reasonable
efforts to effect the orderly and efficient transfer of the servicing of the
1997-A Contracts to the party that will be assuming responsibility for such
servicing, including, without limitation, directing Obligors to remit payments
in respect of such Contracts to an account or address designated by the Titling
Trustee or such new servicer.
SECTION 4.04. COLLECTION AND APPLICATION OF SECURITY DEPOSITS.
Subject to Section 4.03(c) of this 1997-A SUBI Servicing Supplement, the
Servicer shall retain each Security Deposit remitted to it (or deemed remitted
to it) as agent and bailee for the Obligor until such time as the Titling Trust,
the Titling Trustee on behalf of the Titling Trust, or the Servicer may lawfully
and under the terms of the related Contract apply such Security Deposit against
unpaid amounts owed under the Contract, damages to the related Leased Vehicle,
excess wear and tear charges, expenses in connection with the refurbishment and
disposal of the related Leased Vehicle or against fees, charges, payments or
expenses advanced or paid by the Servicer in accordance with applicable law, its
customary and usual servicing procedures and the related Contract, from and
after which time such amounts will be 1997-A SUBI Assets, subject to any
reimbursement due to the Servicer. To the extent any Security Deposit or
portion thereof is to be treated as proceeds of a Contract or Leased Vehicle,
the related Security Deposit or such portion shall be deemed to be Liquidation
Proceeds. On each Deposit Date, but otherwise as provided in Section
4.02(c)(ii) of this 1997-A SUBI Servicing Supplement, the Servicer shall deposit
into the 1997-A SUBI Collection Account each Security Deposit that became
Liquidation Proceeds during the previous month; otherwise, each Security
Deposit, after deduction for amounts applied towards the payment or
reimbursement of any amount described above, shall be returned to the related
Obligor by the Servicer upon termination of such Contract.
SECTION 4.05. ADVANCES.
(a) On or prior to each Deposit Date, the Servicer shall make an Advance
with respect to each outstanding delinquent 1997-A Contract and each 1997-A
Contract as to which payments have been deferred resulting in the diminution of
the amount to be received on any Due Date relative to the amount of each
originally scheduled Monthly Payment if such 1997-A Contract has not been
reallocated to the UTI Portfolio with an accompanying Reallocation Payment.
Each such Advance will be made by deposit into the 1997-A SUBI Collection
Account of an amount equal to the aggregate amount of Monthly Payments due but
not received during the related Collection Period.
(b) Notwithstanding any other provision of this 1997-A SUBI Servicing
Supplement, the Servicer shall not be obligated to make any Advance in respect
of any 1997-A Contract if the
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Servicer shall have reasonably determined that any such Advance, if made, would
constitute a Nonrecoverable Advance. Any such determination relating to a claim
by the Servicer for reimbursement of Nonrecoverable Advances from monies on
deposit on the 1997-A SUBI Collection Account shall be evidenced by an Officer's
Certificate (or the statement to Certificateholders or the certification by any
other authorized signatory) of the Servicer furnished to each UTI Beneficiary,
the Titling Trustee and the 1997-A Securitization Trustee setting out the basis
for such determination, which determination shall be conclusive and binding
absent manifest error.
SECTION 4.06. PAYMENT OF CERTAIN FEES AND EXPENSES; NO OFFSET.
(a) As part of its obligations hereunder, to the extent that cash flows
relating to the 1997-A SUBI Sub-Trust, as set forth in Section 3.01(b) of the
1997-A Securitization Trust Agreement, are insufficient to provide for the
payment of all fees and expenses due to the Titling Trustee or the 1997-A
Securitization Trustee as Capped Titling Trust Administrative Expenses, Capped
Securitization Trust Administrative Expenses or Uncapped Administrative
Expenses, the Servicer shall advance an amount equal to such excess fees and
expenses as they become payable from time to time and agrees to indemnify the
Titling Trustee and the 1997-A Securitization Trustee and their respective
agents for such amounts. The Servicer shall be entitled to reimbursement of
such advances as set forth the 1997-A Securitization Trust Agreement. The
obligations of the Servicer pursuant to this Section shall survive any
termination of the Servicer's rights and obligations with respect to the 1997-A
SUBI Portfolio under this 1997-A SUBI Servicing Supplement.
(b) Prior to the termination of the Servicer's rights and obligations with
respect to the 1997-A SUBI Sub-Trust and thereafter if such termination results
from an Event of Servicing Termination, the obligations of the Servicer with
respect to the 1997-A SUBI Sub-Trust shall not be subject to any defense,
counterclaim or right of offset that the Servicer has or may have against any
UTI Beneficiary, the Titling Trustee on behalf of the Titling Trust, or the
1997-A Securitization Trustee, whether in respect of this 1997-A SUBI Servicing
Supplement, the 1997-A SUBI Supplement, any Securitization Trust Document, any
1997-A Contract, any related Contract Document, any 1997-A Leased Vehicle or
otherwise.
SECTION 4.07. SERVICING COMPENSATION.
(a) As compensation for the performance of its obligations under this
1997-A SUBI Servicing Supplement, the Servicer shall be entitled to receive from
the Titling Trustee, on behalf of the Titling Trust, on each Monthly Allocation
Date, the Servicing Fee equal to the sum of:
(i) An amount (the "Servicing Rate Portion") equal to one-twelfth
of 1.00% of the Aggregate Net Investment Value as of the first day of the
related Collection Period; and
(ii) Any late fees, deferral fees and other administrative fees or
similar charges paid by any Obligor pursuant to a 1997-A Contract during
the related Collection Period;
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provided, however, the Servicing Fee shall be paid out of cash flows and in
accordance with the priorities of payments specified in Section 3.01(b) of the
1997-A Securitization Trust Agreement and the Servicer may be reimbursed for
advancing certain Administrative Expenses as provided in this 1997-A SUBI
Servicing Supplement. Further, as additional servicing compensation with regard
to the 1997-A SUBI Sub-Trust, the Servicer also shall receive income as and to
the extent provided in the 1997-A Securitization Trust Agreement.
The Servicing Rate Portion will be calculated and paid based upon a 360-day
year consisting of twelve 30-day months. The Servicer shall pay all expenses
incurred by it in connection with its servicing activities hereunder and shall
not be entitled to reimbursement of such expenses except to the extent they
constitute Liquidation Expenses or expenses recoverable under an applicable
insurance policy, as provided in Section 4.12 of this 1997-A SUBI Servicing
Supplement. For so long as there shall be only one Servicer for the Titling
Trust, the Servicing Fee shall be deemed to be an expense incurred with respect
to the Titling Trust Assets generally; if at any time the Servicer shall only
service some (but not all) Sub-Trusts, the Servicing Fee shall be deemed to be
an expense incurred with respect to that discrete group of Titling Trust Assets
contained in the Sub-Trusts the Servicer then services.
(b) So long as TMCC is the Servicer, the Servicer may, by notice to the
Titling Trustee and the 1997-A Securitization Trustee on or prior to any
Determination Date, waive its Servicing Fee with respect to the related
Collection Period, if the Servicer believes that sufficient collections will be
available from Interest Collections on one or more future Monthly Allocation
Dates (other than from amounts on deposit in the Reserve Fund) to pay such
waived Servicing Fee, without interest. If the Servicer waives such Servicing
Fee, the Servicing Fee with respect to such Collection Period shall be deemed to
be zero for all purposes, provided, however, that for purposes of Section
3.01(b)(iv) of the 1997-A Securitization Trust Agreement, any such waived
Servicing Fee thereafter shall be treated as an unpaid Servicing Fee with
respect to a prior Collection Period (unless the Servicer continues to waive
such Servicing Fee for subsequent Monthly Allocation Dates or waives such
Servicing Fee permanently).
SECTION 4.08. REPOSSESSION AND SALE OF LEASED VEHICLES.
In accordance with the procedures used by the Servicer in respect of any
comparable leases and leased vehicles serviced by it for its own account or the
accounts of its Affiliates (including procedures used in connection with new
programs commenced in the ordinary course of business, whether or not
implemented on a test basis), the Servicer shall use its commercially reasonable
efforts to repossess or otherwise take possession of the Leased Vehicle related
to any 1997-A Contract that the Servicer shall have determined to be in default
or a 1997-A Contract as to which a Prepayment has been made but the related
Leased Vehicle has not been purchased by the Obligor.
The Servicer shall, in accordance with the standards set forth in the
immediately preceding paragraph:
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(a) follow such practices and procedures as it shall deem
necessary or advisable in its servicing of closed-end automobile and light
duty truck leases, which may include reasonable efforts to realize upon any
recourse to Dealers, consigning a Leased Vehicle to a motor vehicle dealer
for resale or selling a Leased Vehicle at public or private sale; and
(b) sell or otherwise dispose of each 1997-A Leased Vehicle that
is repossessed in accordance with the related 1997-A Contract or that
becomes part of Matured Leased Vehicle Inventory for the 1997-A SUBI
Sub-Trust and, if such related Contract is in default, shall commence and
prosecute any proceedings in respect of such Contract (and such Leased
Vehicle) in its own name or, if the Servicer deems it necessary, in the
name of the Titling Trustee, on behalf of the Titling Trust.
The obligations of the Servicer under this Section are subject to the
provision that, in the event of damage to a 1997-A Leased Vehicle from a cause
for which the Obligor under the related 1997-A Contract was not required to
obtain casualty insurance or maintain such insurance in full force and effect,
the Servicer shall not be required to expend its own funds in repairing such
Leased Vehicle unless it shall reasonably determine that such restoration will
increase Liquidation Proceeds (net of Liquidation Expenses) of the related
Contract by at least an equivalent amount. The Servicer shall only expend funds
in connection with the repossession and/or sale of any 1997-A Leased Vehicle to
the extent that it reasonably determines that Liquidation Expenses will not
exceed the anticipated Liquidation Proceeds. The Servicer shall be responsible
for all other costs and expenses incurred by it in connection with any action
taken in respect of a 1997-A Contract or the related Leased Vehicle; provided,
however, that it shall be entitled to reimbursement of such costs and expenses
to the extent they constitute Liquidation Expenses or expenses recoverable under
an applicable Insurance Policy. All Liquidation Proceeds and Insurance Proceeds
(other than proceeds of the Residual Value Insurance Policy) shall be deposited
and transferred as provided in Section 4.02 of this 1997-A Servicing Supplement.
Notwithstanding the foregoing, in the event the Servicer determines that, in
accordance with its normal servicing procedures, it will apply the Insurance
Proceeds with respect to a damaged or destroyed Leased Vehicle to the
substitution of another vehicle (for which the Contract will remain in force,
but will relate to such substituted vehicle), the Servicer shall be permitted to
so apply such Insurance Proceeds and shall not report or treat such funds as
Insurance Proceeds hereunder. Any such substituted vehicle shall thereafter be
the relevant 1997-A Leased Vehicle and such vehicle shall be the "related Leased
Vehicle" with respect to such 1997-A Contract, for all purposes of the 1997-A
SUBI Sub-Trust.
Notwithstanding the foregoing, prior to transferring any such funds out of
its operating account, the Servicer shall first deduct therefrom any
unreimbursed Liquidation Expenses and expenses recoverable under an applicable
Insurance Policy. In connection with this Section, the Titling Trustee, on
behalf of the Titling Trust, shall grant to the Servicer a power of attorney in
the form attached as Exhibit C with regard to the 1997-A Leased Vehicles, with
full power of substitution. If a Servicer conducts such a substitution it shall
give prompt written notice thereof to the Titling Trustee.
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The Servicer is not required hereby to deduct from Repossessed Vehicle
Proceeds, Matured Leased Vehicle Proceeds or other Liquidation Proceeds or
Insurance Proceeds with respect to any particular 1997-A Leased Vehicle all
related unreimbursed Repossessed Vehicle Expenses, Matured Leased Vehicle
Expenses or other Liquidation Expenses or Insurance Expenses prior to
transferring such funds out of its operating account. Such expenses may instead
be reimbursed as provided in Section 4.02(h) of this 1997-A SUBI Servicing
Supplement.
SECTION 4.09. SERVICER TO ACT ON BEHALF OF TITLING TRUST.
(a) In order to facilitate the servicing of the 1997-A SUBI Sub-Trust by
the Servicer, the Titling Trustee, on behalf of the Titling Trust, hereby
appoints the Servicer as its agent and bailee to retain possession of the
related Contract Documents, Title Documents and any other related items that
from time to time come into possession of the Servicer, and the Servicer hereby
accepts such appointment.
(b) The Servicer shall maintain each such Contract Document and Title
Document at its offices identified on the attached Schedule I, or at such other
office as shall be specified by the Servicer to the Titling Trustee on 30 days'
prior notice. The Servicer shall promptly report to the Titling Trustee any
failure on its part to retain possession of any such Contract Documents or Title
Documents and promptly take appropriate action to remedy any such failure.
(c) Upon written instructions from the Titling Trustee, on behalf of the
Titling Trust, setting forth a reasonable basis therefor, or in the exercise of
its duties and powers hereunder, the Servicer shall release any Contract
Document, Title Document, or other related item to the Titling Trustee or its
agent or designee, as the case may be, at such place or places as the Titling
Trustee may designate, as soon as practicable. The Servicer shall not be
responsible for any loss occasioned by the failure of the Titling Trustee to
return any document or any delay in doing so.
(d) The Servicer shall be deemed to have received proper instructions with
respect to any such Contract Document, Title Document, any other related item or
any Contract Record, upon its receipt of written instructions by a Responsible
Officer of the Titling Trustee. A certified copy of a bylaw or a resolution of
the Board of Directors of the Titling Trustee shall constitute conclusive
evidence of the authority of any such Responsible Officer to act and shall be
considered in full force and effect until receipt by the Servicer of written
notice to the contrary given by the Titling Trustee.
(e) The Servicer shall identify from time to time all (i) periodic sales
and use tax or property (real or personal) tax reports, (ii) periodic renewals
of licenses and permits, (iii) periodic renewals of qualification to act as a
trust and a business trust and (iv) other periodic governmental filing,
registration or approvals (collectively, "Filings") arising with respect to or
required of the Titling Trust or the Titling Trustee, including (in the case of
clauses (ii) and (iv)) such licenses, permits, and other Filings as are required
for the Titling Trust or the Titling Trustee to accept assignments of 1997-A
Contracts and to be identified as the owner of 1997-A Leased Vehicles on their
Certificates of Title. The Servicer shall also identify any surety bonds or
other ancillary
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undertakings required of the Titling Trust or the Titling Trustee in respect of
any Filing. The Servicer shall timely prepare and file, or cause to be filed,
with the cooperation of the Titling Trustee, on behalf of the Titling Trustee,
or the Titling Trust with the appropriate Person each Filing and each such
ancillary undertaking with a copy to the Titling Trustee. In connection with
this Section, the Titling Trustee, on behalf of the Titling Trust, shall grant
to the Servicer such authority, including without limitation any necessary power
of attorney in the form attached as Exhibit C, as it may require in order to
effect each such Filing and ancillary undertaking. Should the Servicer at any
time receive notice, or have actual knowledge, of any non-compliance with any
Filing requirement, it shall promptly so notify the Titling Trustee.
(f) The Titling Trustee shall deliver to the Servicer, promptly upon their
execution and delivery by the parties thereto, the Titling Trust Agreement and
each amendment and supplement thereto as any such amendment and supplement
relates to the 1997-A SUBI Sub-Trust. The Servicer shall not act contrary to
any provision of the Titling Trust Agreement as it relates to the 1997-A SUBI
Sub-Trust, as so amended or supplemented.
SECTION 4.10. INDEMNIFICATION BY SERVICER.
The Servicer (for purposes of this Section, the "Indemnifying Party")
agrees to indemnify, defend and hold harmless the 1997-A Securitization Trustee,
the Titling Trustee and each of their respective agents (each an "Indemnified
Party") for any and all liabilities, losses, damages and expenses (including
without limitation reasonable fees and expenses of counsel) that may be incurred
by any Indemnified Party as a result of any act or omission by the Servicer in
connection with its maintenance and custody of the Contract Documents, Title
Documents, and Contract Records with respect to 1997-A Contracts and 1997-A
Leased Vehicles, the servicing of the 1997-A Contracts, the Servicer's
undertakings in clause (e) of Section 4.09 of this 1997-A SUBI Servicing
Supplement or any other activity undertaken or omitted by the Servicer with
respect to any 1997-A SUBI Asset. Promptly after receipt by an Indemnified Party
under this Section of notice of the commencement of any action, such Indemnified
Party will, if a claim in respect thereof is to be made against the Indemnifying
Party under this Section, notify the Indemnifying Party of the commencement
thereof. In case any such action is brought against any Indemnified Party and
it notifies the Indemnifying Party of the commencement thereof, the Indemnifying
Party will assume the defense thereof, with counsel reasonably satisfactory to
such Indemnified Party (who may, unless there is, as evidenced by an opinion of
counsel to the Indemnified Party stating that there is an unwaivable conflict of
interest, be counsel to the Indemnifying Party), and the Indemnifying Party will
not be liable to such Indemnified Party under this Section for any legal or
other expenses subsequently incurred by such Indemnified Party in connection
with the defense thereof other than reasonable costs of investigation. The
obligations set forth in this Section shall survive the termination of this
1997-A SUBI Servicing Supplement or the resignation or removal of the Servicer
(generally or with respect to the 1997-A SUBI Sub-Trust) or the 1997-A
Securitization Trustee.
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SECTION 4.11. THIRD PARTY CLAIMS.
The Servicer shall immediately notify TMCC (in the event that TMCC is not
acting as the Servicer hereunder) and the Titling Trustee, on behalf of the
Titling Trust, the 1997-A Securitization Trustee and any other holder of any
1997-A SUBI Certificate upon its learning that a claim of whatever kind that
would have a material adverse impact on any UTI Beneficiary, the Transferor, the
Titling Trustee, the Titling Trust, the 1997-A Securitization Trust, the 1997-A
Securitization Trustee, any 1997-A SUBI Asset or the Servicer is being made by a
third party with respect to any Contract or Leased Vehicle (whether or not
included in the 1997-A SUBI Sub-Trust) or the servicing thereof or with respect
to any other Titling Trust Asset (whether or not constituting a 1997-A SUBI
Asset).
SECTION 4.12. INSURANCE POLICIES.
So long as any 1997-A SUBI Certificates are outstanding, the Servicer will
maintain and pay when due all premiums with respect to, and the Servicer may not
terminate or cause the termination of the following (all premiums with respect
to which shall constitute Administrative Expenses): (i) the Contingent and
Excess Liability Insurance Policies unless (A) one or more replacement insurance
policies or binder(s) is obtained providing coverage against third party claims
that may be raised against the Titling Trustee, on behalf of the Titling Trust,
with respect to any Leased Vehicle included in the 1997-A SUBI Sub-Trust in an
amount at least equal to $10 million per claim, not subject to any annual or
aggregate cap (which policy or policies may be a blanket insurance policy or
policies covering the Servicer and one or more of its Affiliates), or (B) either
each Rating Agency has delivered a letter to the 1997-A Securitization Trustee
to the effect that the obtaining of any such replacement insurance policy or
policies, in and of itself, will not cause its then-current rating of any of the
Rated Certificates to be qualified, reduced or withdrawn; or (ii) the Residual
Value Insurance Policy, unless the 1997-A Contracts may properly be treated as
finance leases for purposes of generally accepted accounting principles,
consistently applied, by virtue of some reason other than maintenance of that
policy, and the Servicer has provided to the Titling Trustee and the 1997-A
Securitization Trustee an Officer's Certificate to that effect, describing such
reasons which shall be in accordance with GAAP. On or before December 31 of
each year, the Servicer shall provide to the Titling Trustee one or more
Officer's Certificates (or certification by a duly authorized signatory of the
Servicer) certifying that the policies it is required to maintain pursuant to
this Section remain in full force and effect. The obligations of the Servicer
pursuant to this Section shall survive any termination of the Servicer's
obligations with respect to the 1997-A SUBI Sub-Trust under this 1997-A SUBI
Servicing Supplement.
SECTION 4.13. SERVICER NOT TO RESIGN; ASSIGNMENT.
(a) Except as provided in Section 6.01 of this 1997-A SUBI Servicing
Supplement, the Servicer shall not resign from the duties and obligations hereby
imposed on it as Servicer except upon determination by its Board of Directors
(or the Executive Committee thereof) that by reason of a change in applicable
legal requirements the continued performance by the Servicer of its duties
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as Servicer under this 1997-A Servicing Supplement would cause it to be in
violation of such legal requirements in a manner that would result in a material
adverse effect on the Servicer or its financial condition, said determination to
be evidenced by a Board Resolution to such effect accompanied by an Opinion of
Counsel reasonably satisfactory to the Titling Trustee of Independent counsel
reasonably satisfactory to the Titling Trustee, to such effect. No such
resignation shall become effective unless and until a new servicer is willing to
service the Contracts and enters into a servicing agreement with the Titling
Trustee, on behalf of the Titling Trust, such agreement to have substantially
the same provisions as this Servicing Agreement. The Titling Trustee, on behalf
of the Titling Trust, shall not unreasonably fail to consent to such a servicing
agreement.
(b) If the Servicer resigns in the circumstances contemplated by clause
(a) above, in addition to the requirements set forth therein, the Opinion of
Counsel required thereby also shall be reasonably satisfactory to the 1997-A
Securitization Trustee. The 1997-A Securitization Trustee shall not
unreasonably fail to consent to a servicing agreement with a new servicer that
proposes to enter into a servicing agreement that meets the standards required
by this 1997-A SUBI Servicing Supplement. No such resignation shall affect the
obligation of the Servicer to remit moneys to the 1997-A SUBI Collection Account
(in lieu of unrecoverable insurance proceeds pursuant to Section 4.14), or the
obligations of the Servicer pursuant to Sections 3.03(a), 4.04, 4.06(a), 4.10
or 4.12 of this 1997-A SUBI Servicing Supplement; no successor Servicer shall be
required to undertake any of the foregoing, other than the obligation set forth
in Section 4.06(a) of this 1997-A SUBI Servicing Supplement (which shall remain
a joint and several obligation of the initial Servicer and any successor
Servicer). The Titling Trustee shall give prompt notice to each Rating Agency
of any such resignation of the Servicer, and the Titling Trustee and 1997-A
Securitization Trustee and of the proposed substitute servicer.
(c) The Servicer may not assign this Servicing Agreement or any of its
rights, powers, duties or obligations hereunder; provided, however, that the
Servicer may assign this Servicing Agreement in connection with a consolidation,
merger, conveyance, transfer or lease made in compliance with Section 4.15 of
this 1997-A SUBI Servicing Supplement.
(d) Except as provided above, the duties and obligations of the Servicer
under this 1997-A SUBI Servicing Supplement shall continue until this 1997-A
SUBI Servicing Supplement shall have been terminated as provided in Section 7.01
of this 1997-A SUBI Servicing Supplement and shall survive the exercise by the
Titling Trustee, on behalf of the Titling Trust, of any right or remedy under
this 1997-A SUBI Servicing Supplement or the enforcement by the Titling Trustee,
on behalf of the Titling Trust, of any provision of the Titling Trust Documents.
SECTION 4.14. OBLIGOR INSURANCE COVERAGE IN RESPECT OF LEASED VEHICLES.
The Servicer shall use its normal servicing procedures (including
procedures used in connection with new programs commenced in the ordinary course
of business, whether or not implemented on a test basis) to ensure that the
Obligor under each Contract shall have, and maintain in full force and effect
during the term of such Contract, a comprehensive, collision and property
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damage insurance policy covering the actual cash value of the related Leased
Vehicle and naming the Titling Trust or the Titling Trustee on behalf of the
Titling Trust as a loss payee, as well as public liability, bodily injury and
property damage coverage in the amounts required by applicable state law or as
set forth in such Contract, and naming the Titling Trust or the Titling Trustee
on behalf of the Titling Trust as an additional insured. Notwithstanding the
foregoing, if an insurance policy names the Servicer rather than the Titling
Trust or the Titling Trustee on behalf of the Titling Trust as loss payee or
additional insured, the Servicer shall not be required to correct such
designation as long as the Servicer is responsible for any increased deductibles
under any Contingent and Excess Liability Policy as provided in the following
paragraph. Except as otherwise set forth in this 1997-A SUBI Servicing
Supplement or in any other Securitization Trust Document, the Servicer shall, on
at least a monthly basis, deposit into the 1997-A SUBI Collection Account any
proceeds of such Insurance Policy that the Servicer may receive with respect to
any 1997-A Leased Vehicle.
In each case as to which a deductible is applicable under any Contingent
and Excess Liability Policy, the Servicer will pay the deductible on behalf of
the insured. The foregoing obligation of the Servicer shall survive the
resignation of the Servicer or any termination of it as Servicer under this
1997-A SUBI Servicing Supplement pursuant to Section 6.01 of this 1997-A SUBI
Servicing Supplement.
SECTION 4.15. CORPORATE EXISTENCE; STATUS; MERGER.
(a) The Servicer shall keep in full effect its existence, rights and
franchises (except as set forth in (b) below) as a California corporation and
will obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or the earnings of the
Servicer and its subsidiaries considered as a whole, and in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of, or to permit the Servicer to perform its obligations under,
the Titling Trust Documents.
(b) The Servicer shall not consolidate with or merge into any other
corporation or convey, transfer or lease all or substantially all of its assets
as an entirety to any Person without the prior written consent of the Titling
Trustee, on behalf of the Titling Trust, unless (i) the corporation formed by
such consolidation or into which the Servicer has merged or the Person which
acquires by conveyance, transfer or lease all or substantially all the assets of
the Servicer as an entirety is (A) a citizen of or an entity organized and
existing under the laws of the United States or any State and (B) either
executes and delivers to the Titling Trustee, on behalf of the Titling Trust, an
agreement in form and substance reasonably satisfactory to the Titling Trustee,
that contains an assumption by such successor entity of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by the Servicer under this 1997-A SUBI Servicing Supplement and the
other Trust Documents or is so bound by operation of law, or (ii) the Servicer
is the surviving corporation resulting from such consolidation or merger.
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ARTICLE FIVE
STATEMENTS AND REPORTS
SECTION 5.01. REPORTING BY THE SERVICER.
(a) On or prior to the 25th day of each calendar month, the Servicer shall
cause to be delivered to the Titling Trustee a report in respect of the prior
calendar month, setting forth (i) any information relating to the 1997-A
Contracts or the related Leased Vehicles that normally would be available from a
servicer of closed-end automobile and light-duty truck leases and is reasonably
requested by the Titling Trustee and (ii) if required, any additional
information required by the terms of any Securitized Financing, and (c) deliver
such other reports, Officer's Certificates or certificates from other authorized
signatories as may be necessary pursuant to this 1997-A SUBI Servicing
Supplement to document to the Titling Trustee the Servicer's right to any
further reimbursement of unreimbursed Servicer Expenses.
(b) On or prior to each Determination Date and each Transfer Date, the
Servicer shall cause to be delivered to the Titling Trustee and the 1997-A
Securitization Trustee a supplement to the Schedule of 1997-A Contracts and
1997-A Leased Vehicles containing data reflecting the addition or removal of
1997-A Contracts or 1997-A Leased Vehicles from the 1997-A SUBI Portfolio as of
the first day of the current Collection Period (in the case of each
Determination Date) or as of the related Subsequent Cutoff Date (in the case of
each Transfer Date). Any such supplement shall contain, in addition to the data
required by the definition of the term "Schedule of Contracts and Leased
Vehicles", an identification of the Discounted Principal Balance of each 1997-A
Contract added or removed. In addition, the Servicer shall, on or prior to each
Determination Date, cause to be delivered to the Titling Trustee, the 1997-A
Securitization Trustee and each Rating Agency a certificate in the name of the
Servicer, executed by an officer or authorized signatory therefor in respect of
such Collection Period (the "Servicer's Certificate") substantially in the form
attached hereto as Exhibit B (and setting forth such additional information as
requested by each Rating Agency from time to time and which information the
Servicer is able to reasonably provide), containing all information necessary to
make the allocations and distributions required by the 1997-A Securitization
Trust Agreement in respect of the Collection Period immediately preceding such
Determination Date, including the information needed to prepare the statement
required by Section 3.03 of the 1997-A Securitization Trust Agreement. Any
Certificate Owner may obtain a copy of a Servicer's Certificate upon written
request.
(c) Upon the occurrence of any Monthly Payment Event Occurrence, the
Servicer shall give prompt written notice thereof to the Securitization Trustee,
specifying the cause or causes of such event.
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SECTION 5.02. ANNUAL ACCOUNTANTS' REPORTS.
Within 120 days after September 30 of each year (commencing with the year
ended September 30, 1998), the Servicer shall deliver to the Titling Trustee,
Securitization Trustee and the UTI Beneficiary (if TMCC is no longer both the
Servicer and the UTI Beneficiary) a report prepared by the Independent
Accountants of the Servicer concerning their review of the activities of the
Servicer during the preceding 12-month period ended September 30 (or other
applicable period in the case of the first such report or letter) to the effect
that such accountants have reviewed certain records and documents relating to
the servicing of the Contracts under this Agreement (using procedures specified
in such report or letter) and as a result of such review, and in connection with
such procedures, they are reporting such exceptions, if any, as shall be set
forth therein. Such report or letter shall also indicate that the firm is
independent with respect to the Transferor and the Servicer within the meaning
of the Code of Professional Ethics of the American Institute of Certified Public
Accountants.
SECTION 5.03. OTHER CERTIFICATES AND NOTICES FROM SERVICER.
(a) Within 120 days after September 30 of each calendar year (commencing
with the year ended September 30, 1998), the Servicer shall deliver an Officer's
Certificate to the Titling Trustee and the Securitization Trustee to the effect
that a review of the activities of the Servicer during the prior calendar year
(or since the commencement of the Titling Trust in the case of the first such
Officer's Certificate) has been made under the supervision of the officer
executing such Officer's Certificate with a view to determining whether during
such period the Servicer has performed and observed all of its obligations under
this 1997-A SUBI Servicing Supplement, and either (i) stating that, to the best
of his or her knowledge, no default by the Servicer under this 1997-A SUBI
Servicing Supplement has occurred and is continuing, or (ii) if such a default
has occurred and is continuing, specifying such default and the nature and
status thereof.
(b) In the event the rating of the Servicer's long-term unsecured debt
obligations falls below Baa1 by Moody's or BBB+ for Standard & Poor's as
determined by a Rating Agency, then on a quarterly basis, the Servicer shall
cause to be delivered to the 1997-A Securitization Trustee and each Rating
Agency an Officer's Certificate stating that neither the Titling Trust nor any
of its ERISA Affiliates: (i) maintains a Plan, which, as of its last valuation
date, has any unfunded current liability; (ii) anticipates that the value of the
assets of any Plan it maintains would not be sufficient to cover any Current
Liability; or (iii) is contemplating benefit improvements with respect to any
Plan then maintained by any such entity or the establishment of any new Plan,
either of which would cause any such entity to maintain a Plan with Unfunded
Current Liability.
SECTION 5.04. TAX RETURNS.
As contemplated by Section 6.12 of the 1997-A Securitization Trust
Agreement, the Servicer shall direct the 1997-A Securitization Trustee to
prepare or cause to be prepared, on behalf of the Transferor, any required
federal tax information returns (in a manner consistent with the treatment
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of the Investor Certificates as indebtedness). Also as contemplated by Section
6.12 of the 1997-A Securitization Trust Agreement, the Servicer shall timely
prepare or cause to be prepared any federal and state tax returns that may be
required with respect to the 1997-A Securitization Trust or the assets thereof
and shall timely deliver any such returns to the 1997-A Securitization Trustee
for signature.
ARTICLE SIX
DEFAULT
SECTION 6.01. EVENTS OF SERVICING TERMINATION; TERMINATION OF SERVICER AS
TO 1997-A SUBI PORTFOLIO.
(a) "Events of Servicing Termination" as used herein shall have the
meaning set forth in the attached Annex of Supplemental Definitions. Upon the
occurrence of an event or circumstance of force majeure, the Servicer shall not
be relieved from using all commercially reasonable efforts to perform its
obligations in a timely manner, and the Servicer shall provide to the Titling
Trustee, the 1997-A Securitization Trustee, the Transferor and the Investor
Certificateholders prompt notice of such failure or delay, together with a
description of its efforts to perform its obligations.
(b) If an Event of Servicing Termination shall have occurred and be
continuing, the 1997-A Securitization Trustee on behalf of the 1997-A
Securitization Trust, may remedy such Event of Servicing Termination or may, and
at the direction of the related Investor Certificateholders representing not
less than 51% of the aggregate Voting Interest, shall, by notice given to the
Servicer, terminate all or a portion of the rights and powers of the Servicer
under this 1997-A SUBI Servicing Supplement, including all or a portion of the
rights of the Servicer to receive the servicing compensation provided for in
Section 4.07 of this 1997-A SUBI Servicing Supplement with respect to all
periods following such termination. Upon any such termination, all rights,
powers, duties and responsibilities of the Servicer under this 1997-A SUBI
Servicing Supplement, whether with respect to the related Contract Documents,
the related Title Documents or Contract Records, the Servicing Fee or otherwise,
so terminated shall vest in and be assumed by any successor servicer appointed
by the Titling Trustee pursuant to a servicing agreement with the Titling
Trustee, on behalf of the Titling Trust, containing substantially the same
provisions as this 1997-A SUBI Servicing Supplement (including with respect to
the compensation of such successor servicer), and the Titling Trustee is hereby
irrevocably authorized and empowered to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, all documents and other instruments
(including any notices to Obligors deemed necessary or advisable by the Titling
Trustee), and to do or accomplish all other acts or things necessary or
appropriate to effect such vesting and assumption, including, without
limitation, directing some or all of the Obligors to remit Monthly Payments,
Prepayments and all other payments on or in respect of the 1997-A Contracts and
the 1997-A Leased Vehicles to an account or address designated by the Titling
Trustee or such new servicer. Further, in such event, the Servicer shall use
its commercially reasonable efforts to effect the orderly and efficient transfer
of the servicing of the affected 1997-A Contracts to the new servicer (including
transfer of the
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Security Deposits being held by the Servicer pursuant to Section 4.04 of this
1997-A SUBI Servicing Supplement), and as promptly as practicable, the Servicer
shall provide to the new servicer a current computer tape containing all
information from the Contract Records required for the proper servicing of the
affected Contracts, together with documentation containing any and all
information necessary for use of the tape.
(c) The Titling Trustee, on behalf of the Titling Trust, shall upon the
written direction of (i) if there is a UTI Pledge, the pledgee thereof or, if
not, the UTI Beneficiary, or (ii) the holder of the requisite percentage of any
SUBI (as set forth in the applicable SUBI Supplement), waive any default by the
Servicer in the performance of its obligations hereunder and its consequences
with regard to the Sub-Trust containing those Titling Trust Assets, as the case
may be. Upon any such waiver of a past default, such default shall cease to
exist, and any Event of Servicing Termination arising therefrom shall be deemed
to have been remedied for every purpose of this Servicing Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 6.02. NO EFFECT ON OTHER PARTIES.
Upon any termination of the rights and powers of the Servicer with respect
to the 1997-A SUBI Sub-Trust from time to time pursuant to Section 6.01 hereof,
or upon any appointment of a successor to the Servicer with respect to the
1997-A SUBI Sub-Trust, all the rights, powers, duties and obligations of the
Titling Trustee, the UTI Beneficiary and the Transferor under this 1997-A SUBI
Servicing Supplement, the 1997-A Securitization Trust Agreement, the 1997-A SUBI
Supplement, or any other Trust Document shall remain unaffected by such
termination or appointment and shall remain in full force and effect thereafter,
except as otherwise expressly provided herein or therein.
ARTICLE SEVEN
MISCELLANEOUS
SECTION 7.01. TERMINATION OF AGREEMENT.
(a) In connection with any purchase by the Transferor of the Investor
Certificateholders' interest in the corpus of the 1997-A Securitization Trust
pursuant to Section 7.02 of the 1997-A Securitization Trust Agreement, and the
Transferor's then succeeding to all of the interest in the 1997-A SUBI
represented, and if the UTI Beneficiary shall thereafter succeed to such
interest in the 1997-A SUBI, the Servicer, upon the direction of the UTI
Beneficiary as provided in Section 16.05 of the 1997-A SUBI Supplement, shall
reallocate all 1997-A Contracts, 1997-A Leased Vehicles and related 1997-A SUBI
Assets to the UTI Sub-Trust.
(b) Except as provided in this Section, the respective duties and
obligations of the Servicer and the Titling Trustee with respect to the 1997-A
SUBI shall terminate upon the termination of the 1997-A Securitization Trust
Agreement pursuant to Section 7.01 thereof. Upon
25
<PAGE>
such a termination, the Servicer shall pay over to the Titling Trustee or any
other Person entitled thereto all moneys held by the Servicer with respect to
the 1997-A SUBI Sub-Trust pursuant to this 1997-A SUBI Servicing Supplement.
SECTION 7.02. AMENDMENT.
(a) To the extent that any amendment or supplement deals with the 1997-A
SUBI Sub-Trust, this 1997-A SUBI Servicing Supplement may be amended from time
to time in a writing signed by the Titling Trustee, on behalf of the Titling
Trust, the Trust Agent and the Servicer, with the prior written consent of the
1997-A Securitization Trustee, which shall be given only in the circumstances
contemplated by Section 9.01 of the 1997-A Securitization Trust Agreement.
(b) The Servicer shall provide each Rating Agency that rated the Investor
Certificates prior notice of the content of any proposed amendment to this
1997-A SUBI Servicing Supplement, whether or not such amendment relates to the
1997-A SUBI or requires approval of any Rating Agency.
SECTION 7.03. GOVERNING LAW.
This 1997-A SUBI Servicing Supplement shall in all respects be governed by
and construed in accordance with the internal laws of the State of Delaware,
without reference to its conflicts of laws provisions, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
SECTION 7.04. NOTICES.
All demands, notices and communications hereunder shall be in writing and
shall be delivered or mailed by registered or certified first-class United
States mail, postage prepaid, hand delivery, any prepaid courier service, or by
telecopier, and addressed in each case as follows: (a) if to TMCC or the
Servicer (if the same as TMCC), at Toyota Motor Credit Corporation, 19001 South
Western Avenue, Torrance, California 90501, Attention: Treasury
Department--Corporate Treasury Manager (telecopier no. (310) 787-6194); and (b)
if to the Trustee, at 111 East Wacker Drive, Suite 3000, Chicago, Illinois 60601
(Telecopier No. (312) 228-9401), with a copy to the principal Trust Agent
designated by the Titling Trustee. The Servicer or the Titling Trustee may
change its address for notices hereunder by giving notice of such change to the
other such Persons. All notices and demands (y) shall be deemed to have been
given upon delivery or tender of delivery thereof to any officer or other duly
authorized recipient of the Person entitled to receive such notices and demands
at the address of such Person for notices hereunder, and (z) if given by the
Titling Trustee shall be deemed to have been given by all of the beneficiaries
of the Titling Trust.
26
<PAGE>
SECTION 7.05. SEVERABILITY.
If one or more of the provisions of this 1997-A SUBI Servicing Supplement
shall be for any reason whatever held invalid or unenforceable, such provisions
shall be deemed severable from the remaining covenants, agreements and
provisions of this 1997-A SUBI Servicing Supplement, and such invalidity or
unenforceability shall in no way affect the validity or enforceability of such
remaining covenants, agreements and provisions, or the rights of any parties
hereto. To the extent permitted by law, the parties hereto waive any provision
of law that renders any provision of this 1997-A SUBI Servicing Supplement
invalid or unenforceable in any respect.
SECTION 7.06. INSPECTION AND AUDIT RIGHTS.
The Servicer agrees that, on reasonable prior notice, it will permit any
representative or designee of the Titling Trustee, on behalf of the Titling
Trust, during the normal business hours of the Servicer, to examine all books of
account, records, reports and other papers of the Servicer relating to the
Titling Trust Assets, to make copies and extracts therefrom, to cause such books
to be audited by Independent Accountants selected by the Titling Trustee, and to
discuss the affairs, finances and accounts relating to the Titling Trust Assets
with its officers, employees and Independent Accountants (and by this provision
the Servicer hereby authorizes such Independent Accountants to discuss with such
representatives such affairs, finances and accounts), all at such reasonable
times and as often as may be reasonably requested. Such rights shall include,
but shall not be limited to, any off-site storage facilities at which any data
(including, without limitation, computerized records), together with all
operating software and appropriate documentation, may be held. The Titling
Trustee agrees to keep confidential all the confidential information of the
Servicer acquired during any such examination as if such information were its
own confidential information, except to the extent necessary for the purposes of
this 1997-A SUBI Servicing Supplement. The expenses incident to the exercise by
the Titling Trustee of any right under this Section shall be reimbursable by the
Servicer.
SECTION 7.07. ARTICLE AND SECTION HEADINGS.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
SECTION 7.08. EXECUTION IN COUNTERPARTS.
This 1997-A SUBI Servicing Supplement may be executed in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original, but all of which counterparts shall together constitute but one and
the same instrument.
27
<PAGE>
SECTION 7.09. RIGHTS CUMULATIVE.
All rights and remedies from time to time conferred upon or reserved to the
Titling Trustee, on behalf of the Titling Trust, the Servicer or the 1997-A
Securitization Trustee or to any or all of the foregoing are cumulative, and
none is intended to be exclusive of another. No delay or omission in insisting
upon the strict observance or performance of any provision of this 1997-A SUBI
Servicing Supplement, or in exercising any right or remedy, shall be construed
as a waiver or relinquishment of such provision, nor shall it impair such right
or remedy. Every right and remedy may be exercised from time to time and as
often as deemed expedient.
SECTION 7.10. FURTHER ASSURANCES.
Each party will do such acts, and execute and deliver to any other party
such additional documents or instruments, as may be reasonably requested in
order to effect the purposes of this 1997-A SUBI Servicing Supplement and to
better assure and confirm unto the requesting party its rights, powers and
remedies hereunder.
SECTION 7.11. THIRD-PARTY BENEFICIARIES.
This 1997-A SUBI Servicing Supplement, insofar as it relates to the 1997-A
SUBI Sub-Trust, will inure to the benefit of and be binding upon the parties
hereto, their respective successors and permitted assigns, the 1997-A
Securitization Trustee, the Titling Trustee (on behalf of the Titling Trust),
and each of the holders of any legal or beneficial interest in the 1997-A SUBI
Certificates (including without limitation the 1997-A Securitization Trustee and
the Certificateholders), who shall be considered to be third-party beneficiaries
hereof. Except as otherwise provided in this 1997-A SUBI Servicing Supplement,
no other Person will have any right or obligation hereunder.
28
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers duly authorized as of the day and
year first above written.
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ George Borst
----------------------------------
Name: George Borst
Title: Senior Vice President and General
Manager
TOYOTA LEASE TRUST
By: TMTT, INC.,
as trustee of TOYOTA LEASE TRUST
By: /s/ Steven E. Charles
----------------------------------
Name: Steven E. Charles
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trust Agent
By: /s/ Steven E. Charles
----------------------------------
Name: Steven E. Charles
Title: Vice President
Acknowledged and Agreed:
TOYOTA AUTO LEASE TRUST 1997-A
By: U.S. BANK NATIONAL ASSOCIATION,
as 1997-A Securitization Trustee
By: /s/ Steven E. Charles
----------------------------------
Name: Steven E. Charles
Title: Vice President
<PAGE>
EXHIBIT A
SCHEDULE OF 1997-A CONTRACTS AND
1997-A LEASED VEHICLES AS OF THE INITIAL CUTOFF DATE
[Omitted. Copies on file with the Servicer, the Titling Trustee and the
1997-A Securitization Trustee.]
A-1
<PAGE>
EXHIBIT B
FORM OF SERVICER'S CERTIFICATE
B-1
<PAGE>
EXHIBIT C
FORM OF POWER OF ATTORNEY
C-1
<PAGE>
SCHEDULE I
List of Branch Offices
C-2
<PAGE>
Execution Copy
1997-A SUBI CERTIFICATE PURCHASE AND SALE AGREEMENT
THIS 1997-A SUBI CERTIFICATE PURCHASE AND SALE AGREEMENT (the "Agreement")
is dated as of September 1, 1997, by and between TOYOTA MOTOR CREDIT
CORPORATION, a California corporation ("TMCC"), and TOYOTA LEASING, INC., a
California corporation ("TLI").
A. TMCC, TMTT Inc., a Delaware corporation (the "Titling Trustee"), and,
for certain limited purposes set forth therein, U.S. Bank National Association,
a national banking association) ("U.S. Bank"), have entered into an Amended and
Restated Trust and Servicing Agreement dated as of October 1, 1996 (the "Titling
Trust Agreement") pursuant to which Toyota Lease Trust, a Delaware business
trust (the "Titling Trust"), was formed for the purpose of taking assignments
and conveyances of, holding in trust and dealing in various Titling Trust Assets
(as defined in the Titling Trust Agreement) in accordance with the Titling Trust
Agreement.
B. Concurrently herewith, and as contemplated by the terms of the Titling
Trust Agreement, TMCC, the Titling Trustee and U.S. Bank have entered into a
1997-A SUBI Supplement to Amended and Restated Trust and Servicing Agreement
dated as of September 24, 1997 (the 1997-A SUBI Supplement") pursuant to which
the Titling Trust at the direction of TMCC, will create and issue to TLI a
special unit of beneficial interest in the Titling Trust, or "SUBI" (as defined
in the Titling Trust Agreement) (such SUBI, the "1997-A SUBI"). The
beneficiaries of the 1997-A SUBI generally will be entitled to the net cash flow
arising from, but only from, the related SUBI Portfolio (as defined in the
Titling Trust Agreement) (the "1997-A SUBI Portfolio"). The 1997-A SUBI will be
evidenced by one 1997-A SUBI Certificate (as defined in the Titling Trust
Agreement) representing 100% of the beneficial interest in the 1997-A SUBI (the
"1997-A SUBI Certificate"), all as set forth in the Titling Trust Agreement and
the 1997-A SUBI Supplement.
C. TMCC and TLI desire to enter into this Agreement to provide for the
sale by TMCC to TLI, without recourse, of all of TMCC's right, title and
interest in and to the 1997-A SUBI and the 1997-A SUBI Certificate.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
<PAGE>
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS.
For all purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, (a) unless otherwise defined herein,
all capitalized terms used herein shall have the meanings attributed to them in
the Annex of Definitions or the Annex of Supplemental Definitions, as
applicable, attached to the 1997-A SUBI Supplement (b) the capitalized terms
expressly defined in this Agreement have the meanings assigned to them in this
Agreement and include (i) all genders and (ii) the plural as well as the
singular, (c) all references to words such as "herein", "hereof" and the like
shall refer to this Agreement as a whole and not to any particular article or
section within this Agreement, (d) the term "include" and all variations thereon
shall mean "include without limitation", and (e) the term "or" shall include
"and/or".
SECTION 1.02. ARTICLE AND SECTION REFERENCES.
Except as otherwise specified herein, all article and section references
shall be to Articles and Sections in this Agreement.
ARTICLE TWO
PURCHASE AND SALE OF 1997-A SUBI
SECTION 2.01. SALE OF 1997-A SUBI.
In consideration of TLI's delivery to, or upon the order of, TMCC of (i)
cash in the amount of $1,169,780,477.65 representing the cash proceeds from the
sale of the Investor Certificates net of certain expenses and (ii)
$90,375,975.89 evidenced by a non-recourse promissory subordinated note, TMCC
does hereby absolutely sell, assign and otherwise convey to TLI, without
recourse, and TLI does hereby purchase and acquire, as of the date set forth
above:
(i) all right, title and interest in and to the 1997-A SUBI
and the 1997-A SUBI Certificate and all monies due thereon and paid
thereon or in respect thereof;
(ii) the right to realize upon any property that underlies or
may be deemed to secure the 1997-A SUBI; and
2
<PAGE>
(iii) all proceeds of the foregoing.
TMCC also does hereby grant to TLI a security interest in all of the
foregoing and TLI shall have all the rights, powers and privileges thereto and
therein of a secured party under the UCC.
SECTION 2.02. ACCEPTANCE BY TLI.
TLI agrees to comply with all covenants and restrictions applicable to an
owner of the 1997-A SUBI and 1997-A SUBI Certificate, whether set forth therein,
in the Titling Trust Agreement, the 1997-A SUBI Supplement or otherwise, and
assumes all obligations and liabilities, if any associated therewith.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.01. AMENDMENT.
This Agreement may be amended from time to time in a writing signed by the
parties hereto, with the prior written consent of the 1997-A Securitization
Trustee, which shall be given only in the circumstances contemplated by Section
9.01 of the 1997-A Securitization Trust Agreement.
SECTION 3.02. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE
PRINCIPLES OF CONFLICT OF LAWS.
SECTION 3.03. SEVERABILITY.
If one or more of the provisions of this Agreement shall be for any reason
whatever held invalid or unenforceable, such provisions shall be deemed
severable from the remaining covenants, agreements and provisions of this
Agreement, and such invalidity or unenforceability shall in no way affect the
validity or enforceability of such remaining covenants, agreements and
provisions, or the rights of any parties hereto. To the extent permitted by
law, the parties hereto waive any provision of law that renders any provision of
this Agreement invalid or unenforceable in any respect.
3
<PAGE>
SECTION 3.04. BINDING EFFECT.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and permitted assigns of the parties
hereto.
SECTION 3.05. ARTICLE AND SECTION HEADINGS.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
SECTION 3.06. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
so executed and delivered shall be deemed to be an original, but all of which
counterparts shall together constitute but one and the same instrument.
SECTION 3.07. FURTHER ASSURANCES.
Each party will do such acts, and execute and deliver to any other party
such additional documents or instruments as may be reasonably requested in order
to effect the purposes of this Agreement and to better assure and confirm unto
the requesting party its rights, powers and remedies hereunder.
SECTION 3.08. THIRD-PARTY BENEFICIARIES.
This Agreement will inure to the benefit of and be binding upon each
subsequent holder of any legal or beneficial interest in the 1997-A SUBI
Certificate (including without limitation the 1997-A Securitization Trust and
the 1997-A SUBI Certificateholders), who shall be considered to be third-party
beneficiaries hereof. Except as otherwise provided in this Agreement, no other
Person will have any right or obligation hereunder.
SECTION 3.09. NO PETITION.
TLI, as transferee of the 1997-A SUBI Certificate covenants and agrees that
prior to the date which is one year and one day after the date upon which all
obligations under each Securitized Financing has been paid in full, it will not
institute against, or join any other Person in instituting against, TMCC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceedings under any federal or state bankruptcy or similar law. This
Section shall survive the termination of this Agreement.
[SIGNATURES ON NEXT PAGE]
4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers duly authorized as of the day and
year first above written.
TOYOTA MOTOR CREDIT CORPORATION
By:
-----------------------------
Name:
Title:
TOYOTA LEASING, INC.
By:
-----------------------------
Name:
Title:
5
<PAGE>
EXECUTION COPY
TOYOTA MOTOR CREDIT CORPORATION
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee
---------------------------
Indenture
Dated as of September 1, 1997
---------------------------
$1,600,000,000
TMCC Demand Notes
<PAGE>
CROSS-REFERENCE TABLE
(not a part of this Indenture)
TIA Indenture
Section Section
- ------- ----------
(Section) 310(a) (1). . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a) (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a) (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08
7.10
11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(Section) 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(Section) 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(Section) 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(Section) 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 4.09
4.10
11.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
11.02
(c) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.09(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(Section) 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
TIA Indenture
i
<PAGE>
Section Section
- ------- ---------
(Section) 316(a) (last sentence). . . . . . . . . . . . . . . . . . 2.09
(a) (1) (A) . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a) (1) (B) . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.04
(Section) 317(a) (1). . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
(Section) 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
- ---------
N.A. means not applicable
ii
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
Definitions and Incorporation by Reference
Section 1.01. Definitions.. . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Incorporation by Reference of TIA.. . . . . . . . . . . . . 1
Section 1.03. Rules of Construction.. . . . . . . . . . . . . . . . . . . 2
ARTICLE TWO
The Securities
Section 2.01. Form; Title and Terms.. . . . . . . . . . . . . . . . . . . 2
Section 2.02. Execution and Authentication. . . . . . . . . . . . . . . . 3
Section 2.03. Securities Register.. . . . . . . . . . . . . . . . . . . . 4
Section 2.04. Paying Agent to Hold Money in Trust.. . . . . . . . . . . . 5
Section 2.05. Securityholder Lists. . . . . . . . . . . . . . . . . . . . 5
Section 2.06. Transfer and Exchange.. . . . . . . . . . . . . . . . . . . 5
Section 2.07. Replacement Securities. . . . . . . . . . . . . . . . . . . 6
Section 2.08. Outstanding Securities. . . . . . . . . . . . . . . . . . . 6
Section 2.09. Treasury Securities Not Outstanding.. . . . . . . . . . . . 7
Section 2.10. Temporary Securities. . . . . . . . . . . . . . . . . . . . 7
Section 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.12. Defaulted Interest. . . . . . . . . . . . . . . . . . . . . 8
Section 2.13. Persons Deemed Owners.. . . . . . . . . . . . . . . . . . . 9
Section 2.14. Computation of Interest.. . . . . . . . . . . . . . . . . . 9
ARTICLE THREE
Redemption
Section 3.01. Redemption. . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE FOUR
Covenants
Section 4.01. Payment of Securities.. . . . . . . . . . . . . . . . . . . 9
Section 4.02. Maintenance of Office or Agency.. . . . . . . . . . . . . . 10
Section 4.03. Company Statement as to Compliance; Notice of
Certain Defaults. . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE FIVE
Consolidations and Mergers, Etc.
Section 5.01. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.02. Successor Person Substituted for Company. . . . . . . . . . 11
i
<PAGE>
ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01. Events of Default.. . . . . . . . . . . . . . . . . . . . 12
Section 6.02. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . . . . . . . 13
Section 6.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . . . . 14
Section 6.04. Trustee May File Proofs of Claim. . . . . . . . . . . . . 14
Section 6.05. Trustee May Enforce Claims without
Possession of Securities. . . . . . . . . . . . . . . . . 15
Section 6.06. Application of Money Collected. . . . . . . . . . . . . . 15
Section 6.07. Limitation on Suits . . . . . . . . . . . . . . . . . . . 16
Section 6.08. Unconditional Right of Holders to Receive
Principal and Interest. . . . . . . . . . . . . . . . . . 16
Section 6.09. Restoration of Rights and Remedies. . . . . . . . . . . . 17
Section 6.10. Rights and Remedies Cumulative. . . . . . . . . . . . . . 17
Section 6.11. Delay or Omission Not Waiver. . . . . . . . . . . . . . . 17
Section 6.12. Control by Holders of Securities. . . . . . . . . . . . . 17
Section 6.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . 18
Section 6.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . 18
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee.. . . . . . . . . . . . . . . . . . . . 18
Section 7.02. Rights of Trustee.. . . . . . . . . . . . . . . . . . . . 20
Section 7.03. Individual Rights of Trustee. . . . . . . . . . . . . . . 20
Section 7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . 20
Section 7.05. Notice of Defaults. . . . . . . . . . . . . . . . . . . . 20
Section 7.06. Reports by Trustee to Holders.. . . . . . . . . . . . . . 21
Section 7.07. Compensation and Indemnity. . . . . . . . . . . . . . . . 21
Section 7.08. Replacement of Trustee. . . . . . . . . . . . . . . . . . 22
Section 7.09. Successor Trustee by Merger, Etc. . . . . . . . . . . . . 23
Section 7.10. Eligibility; Disqualification.. . . . . . . . . . . . . . 23
Section 7.11. Preferential Collection of Claims Against Company . . . . 23
ARTICLE EIGHT
DEFEASANCE; SATISFACTION AND DISCHARGE
Section 8.01. Defeasance of the Indenture.. . . . . . . . . . . . . . . 23
Section 8.02. Satisfaction and Discharge of the Indenture.. . . . . . . 24
Section 8.03. Survival of Certain Obligations.. . . . . . . . . . . . . 25
Section 8.04. Acknowledgment of Discharge by Trustee. . . . . . . . . . 25
Section 8.05. Application of Trust Money. . . . . . . . . . . . . . . . 26
Section 8.06. Repayment to the Company. . . . . . . . . . . . . . . . . 26
Section 8.07. Reinstatement.. . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
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Section 9.01. Without Consent of Holders. . . . . . . . . . . . . . . . 27
Section 9.02. With Consent of Holders.. . . . . . . . . . . . . . . . . 28
Section 9.03. Compliance with TIA.. . . . . . . . . . . . . . . . . . . 29
Section 9.04. Revocation and Effect of Consents.. . . . . . . . . . . . 29
Section 9.05. Notation on or Exchange of Securities.. . . . . . . . . . 29
Section 9.06. Trustee to Sign Amendments, Etc.. . . . . . . . . . . . . 30
Section 9.07. Effect of Supplemental Indentures.. . . . . . . . . . . . 30
ARTICLE TEN
MEETINGS OF AND ACTIONS BY SECURITYHOLDERS
Section 10.01. Purposes for Which Meetings may be Called. . . . . . . . 30
Section 10.02. Manner of Calling Meetings.. . . . . . . . . . . . . . . 31
Section 10.03. Call of Meetings by Company or Holders.. . . . . . . . . 31
Section 10.04. Who May Attend and Vote at Meetings. . . . . . . . . . . 31
Section 10.05. Regulations may be Made by Trustee; Conduct of the
Meeting; Voting Rights; Adjournment. . . . . . . . . . 32
Section 10.06. Voting at the Meeting and Record to be Kept. . . . . . . 32
Section 10.07. Exercise of Rights of Trustee or Securityholders
May Not be Hindered or Delayed by Call of Meeting. . . 33
Section 10.08. Evidence of Action Taken by Securityholders. . . . . . . 33
Section 10.09. Proof of Execution of Instruments and of Holding
of Securities. . . . . . . . . . . . . . . . . . . . . 34
Section 10.10. Right of Revocation of Action Taken. . . . . . . . . . . 34
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. TIA Controls.. . . . . . . . . . . . . . . . . . . . . . 34
Section 11.02. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 11.03. Communications by Holders with Other Holders.. . . . . . 35
Section 11.04. Certificate and Opinion as to Conditions Precedent.. . . 35
Section 11.05. Statements Required in Certificate or Opinion. . . . . . 36
Section 11.06. Rules by Trustee, Paying Agent, Registrar. . . . . . . . 36
Section 11.07. Legal Holidays.. . . . . . . . . . . . . . . . . . . . . 36
Section 11.08. Governing Law. . . . . . . . . . . . . . . . . . . . . . 37
Section 11.09. No Adverse Interpretation of Other Agreements. . . . . . 37
Section 11.10. No Recourse Against Others . . . . . . . . . . . . . . . 37
Section 11.11. Successors . . . . . . . . . . . . . . . . . . . . . . . 37
Section 11.12. Duplicate Originals. . . . . . . . . . . . . . . . . . . 37
Section 11.13. Severability . . . . . . . . . . . . . . . . . . . . . . 37
Section 11.14. Headings and Table of Contents . . . . . . . . . . . . . 37
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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EXHIBITS
Annex I -- Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . I-1
Exhibit A -- Form of Security . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B -- Form of Note . . . . . . . . . . . . . . . . . . . . . . . . B-1
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INDENTURE dated as of September 1, 1997 between Toyota Motor Credit
Corporation, a California corporation (the "Company"), and U.S. Bank National
Association, a national banking association, as trustee (the "Trustee").
RECITALS
A. The Company is duly authorized to execute and deliver this Indenture
and to provide for the issuance by the Company of the Securities as provided
herein.
B. All things have been done that are necessary to make the Securities,
when executed by the Company and authenticated and delivered by the Trustee
hereunder, the valid obligations of the Company in accordance with the terms of
this Indenture.
For and in consideration of the premises and the purchase of the Securities
by the Holders, each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
All capitalized terms used in this Indenture and not defined elsewhere
herein shall have the meanings assigned to them in Annex I, which is hereby
incorporated by reference in and made a part of this Indenture.
SECTION 1.02. INCORPORATION BY REFERENCE OF TIA.
Wherever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Commission.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
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"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) unless otherwise expressly provided in this Indenture, an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP and all financial computations required under this
Indenture shall be made in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(7) "including" shall be deemed to mean "including, without
limitation."
ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORM; TITLE AND TERMS.
The Securities and the Trustee's certificate of authentication thereon
shall be substantially in the forms set forth in Exhibit A hereto. The
Securities may have notations, legends or endorsements required by law or stock
exchange rules. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities shall constitute a
part of, and are hereby incorporated by reference in and made a part of, this
Indenture and to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to their incorporation
herein.
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The Securities shall be known and designated as the "TMCC Demand Notes" of
the Company. The aggregate original principal amount of Securities that may be
authenticated and delivered under this Indenture is limited to $1,600,000,000,
except as otherwise provided in Sections 2.06, 2.07, 2.10 and 9.05. References
herein and in the forms of Securities to "Security" or "Securities" shall
include references to the principal amounts issued thereunder as evidenced by
the appropriate notation on the Schedules.
The Securities shall be issuable only in registered form, without coupons.
The minimum denominations of the Securities will be $0.01.
Interest on the Securities which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date, shall, except as otherwise provided
in Section 2.12, be paid to the Persons in whose names the Securities (or one or
more Predecessor Securities) are registered at the close of business on the
Record Date next preceding such Interest Payment Date. At the option of the
Company, payment of interest on the Securities due on any Interest Payment Date,
falling after a Record Date for the payment of interest on the Securities and on
or before the related Interest Payment Date, may be paid by check mailed to the
address of the Persons entitled thereto as they shall appear in the Securities
register.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
The Securities shall be executed on behalf of the Company by an Officer of
the Company. Any such signature may be by facsimile.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
All of the Securities to be issued under this Indenture, and all of the
principal amounts to be evidenced by the Securities need not be issued at the
same time and may be issued from time to time at the order of the Company as
herein provided for. The Securities and the principal amount in respect of the
Securities to be issued hereunder shall all be of the same series known as the
"TMCC Demand Notes", but need not have the same issue date, Stated Maturity
Date, Required Rate, or Interest Payment Date. It is envisioned that five
certificates representing the Securities shall be issued hereunder, as follows:
(1) one certificate representing Interest Collections in a maximum aggregate
principal amount equal to $393,400,000; (2) one certificate representing
Principal Collections and allocable to the Class A-1 Certificates in a maximum
aggregate principal amount equal to $410,000,000; (3) one certificate
representing Principal Collections and allocable to the Class A-2 Certificates
in a maximum aggregate principal amount equal to $650,000,000; (4) one
certificate representing Principal Collections and allocable to the Class A-3
Certificates in a maximum aggregate principal amount equal to $72,750,000; and
(5) one certificate representing Principal Collections and allocable to the
Class B Certificates in a maximum aggregate principal amount equal to
$73,850,000; provided that nothing herein shall limit the number of certificates
representing the Securities that may be issued hereunder. Each certificate
representing a Security will have a Schedule attached thereto indicating: (i)
the amount of the increase in the principal amount outstanding under such
Security and the date on which each principal amount under such Security was
first issued, (ii) the Stated Maturity Date for such principal amount, (iii) the
Required
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Rate applicable to such principal amount, (iv) the amount of the decrease in the
principal amount outstanding under such Security and the date on which such
principal amount under such Security was paid, (v) the amount of the interest
paid on such Security and the date on which such interest was paid, and (vi)
the aggregate principal amount outstanding with respect to such certificate
representing a Security.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security, and an entry on the Schedule to
any such Security shall not be valid until the Trustee manually signs the space
provided for such entry as authentication of such increase or decrease in
outstanding principal amount of such Security. Such signature shall be
conclusive evidence that the Security and such entry has been authenticated
under this Indenture.
The Trustee shall authenticate Securities for original issue in the maximum
aggregate principal amount as aforesaid, upon a written order of the Company
signed by an Officer of the Company. The Trustee shall authenticate the
Schedule attached to a Security to indicate the issuance of an additional
principal amount of the Securities, upon either (i) a written order of the
Company signed by an Officer of the Company, or (ii) if an Officer's Certificate
has previously been delivered to the Trustee by the Company specifying the names
and titles of officers, employees or agents of the Company eligible to give such
an order, the order of any such officer, employee or agent of the Company, which
order may be by telephone (confirmed in writing) or by facsimile. Any such
order shall specify the principal amount in respect of the Securities to be
issued and to which certificate such amount shall be allocable, the applicable
Required Rate, the Stated Maturity Date and the date on which such issue of
principal in respect of the Securities is to be authenticated.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities and the Schedules attached thereto. Unless otherwise
provided in the appointment, an authenticating agent may authenticate Securities
and the Schedules attached thereto whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate of the Company.
SECTION 2.03. SECURITIES REGISTER.
The Company shall keep or cause to be kept at the Corporate Trust Office or
at any office or agency of the Company where Securities may be presented for
registration of transfer or for exchange as provided in Section 4.02 a register
in which, subject to such reasonable regulations as the Company may prescribe,
the Company shall provide for the registration of Securities and registration of
transfers and exchanges of Securities as in this Article provided. The
Registrar shall keep the register of the Securities and of their transfer and
exchange.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of the Persons
entitled thereto, without interest, all money held by such Paying Agent for the
payment of principal of, premium, if any, and interest on the Securities
(whether such money has been paid to it by the Company or any other obligor on
the Securities), and shall notify the Trustee of any Default by the Company (or
any other
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obligor on the Securities) in making any such payment. If the Company or a
Subsidiary of the Company acts as Paying Agent, it shall segregate the money and
hold it as a separate trust fund. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and account for any funds
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
pay all money held by it to the Trustee and to account for any funds disbursed.
Upon payment of all funds held by it to the Trustee, the Paying Agent shall have
no further liability for such money. As provided in Section 6.04 hereof, in any
bankruptcy, insolvency, reorganization or other similar proceeding relative to
the Company or any other obligor on the Securities, the Trustee shall serve as
Paying Agent for the Securities; provided that the foregoing shall not relieve
the Company of its obligations under Section 4.02.
SECTION 2.05. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list of the names and addresses of the
Securityholders furnished to it or maintained by it in its capacity as Paying
Agent and Registrar. If and so long as the Trustee is not the Registrar, in
accordance with Section 312(a) of the TIA, the Company shall furnish or cause to
be furnished to the Trustee semiannually not less than 30 days nor more than 60
days before each Interest Payment Date and at such times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders including an
identification of the Securities and the aggregate amount thereof.
SECTION 2.06. TRANSFER AND EXCHANGE.
When Securities are presented to the Registrar or a co-Registrar with a
request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities in other authorized
denominations, the Registrar or co-Registrar shall register the transfer or make
the exchange if its reasonable requirements for such transactions (which may
include a requirement that any Security presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Registrar and the
Trustee duly executed by the Holder thereof or his attorney duly authorized in
writing) are met. To permit registration of transfers and exchanges as provided
herein, the Company shall execute and the Trustee shall authenticate and deliver
Securities at the Registrar's or a co-Registrar's request. All Securities
issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company evidencing the same debt and entitling the
Holders thereof to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange. No service charge
shall be made to a Holder for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith, other than in the
case of exchanges under Sections 2.10 and 9.05 not involving any transfer.
SECTION 2.07. REPLACEMENT SECURITIES.
If a defaced or mutilated Security is surrendered to the Trustee or if the
Holder of a Security presents evidence to the reasonable satisfaction of the
Trustee that the Security has been lost,
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destroyed or stolen the Company shall execute and the Trustee shall authenticate
a replacement Security if the Company's and the Trustee's reasonable
requirements are met. The Trustee or the Company may require an indemnity bond,
sufficient in the reasonable judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Security is replaced. The Company and the Trustee may charge
such Holder for their reasonable expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company,
whether or not the apparently destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and such replacement Security shall be entitled to
the benefits of and subject to the limitations of rights set forth in this
Indenture.
The provisions of this Section, as amended or supplemented pursuant to this
Indenture with respect to particular Securities or generally, shall be exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 2.08. OUTSTANDING SECURITIES.
Securities outstanding at any time under this Indenture are all Securities
that have been theretofore authenticated and delivered under this Indenture,
except (a) those cancelled by the Trustee, (b) those delivered to the Trustee
for cancellation, (c) those in exchange for or in lieu of which other Securities
have been authenticated and delivered under this Indenture and (d) those
described in this Section as not outstanding.
Except as provided in Section 2.09 hereof, a Security does not cease to be
outstanding because the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor holds the Security.
If a Security is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If on the Stated Maturity of the Securities, the Paying Agent (other than
the Company or a Subsidiary) holds U.S. Legal Tender sufficient to pay all of
the principal, premium, if any, and interest due on the Securities payable on
that date, then on and after that date such Securities shall cease to be
outstanding and interest on them shall cease to accrue.
SECTION 2.09. TREASURY SECURITIES NOT OUTSTANDING.
In determining whether the Holders of the required principal amount of
outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether a quorum is present at a meeting
of Holders of Securities, Securities owned by the Company or an other obligor on
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization,
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direction, notice, consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which a Trust Officer knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or an Affiliate of the Company or of such other obligor. The Trustee
may require an Officer's Certificate listing Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
SECTION 2.10. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company shall
execute and, upon the written order of the Company signed by two Officers or by
an Officer and either an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall execute and the
Trustee shall authenticate definitive Securities which shall be exchangeable for
temporary Securities upon surrender of the temporary Securities at the office or
agency of the Company designated for such purpose pursuant to Section 4.02 for
the purpose of exchanges of Securities without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized
denominations. Until such exchange, temporary Securities shall be entitled to
the same rights, benefits and privileges as definitive Securities and shall be
subject to the same limitation of rights as definitive Securities.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, each co-Registrar and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for transfer, exchange
or payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation.
Subject to Section 2.07 hereof, the Company may not execute new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation.
All cancelled Securities held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company, unless by a written
order signed by an Officer of the Company shall direct that cancelled Securities
be returned to it.
SECTION 2.12. DEFAULTED INTEREST.
If the Company fails to pay any principal of, premium, if any, or interest
on any Security on the due date therefor (whether upon acceleration, at Stated
Maturity or otherwise), the Company shall pay interest thereon, at the rate per
annum borne by the Securities, to the extent permitted by law. Any interest on
any Security which shall be payable, but shall not be punctually paid or duly
provided for, on any Interest Payment Date for such Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Record Date by virtue of
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having been such Holder; and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Person in whose name such Security (or a Predecessor Security
thereof) shall be registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on such Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of U.S. Legal Tender equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such U.S. Legal Tender when
so deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon, the Trustee
shall fix a "Special Record Date" for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class, postage prepaid, to each Holder of
Securities at his address as it appears in the Security register not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the Person in whose name such Security (or a Predecessor Security thereof)
shall be registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer or in exchange for
or in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 2.13. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any Agent may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payments of principal of, premium, if any, and, subject to Section
2.12, interest on such Security and for all other purposes whatsoever (whether
or not such Security is overdue), and neither the Company nor the Trustee or any
other Agent shall be affected by notice to the contrary.
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SECTION 2.14. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
ARTICLE THREE
REDEMPTION
SECTION 3.01. REDEMPTION.
The Securities may not be redeemed at the option of the Company, in whole
or in part at any time prior to their respective Stated Maturities.
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company will punctually pay the principal of and premium, if any, and
interest on the Securities on the dates and in the manner provided in the
Securities and this Indenture.
The Company will, on or prior to the day when any principal of or premium
or interest on any of the Securities becomes payable, whether at the Stated
Maturity Date thereof, by demand for payment by any holder of a security
following the occurrence of a Monthly Payment Event Occurrence in the form of
Exhibit B hereto delivered to the Trustee, surrender for repurchase, declaration
of acceleration or otherwise, deposit with the Paying Agent (or, if the Company
or a Subsidiary of the Company is acting as Paying Agent, segregate and hold in
trust), in immediately available funds, no later than 12:00 noon (New York City
time), a sum in U.S. Legal Tender sufficient to pay the principal, premium and
interest becoming due. Such sum shall be held in trust for the benefit of the
Holders entitled to such payment and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of its action or failure so to
act, and of the amount of each such payment made to each Paying Agent.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in Chicago, Illinois, an office or agency where
Securities may be presented or surrendered for payment ("Paying Agent"), where
Securities may be surrendered for registration of transfer or exchange
("Registrar") and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. Unless otherwise expressly
provided herein, the Trustee, the Company or a Subsidiary of the Company may act
as Registrar, co-Registrar or Paying Agent. The Company shall give prompt
written notice to the Trustee and the Holders of the location, and any change in
the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee
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with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
The Company initially appoints the Trustee, as the initial Registrar and
Paying Agent in Chicago, Illinois, and designates such agent as an agency where
notices and demands to or upon the Company in respect to the Securities and this
Indenture may be served.
SECTION 4.03. COMPANY STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN
DEFAULTS.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement (which need not be contained in or
accompanied by an Officer's Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, stating that
(a) a review of the activities of the Company during such year and of its
performance under this Indenture has been made under his or her supervision, and
(b) to the best of his or her knowledge, based on such review, (a) the
Company has complied with all the conditions and covenants imposed on it under
this Indenture throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying each such default
known to him or her and the nature and status thereof, and (b) no event has
occurred and is continuing which is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and status
thereof.
(c) The Company shall deliver to the Trustee, within five days after the
occurrence thereof, written notice of any event which after notice or lapse of
time or both would become an Event of Default pursuant to clause (c) of Section
6.01.
ARTICLE FIVE
CONSOLIDATIONS AND MERGERS, ETC.
SECTION 5.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other Person
or Persons (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any conveyance, transfer or lease
of the property of the Company as an entirety or substantially as an entirety,
to any other Person (whether or not affiliated with the Company); provided,
however, that:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the entity formed by such consolidation or into which
the Company is merged or the Person which acquires by
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conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a Corporation organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee) supplemental hereto,
executed by the successor Person and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of,
any premium and interest on all the Securities and the performance of every
other covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no event which,
after notice or lapse of time, would become an Event of Default, shall have
occurred and be continuing;
(3) either the Company or the successor Person shall have delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel, stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
SECTION 5.02. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY.
Upon any consolidation or merger or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 5.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein;
and thereafter, except in the case of a lease to another Person, the predecessor
Person shall be released from all obligations and covenants under this Indenture
and the Securities.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
The occurrence of any one of the following events for any reason
whatsoever, and whether voluntary, involuntary or by operation of law, shall
constitute an "Event of Default":
(a) default in the payment of any interest on any Security when such
interest becomes due and payable, and continuance of such default for a
period of 30 days; provided, however, that upon the demand for payment by
any holder of a Security following the occurrence of a Monthly Payment
Event Occurrence in accordance with the terms of this Indenture and the
Security, no such cure period shall apply and interest due on any
Security shall become immediately due and payable; or
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(b) default in the payment of the principal of and any premium on
any Security of such series when it becomes due and payable at its
Maturity; or
(c) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or the Securities, and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(d) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company in an
involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company to be insolvent, or
approving a petition seeking reorganization, arrangement, adjustment or
composition of the Company and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of the
Company or of any substantial part of the property of the Company, or
ordering the winding up or liquidation of the affairs of the Company; or
(e) the commencement by the Company of a voluntary proceeding under
any applicable bankruptcy, insolvency, reorganization or other similar law or of
a voluntary proceeding seeking to be adjudicated insolvent or the consent by the
Company to the entry of a decree or order for relief in an involuntary
proceeding under any applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any insolvency proceedings against it, or
the filing by the Company of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by the Company
to the filing of such petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee or similar official of the
Company or any substantial part of the property of the Company or the making by
the Company of an assignment for the benefit of creditors, or the taking of
corporate action by the Company in furtherance of any such action.
SECTION 6.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities occurs and is continuing,
then the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the
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Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal amount shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of not less than a majority in principal amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay:
(A) all overdue installments of interest on all Securities;
(B) the principal of any Securities which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate
borne by or provided for in such Securities;
(C) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest at the rate borne by or provided for
in such Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities, other than the
non-payment of the principal of, and interest on Securities which shall have
become due solely by such declaration of acceleration, shall have been cured or
waived as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 6.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on any
Security when such interest shall have become due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of any Security at its
Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount of money then due
and payable with respect to such Securities with interest upon the overdue
principal, and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest at the rate borne by or
provided for in such Securities, and, in addition thereto, such further amount
of money as shall be sufficient to
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cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
money adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities wherever
situated.
If an Event of Default with respect to Securities occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
SECTION 6.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal and/or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount, or such lesser amount
as may be provided for in the Securities, of the principal, interest owing and
unpaid in respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents or counsel) and of the Holders of
Securities allowed in such judicial proceeding, and
(ii) to collect and receive any money or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders of Securities, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 7.07.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security in any such proceeding.
SECTION 6.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or any of the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery or judgment, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, shall be for
the ratable benefit of each and every Holder of a Security in respect of which
such judgment has been recovered.
SECTION 6.06. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 7.07;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal and interest in respect of which or for
the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and Coupons
for principal and interest, respectively;
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 6.07. LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders, or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 6.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest on such Security, as the case may be,
on the respective Stated Maturity or Maturities therefor specified in such
Security and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.
SECTION 6.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and each such Holder shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and each such
Holder shall continue as though no such proceeding had been instituted.
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
2.07, no right or remedy herein conferred upon or reserved to the Trustee or to
each and every Holder of a Security is intended to be exclusive of any other
right or remedy, and every right and remedy, to the extent permitted by law,
shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.11. DELAY OR OMISSION NOT WAIVER.
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No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to any Holder of a Security may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by such Holder, as
the case may be.
SECTION 6.12. CONTROL BY HOLDERS OF SECURITIES.
The Holders of a majority in principal amount of the Outstanding Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series
provided that:
(1) such direction shall not be in conflict with any rule of law, with
this Indenture or with the Securities of such series;
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) such direction is not unduly prejudicial to the rights of the other
Holders of Securities of such series not joining in such action.
SECTION 6.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities on behalf of the Holders of all the Securities may waive
any past default hereunder with respect to such series and its consequences,
except a default:
(1) in the payment of the principal of or interest on any Security; or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 6.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard
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to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, the Trustee or by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding
Securities, or to any suit instituted by any Holder of any Security for the
enforcement of the payment of the principal of or interest on any Security on or
after the respective Stated Maturities expressed in such Security or interest on
any overdue principal of any Security.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no covenants or obligations shall be
implied in this Indenture which are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture, but need
not verify the accuracy of the contents thereof.
(c) The Trustee shall not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.12 hereof.
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(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
(e) Whether or not expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liability which might be
incurred by the Trustee in compliance with such request or direction.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to the provisions of Section 7.01 hereof:
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate and an Opinion of Counsel, which shall conform to Section
11.05. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its
Subsidiaries or Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11 hereof.
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SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities or any money paid to the Company or upon the
Company's direction under any provision hereof, and the Trustee shall not be
accountable for the Company's use of the proceeds from the Securities, and the
Trustee shall not be responsible for any statement in the Securities other than
its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs and is continuing and it is
known to the Trustee, the Trustee shall mail to each Securityholder notice of
the Default or Event of Default within 90 days after it occurs; provided that,
except in the case of a Default or an Event of Default in payment of principal
of, or premium, if any, or interest on any Security, the Trustee may withhold
the notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interest of the
Securityholders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder, and each
other Person so entitled under TIA (Section)313(c), a brief report dated as of
such May 15 that shall comply with TIA (Section)313(a). The Trustee need not
send such report if such report is not required by TIA (Section)313(a). The
Trustee also shall comply with TIA (Section)313(b)(2).
A copy of each report at the time of its mailing to Securityholders shall
be mailed to the Company and filed with the Commission and each stock exchange,
if any, on which the Securities are listed.
The Company shall notify the Trustee if the Securities become listed on any
stock exchange prior to such listing.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless against,
any loss, liability or expense incurred by it including, without limitation, the
cost and expense of enforcement of this Indenture against the Company and of
defending itself against any claim (whether asserted by any Holder or the
Company or otherwise) without negligence, willful misconduct or bad faith on its
part, arising out of or in connection with the administration of this trust or
any trust created under Section
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8.01 or 8.02 and its duties hereunder. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence, wilful misconduct
or bad faith.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or Property held
or collected by the Trustee, in its capacity as Trustee, except money or
Property held in trust to pay principal of, premium, if any, or interest on
particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(d) or (e) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing and mailing
notice of such resignation to the Securityholders. The Holders of at least a
majority in principal amount of the outstanding Securities may remove the
Trustee by so notifying the Company and the Trustee in writing and may appoint a
successor Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its Property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee, unless the Holders have appointed a successor Trustee in accordance
with the previous paragraph. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08 and payment to the prior Trustee of
all sums due under Section 7.07 hereof.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the
retiring Trustee shall transfer all Property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07 hereof, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession
to each Securityholder.
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If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 above shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the resulting, surviving or transferee corporation without any further act
shall, if such resulting, surviving or transferee corporation is otherwise
eligible hereunder, be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA (Section)310(a)(1). The Trustee shall have a combined capital and
surplus of at least $25,000,000 as set forth in its most recent published annual
report of condition. Neither the Company nor any Person directly or indirectly
controlling, controlled by, or under common control with the Company shall serve
as Trustee. The Trustee shall comply with TIA (Section)310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA (Section)311(a), excluding any creditor
relationship listed in TIA (Section)311(b). A Trustee who has resigned or been
removed shall be subject to TIA (Section)311(a) to the extent indicated.
ARTICLE EIGHT
DEFEASANCE; SATISFACTION AND DISCHARGE
SECTION 8.01. DEFEASANCE OF THE INDENTURE.
The Company shall be deemed to have terminated all of its obligations under
this Indenture (subject to Section 8.03 hereof) if:
(1) the Company irrevocably shall have deposited in trust with the
Trustee, pursuant to an irrevocable trust agreement in form and substance
reasonably satisfactory to the Trustee, as trust funds in trust solely for
the benefit of the Holders for that purpose, U.S.
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Legal Tender, or U.S. Government Obligations maturing as to principal and
interest in such amounts and at such times, as are sufficient, without
consideration of the investment of any such U.S. Legal Tender or the
reinvestment of the proceeds from any such U.S. Government Obligations and
after payment of all federal, state and local taxes or other charges or
assessments in respect thereof payable by the Trustee, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to, and in form and substance
reasonably satisfactory to, the Trustee, to pay the principal of, premium,
if any, and interest on the outstanding Securities on the dates on which
such payments are due and payable in accordance with the terms of this
Indenture and of the Securities, provided that the Trustee shall have been
irrevocably instructed to apply such U.S. Legal Tender and the proceeds of
such U.S. Government Obligations to the payment of said principal, premium,
if any, and interest on the Securities;
(2) no Default or Event of Default shall have occurred or be
continuing on the date of such deposit or shall occur on or before the
366th day after the date of such deposit;
(3) such deposit shall not result in a breach or violation of, or
constitute a default under, this Indenture or any other instrument or
agreement to which the Company is a party or by which it or its Property is
bound;
(4) the Company shall have delivered to the Trustee an Opinion of
Counsel in form and substance satisfactory to the Trustee to the effect
that Holders of the Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and the defeasance
contemplated hereby and will be subject to Federal income tax in the same
amounts and in the same manner and at the same time as would have been the
case if such deposit and defeasance had not occurred and that the deposit
is not subject to the control of any bankruptcy court;
(5) Such defeasance shall not cause the Securities, if then listed on
any national securities exchange registered under the Exchange Act, to be
delisted;
(6) Such deposit shall not result in the Company, the Trustee or the
irrevocable trust becoming or being deemed an "investment company" under
the Investment Company Act of 1940, as amended; and
(7) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the defeasance contemplated by this
Section 8.01 have been complied with.
In the event all or any portion of the Securities are to be redeemed
through such irrevocable trust, the Company shall make arrangements satisfactory
to the Trustee, at the time of such deposit, for the giving of notice of such
redemption or redemptions by the Trustee in the name and at the expense of the
Company.
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SECTION 8.02. SATISFACTION AND DISCHARGE OF THE INDENTURE.
In addition to its rights under Section 8.01 above, the Company may
terminate all of its obligations under this Indenture (subject to Section 8.03
hereof) if:
(1) either
(A) all Securities theretofore authenticated and delivered
(other than Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.07 hereof)
have been delivered to the Trustee for cancellation; or
(B) all Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited in trust with the Trustee, pursuant to an
irrevocable trust agreement in form and substance reasonably
satisfactory to the Trustee, as trust funds in trust solely for the
benefit of the Holders for that purpose, an amount of U.S. Legal
Tender sufficient, without consideration of the investment thereof and
after payment of all federal, state and local taxes or other charges
or assessments in respect thereof payable by the Trustee, to pay the
principal of, premium, if any, and interest on the outstanding
Securities on the dates on which such payments are due and payable in
accordance with the terms of this Indenture and of the Securities,
provided that the Trustee shall have been irrevocably instructed to
apply such U.S. Legal Tender to the payment of said principal,
premium, if any, and interest on the Securities;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
specified herein relating to the satisfaction and discharge of this
Indenture pursuant to this Section 8.02 have been complied with.
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SECTION 8.03. SURVIVAL OF CERTAIN OBLIGATIONS.
Notwithstanding the defeasance of this Indenture or the satisfaction and
discharge of this Indenture referred to in Section 8.01 and Section 8.02 above,
respectively, the respective obligations of the Company and the Trustee under
Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.11, 2.13, 2.14,
Sections 4.01, 4.02, 4.03, 6.08, 7.07, 7.08, 7.09, 7.10, 7.11, 8.03, 8.04, 8.05,
8.06 and 8.07, Article Nine, and Sections 11.01, 11.02, 11.06, 11.07 and 11.08
hereof shall survive until the Securities are no longer outstanding. Thereafter
the obligations of the Company and the Trustee under Sections 7.07, 8.05, 8.06
and 8.07 hereof shall survive.
SECTION 8.04. ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE.
Subject to Section 8.07 below and after the Company has delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent referred to in Section 8.01 or Section 8.02, as the
case may be, relating to the defeasance or satisfaction and discharge of this
Indenture have been complied with, the Trustee upon request of the Company shall
acknowledge in writing the defeasance or the satisfaction and discharge, as the
case may be, of this Indenture and the discharge of the Company's obligations
under this Indenture except for those surviving obligations specified in Section
8.03 above.
SECTION 8.05. APPLICATION OF TRUST MONEY.
The Trustee shall hold any U.S. Legal Tender or U.S. Government Obligations
deposited with it in the irrevocable trust established pursuant to Section 8.01
or 8.02, as the case may be. The Trustee shall apply the deposited U.S. Legal
Tender and (in the case of a deposit pursuant to Section 8.01) any U.S.
Government Obligations through the Paying Agent (other than the Company or a
Subsidiary or Affiliate of the Company), in accordance with this Indenture and
the terms of the irrevocable trust agreement, to the payment of principal of,
premium, if any, and interest on the Securities as and when the same become due
and payable. The U.S. Legal Tender and U.S. Government Obligations so held in
trust shall not be part of the trust estate under this Indenture, but shall
constitute a separate trust fund for the benefit of all Holders entitled
thereto.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 8.01 or the principal and interest received in
respect thereof, other than any such tax, fee or other charge which by law is
for the account of the Holders of the Securities.
SECTION 8.06. REPAYMENT TO THE COMPANY.
The Trustee and the Paying Agent shall pay to the Company upon written
request, and, if applicable, in accordance with the irrevocable trust
established pursuant to Section 8.01 or 8.02 above, any U.S. Legal Tender or
U.S. Government Obligations held by them for the payment of principal of,
premium, if any, or interest on the Securities that remains unclaimed for two
years after the date on which such payment shall have become due; provided,
however, that, before being required to make any such payment to the Company,
the Trustee may, at the expense of the Company, cause to be mailed to the
Holders of such Securities, at their last addresses as they appear
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on the Securities register, notice that such moneys or U.S. Government
Securities remain unclaimed and that, after a date specified in said notice, the
balance of such moneys then unclaimed will be returned to the Company. After
payment to the Company as aforesaid, Holders entitled to such moneys or U.S.
Government Obligations must look to the Company for such payment unless an
applicable abandoned property law designates another Person.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender or
U.S. Government Obligations in accordance with Section 8.01 or 8.02 hereof by
reason of any legal proceeding or by reason of any order or judgment of any
court or Governmental Authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture shall be
revived and reinstated as though no deposit had occurred pursuant to Section
8.01 or 8.02, as the case may be until such time as the Trustee or Paying Agent
is permitted to apply all such funds in accordance with Section 8.01 or 8.02, as
the case may be, and 8.05; provided, however, that if the Company has made any
payment of principal of, premium, if any, or interest on any Securities because
of the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the U.S.
Legal Tender or U.S. Government Obligations held by the Trustee.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a resolution of its Board of Directors, and
the Trustee, together, may amend or supplement this Indenture or the Securities
without notice to or consent of any Securityholder for any one or more of the
following:
(1) to cure any ambiguity, defect or inconsistency, or to make any
other provisions with respect to matters or questions arising under this
Indenture, provided that such action does not adversely affect the rights
or interests of any Holder of Securities;
(2) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action does not adversely affect the
rights or interests of any Holder of Securities;
(3) to provide for uncertificated Securities in addition to
certificated Securities;
(4) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Company pursuant to
Article Five;
(5) to secure all of the Securities;
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(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities;
(7) to comply with the rules or regulations of any securities
exchange on which any of the Securities may be listed; or
(8) to add to the covenants and agreements of the Company such
further covenants and agreements as the Board of Directors of the Company
shall consider to be for the protection or benefit of the Holders or to add
any Events of Default or to surrender any right or power reserved to or
conferred upon the Company.
SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.08 and the next succeeding paragraph, the Company,
when authorized by a resolution of its Board of Directors, and the Trustee,
together, with the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities may amend or supplement
this Indenture or the Securities without notice to any other Securityholders.
Subject to Section 6.08 and the next succeeding paragraph, the Holders of at
least a majority in aggregate principal amount of the outstanding Securities may
waive compliance by the Company with any provision of or obligation under this
Indenture or the Securities without notice to any other Securityholders.
Notwithstanding anything to the contrary in the foregoing provisions of
this Section 9.02, without the consent of each Securityholder affected, no
amendment, supplement or waiver, including a waiver pursuant to Section 6.02,
may:
(1) reduce the percentage in principal amount of the outstanding
Securities the consent of whose Holders is required for any amendment or
supplement to this Indenture, for any waiver (of compliance with any
obligation or provision of this Indenture or of certain Defaults or Events
of Default hereunder or their consequences) provided for in this Indenture,
or for a rescission of acceleration of the Securities pursuant to Section
6.02, or reduce the requirements pursuant to Section 10.05 for a quorum or
voting;
(2) reduce the rate or change the time for payment of interest on any
Security;
(3) reduce the principal amount of or premium on any Security;
(4) alter the redemption or repurchase provisions of any Security in
a manner adverse to any Holder thereof, or change the Stated Maturity of
any Security;
(5) waive any default in the payment of the principal of, premium, if
any, or interest on any Security;
(6) impair the right of Holders to institute suit for the enforcement
of any payment of the principal of, premium, if any, or interest on the
Securities on or after the respective due dates therefor;
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(7) make any changes in Section 6.02, 6.08 or this second paragraph
of Section 9.02;
(8) change any obligation of the Company to maintain an office or
agency in the place and for the purpose specified in Section 4.02 or make
the Securities payable in any coin or currency other than U.S. Legal
Tender; or
(9) make any change to or modify the priority between the Holders of
the Securities and any other creditors of the Company.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment, supplement or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amendment, supplement or waiver.
SECTION 9.03. COMPLIANCE WITH TIA.
Every amendment to or waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
such Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives
written notice of revocation before the date on which the Trustee receives an
Officer's Certificate certifying that the Holders of the requisite principal
amount of Securities have consented to the amendment, supplement or waiver.
Such amendment, waiver or supplement, as the case may be, shall be effective
upon receipt by the Trustee of such Officer's Certificate.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the last
two sentences of the immediately preceding paragraph, those Persons who were
Holders at the close of business on such record date (or their duly designated
proxies), and only those Persons, shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
All Holders that consent to such modification, waiver or action in the
manner and within the time period requested shall be entitled to receive the
consideration, if any, offered for such consent.
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SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
has so determined, the Company in exchange for the Security may execute and the
Trustee shall authenticate a new Security of like kind that reflects the changed
terms.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise. In signing or
refusing to sign such amendment or supplement, the Trustee shall be entitled to
receive and, subject to Section 7.01 hereof, shall be fully protected in relying
upon, an Officer's Certificate and an Opinion of Counsel as conclusive evidence
that such amendment or supplement is authorized or permitted by this Indenture,
that it is not inconsistent herewith, and that it will be valid and binding upon
the Company in accordance with its terms. The Company shall not sign an
amendment or supplement until its Board of Directors approves thereof.
SECTION 9.07. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplement or amendment to this Indenture in
accordance with this Article, this Indenture shall be modified in accordance
therewith and such supplement or amendment shall form a part of the Indenture
for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered shall be bound thereby. Any Holder and every
subsequent Holder of a Security (or portion thereof) shall be bound by any
waivers authorized or obtained by this Article.
ARTICLE TEN
MEETINGS OF AND ACTIONS BY SECURITYHOLDERS
SECTION 10.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Securityholders may be called at any time and from time to
time pursuant to the provisions of this Article Ten for any of the following
purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to waive or to consent to the waiving of
any Default or Event of Default hereunder and its consequences, or to take
any other action authorized to be taken by Securityholders pursuant to any
of the provisions of Article Six;
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(b) to remove the Trustee or appoint a successor Trustee pursuant to
the provisions of Article Seven;
(c) to consent to an amendment, supplement or waiver pursuant to the
provisions of Section 9.02; or
(d) to take any other action (i) authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of the
Securities under any other provision of this Indenture, or authorized or
permitted by law or (ii) which the Trustee deems necessary or appropriate
in connection with the administration of this Indenture.
SECTION 10.02. MANNER OF CALLING MEETINGS.
The Trustee may at any time call a meeting of Securityholders to take any
action specified in Section 10.01 hereof, to be held at such time and at such
place in The City of New York or elsewhere as the Trustee shall determine.
Notice of every meeting of Securityholders, setting forth the time and place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed by the Trustee, first-class postage prepaid, to the
Company, and to the Holders of the Securities at their last addresses as they
shall appear on the registration books of the Registrar, not less than 10 nor
more than 60 days prior to the date fixed for a meeting.
Any meeting of Securityholders shall be valid without notice if the Holders
of all Securities then outstanding are present in Person or by proxy, or if
notice is waived before or after the meeting by the Holders of all Securities
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Certified Resolution of its
Board of Directors delivered to the Trustee, or the Holders of not less than 10%
in aggregate principal amount of the Securities then outstanding, shall have
requested the Trustee to call a meeting of Securityholders to take any action
specified in Section 10.01 hereof, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or the Holders of Securities in the
amount above specified may determine the time and place in The City of New York
or elsewhere for such meeting and may call such meeting for the purpose of
taking such action, by notice given as provided in Section 10.02.
SECTION 10.04. WHO MAY ATTEND AND VOTE AT MEETINGS.
To be entitled to vote at any meeting of Securityholders, a Person shall
(a) be a registered Holder of one or more Securities, or (b) be a Person
appointed by an instrument in writing as proxy for the registered Holder or
Holders of Securities. The only Persons who shall be entitled to be present or
to speak at any meeting of Securityholders shall be the Persons entitled to vote
at such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
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SECTION 10.05. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS; ADJOURNMENT.
Notwithstanding any other provision of this Indenture, the Trustee may make
such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, and submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think appropriate. Such regulations may fix
a record date and time for determining the Holders of record of Securities
entitled to vote at such meeting, in which case those and only those Persons who
are Holders of Securities at the record date and time so fixed, or their
proxies, shall be entitled to vote at such meeting whether or not they shall be
such Holders at the time of the meeting.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 10.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
At any meeting each Securityholder or proxy shall be entitled to vote with
respect to the outstanding Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Securities challenged as not outstanding and ruled by the chairman of the
meeting to be not outstanding. The chairman of the meeting shall not have the
right to vote other than by virtue of Securities held by him or instruments in
writing as aforesaid duly designating him as the proxy to vote on behalf of
other Securityholders. At any meeting of Securityholders, the presence of
Persons holding or representing a majority of the principal amount of the
outstanding Securities shall be sufficient for a quorum. Any meeting of
Securityholders duly called pursuant to the provisions of Sections 10.02 or
10.03 may be adjourned from time to time by vote of the Holders of a majority in
aggregate principal amount of the Securities represented at the meeting and
entitled to vote, and the meeting may be held as so adjourned without further
notice.
Except as limited by Sections 6.02 and 6.08 and the second paragraph of
Section 9.02, any resolution presented to a meeting at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the outstanding Securities.
SECTION 10.06. VOTING AT THE MEETING AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of Securityholders
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities or of their representatives by proxy and the principal
amount of the Securities voted by the ballot. The permanent chairman of the
meeting shall appoint two inspectors of votes, who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to such record the original reports of the inspectors of
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votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts, setting forth a copy of the notice of the meeting
and showing that such notice was mailed as provided in Section 10.02 or Section
10.03. The record shall be signed and verified by the affidavits of the meeting
and one of the duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 10.07. EXERCISE OF RIGHTS OF TRUSTEE OR SECURITYHOLDERS MAY
NOT BE HINDERED OR DELAYED BY CALL OF MEETING.
Nothing contained in this Article Ten shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Securityholders or
any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Securityholders under any of the provisions of
this Indenture or of the Securities.
SECTION 10.08. EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS.
(a) In addition to the foregoing provisions of this Article Ten, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Securityholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by agent duly appointed in
writing, or by combination of such instrument or instruments and the record of a
meeting of Securityholders duly called and held in accordance with this Article
Ten. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Section 7.01) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Article.
(b) Any request, demand, authorization, direction, notice, consent, waiver
or other action of the Holder of any Security in accordance with this Section
10.08 shall bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(c) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action in accordance
with this Section 10.08, the Company may, at its option, by or pursuant to an
Officer's Certificate delivered to the Trustee, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or such other act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other act
may be given before or after such record date, but only those Persons who were
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Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
percentage of outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
act, and for that purpose the outstanding Securities shall be computed as of
such record date; provided, that no such authorization, agreement or consent by
the Holders on the record date shall be deemed effective unless such request,
demand, authorization, direction, notice, consent, waiver or other act shall
become effective pursuant to the provisions of paragraph (a) of this Section
10.08 not later than 90 days after the record date.
SECTION 10.09. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES.
The execution of any instrument by a Securityholder or his agent or proxy
may be proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee, and the holding of Securities shall be proved by the Security register
or by a certificate of the Registrar.
SECTION 10.10. RIGHT OF REVOCATION OF ACTION TAKEN.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 10.08, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any Holder of a Security the serial
number of which is shown by the evidence to be included among the serial numbers
of the Securities the Holders of which have consented to such action may, by
filing written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article, revoke such action so far as concerns such Security.
After such time, such action shall be conclusive and binding upon such Holder
and the Securities issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
SECTION 11.02. NOTICES.
Any notices or other communications required or permitted hereunder shall
be in writing, and shall be sufficiently given if made by hand delivery, by
telecopier or registered or certified mail, postage prepaid, return receipt,
addressed as follows:
if to the Company:
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Toyota Motor Credit Corporation
19001 South Western Avenue
Torrance, California 90501
Telecopier: (310) 787-6194
Attention: Treasury Department
if to the Trustee:
U.S. Bank National Association
c/o First Trust National Association
One Illinois Center
111 E. Wacker Drive, Suite 3000
Chicago, Illinois 60601
Telecopier: (312) 228-9401
Attention: TMCC Demand Notes
The Company or the Trustee by notice to the other may designate additional
or different addresses as shall be furnished in writing by either party. Any
notice or communication to the Company or the Trustee shall be deemed to have
been given or made as of the date so delivered if personally delivered; when
receipt is acknowledged, if telecopied; and five days after mailing if sent by
registered or certified mail (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed to
him by first class mail, postage prepaid, at his address as it appears on the
register of the Registrar and shall be sufficiently given to such Holder if so
mailed within the time prescribed. If the Company mails a notice or
communication to Securityholders, it shall simultaneously mail a copy to the
Trustee.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other Person shall
have the protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officer's Certificate (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with (and,
34
<PAGE>
if applicable, setting forth in reasonable detail any financial
calculations providing the basis of such opinion); and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officer's Certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officer's Certificate or certificates of public officials.
At the request of the Trustee, any Officer's Certificate or Opinion of
Counsel shall address any particular condition precedent to such action.
SECTION 11.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 11.07. LEGAL HOLIDAYS.
If a payment date is not a Business Day at a particular place where the
principal of, premium, if any, or interest on the Securities is payable, payment
may be made on the next succeeding day that is a Business Day at such place of
payment, and no interest shall accrue for the intervening period.
35
<PAGE>
SECTION 11.08. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD (TO THE EXTENT
PERMITTED BY LAW) TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any of its Subsidiaries. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder, Affiliate or incorporator, as
such, of the Company shall not have any liability for any obligations of the
Company under the Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such Persons from
such liability. Such waivers and releases are part of the consideration for the
issuance of the Securities.
SECTION 11.11. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall
bind their successors. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 11.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.13. SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or enforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim thereunder for or against any party hereto.
SECTION 11.14. HEADINGS AND TABLE OF CONTENTS.
The headings, Table of Contents and Cross-Reference Table in this Indenture
are for convenience of reference only and shall not be deemed a part of this
Indenture or limit or otherwise affect the meaning hereof.
36
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the date first written above.
TOYOTA MOTOR CREDIT CORPORATION
[Seal]
By: /s/ George Borst
----------------------------------------
Name: George Borst
Title: Senior Vice President and
General Manager
Attest:
By: /s/ Robert Pitts
------------------------------
Name: Robert Pitts
Title:
U.S. BANK NATIONAL ASSOCIATION
as Trustee
By: /s/ Steven E. Charles
----------------------------------------
Name: Steven E. Charles
Title: Vice President
Attest:
By: /s/ Nancie J. Arvin
------------------------------
Name: Nancie J. Arvin
Title: Assistant Secretary
<PAGE>
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On September 18, 1997, before me, Tracey B. Kirst, Notary Public,
personally appeared George Borst, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he executed the same in his authorized capacity, and that by his signature on
the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Tracey B. Kirst
---------------------------------------------
Notary Public
<PAGE>
State of California )
) ss.
County of Los Angeles )
On September 23, 1997, before me, Catherine Emmett, Notary Public,
personally appeared Steven Charles, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he executed the same in his authorized capacity, and that by his signature on
the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Catherine Emmett
---------------------------------------------
Notary Public
<PAGE>
ANNEX I
TO
INDENTURE
DATED AS OF SEPTEMBER 1, 1997
BETWEEN
TOYOTA MOTOR CREDIT CORPORATION
AND
U.S. BANK NATIONAL ASSOCIATION
as Trustee
Definitions
The following terms have the respective meanings set forth below for all
purposes of the Indenture, and Section and Article references are to Sections
and Articles in the Indenture. Capitalized terms used in the Indenture and the
Securities not otherwise defined shall have the respective meanings assigned
thereto in the Annex of Definitions attached to the Amended and Restated Trust
and Servicing Agreement dated as of October 1, 1996 among Toyota Motor Credit
Corporation, TMTT, Inc. and (for certain limited purposes only) First Bank
National Association and the Supplemental Annex of Definitions attached to the
1997-A SUBI Supplement to the Amended and Restated Trust and Servicing
Agreement) dated as of September 1, 1997, between Toyota Leasing, Inc. and U.S.
Bank National Association, as securitization trustee; capitalized terms used
herein and therein inconsistently shall have the meaning assigned to such term
herein.
"Affiliate" means, as to any Person, any other Person which directly or
indirectly controls or is controlled by, or is under direct or indirect common
control with, such Person. For the purposes of this definition, "control", when
used with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have the meanings correlative to the foregoing.
For purposes of this Indenture, the 1997-A Securitization Trust (and the 1997-A
Securitization Trustee on behalf of the 1997-A Securitization Trust) shall not
be considered to be "Affiliates" of the Company.
"Agent" means any Registrar, Paying Agent or co-Registrar or other agent of
the Company acting under the Indenture.
"Board of Directors" means the board of directors of the Company or any
committee thereof authorized generally or in any particular respect to exercise
the power of the board of directors of the Company.
"Business Day" means a day other than a Saturday, Sunday or other day on
which banking institutions in New York, New York, Los Angeles, California, or
Chicago, Illinois are authorized or obligated by law, regulation, executive
order or decree to be closed.
I-1
<PAGE>
"Certified Resolution" means a copy of a resolution of the Board of
Directors of the Company, certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted and to be in full force and effect on
the date of such certification.
"Commercial Paper Rate" means the Money Market Yield on the Calculation
Date for commercial paper maturing in one month as such rate appears at 11:00
a.m. New York City time on the Calculation Date on page 133 of the Dow Jones
Telerate Service (or such other page as may replace such page on that service or
such other service or services as may succeed such service) which shows
information for such rate as of the prior business day under the caption "Daily
Commercial Paper Rates (Non financial) from the Federal Reserve"(or similar
heading of like import). If by 3:00 p.m., New York City time, on the related
Calculation Date such rate is not yet available, then the Commercial Paper Rate
will be the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 a.m., New York City time, on such date of three leading
dealers of commercial paper in The City of New York for commercial paper having
a maturity date of one month placed for an industrial issuer whose bond rating
is "AA", or the equivalent, from a nationally recognized securities rating
agency; provided, however, that if such dealers are not quoting as mentioned in
this sentence, the Commercial Paper Rate for such date shall be the Commercial
Paper Rate as in effect as of the immediately preceding Calculation Date. For
purposes of these definitions, "Calculation Date" shall mean each of the
original dates of investment in the Security, and each Monthly Allocation Date
thereafter, and "Money Market Yield" shall mean a yield (expressed as a
percentage rounded upwards to the nearest one hundred-thousandth of a percentage
point) calculated in accordance with the following formula:
Money Market Yield = ([D x 360]/[360-{D x M}) x 100
where "D" refers to the applicable per annum rate for commercial paper rate
quoted on a bank discount basis and expressed as a decimal, and "M" refers to
the actual number of days in the interest period for which interest is being
calculated. Such Commercial Paper Rate shall be calculated on each Calculation
Date by the calculation agent appointed pursuant to that certain Calculation
Agency Agreement dated as of September 1, 1997 between the Company and U.S. Bank
National Association, as Calculation Agent.
"Commission" means the Securities and Exchange Commission, or any successor
thereto.
"Company" means Toyota Motor Credit Corporation, a California corporation,
the issuer of the Securities under the Indenture, until a successor replaces it
pursuant to the Indenture and thereafter means such successor.
"Corporate Trust Office" means an office of the Trustee at which at any
particular time its corporate trust business shall be administered, which at the
date of execution of the Indenture is located at One Illinois Center, 111 E.
Wacker Drive, Suite 3000, Chicago, Illinois 60601
"Date of Investment" means each Monthly Allocation Date on which an amount
(whether Interest Collections or Principal Collections or otherwise) is invested
in the TMCC Demand Notes.
I-2
<PAGE>
"Default" means any event that is or with the passing of time or giving of
notice or both would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.12.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor thereto, and the regulations promulgated thereunder.
"GAAP" means generally accepted accounting principles in the United States
which are applied by the Company as of the date of the Indenture.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Indenture" means the Indenture dated as of September 1, 1997 between the
Company and U.S. Bank National Association, as trustee, relating to
$1,600,000,000 aggregate principal amount of the Company's TMCC Demand Notes,
including Exhibit A and this Annex I thereto, as the same may be amended or
supplemented from time to time in accordance with its terms.
"Interest Payment Date" is any date on which interest is payable as set
forth in the Security.
"Maturity", with respect to any Security, means the date on which the
principal (and the accrued interest thereon to but excluding the date on which
such principal is paid) of such Security or an installment of principal (and the
accrued interest thereon to the date on which such principal is paid becomes due
and payable as provided in or pursuant to this Indenture, whether (x) at the
Stated Maturity Date thereof, (y) on the date specified in a demand (as
evidenced by the delivery to the Trustee of a demand in the form of Exhibit B to
the Indenture) for the payment of 100% of the outstanding principal amount of
the TMCC Demand Notes by any holder following the occurrence of a Monthly
Payment Event Occurrence or (z) upon declaration of acceleration upon the
occurrence of an Event of Default hereunder. A demand duly delivered to the
Trustee in accordance with clause (y) above will cause the entire principal
amount (and the accrued interest thereon to but excluding the date on which such
principal is paid) of the Outstanding Securities to become due and payable on
the date specified in such demand. A Maturity pursuant to clause (x) or (y) of
this definition, in and of itself, shall not be an Event of Default or Default
hereunder.
"Officer" means the President or Vice President, the Chief Financial
Officer, the Chief Accounting Officer, the Treasurer, the Controller, Secretary
or Assistant Secretary of the Company.
"Officer's Certificate" means a certificate signed by any Officer of the
Company, and otherwise complying with the applicable requirements of Sections
11.04 and 11.05 of the Indenture.
I-3
<PAGE>
"Opinion of Counsel" means a written opinion from legal counsel who, in the
case of an Opinion of Counsel addressed to the Trustee, is reasonably acceptable
to the Trustee. The counsel may be an employee of or counsel to the Company.
Each opinion shall comply with the applicable requirements of Sections 11.04 and
11.05 of the Indenture.
"Paying Agent" has the meaning specified in Section 4.02.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture or
governmental authority.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security. For purposes of this definition, any Security
authenticated and delivered under Section 2.07 in exchange for or in lieu of a
defaced, mutilated, lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the defaced, mutilated, lost, destroyed or stolen
Security.
"Record Date" means the day immediately preceding the related Certificate
Payment Date (whether or not a Business Day).
"Registrar" has the meaning specified in Section 4.02.
"Required Rate" with respect to any Monthly Allocation Date and the
principal amount outstanding as set forth on any of the Schedules attached to a
Security, means a per annum rate of interest which shall be calculated as
follows: (x) with respect to the certificates representing Principal Collections
(and collections treated as Principal Collections pursuant to Section 3.01(b) of
the Securitization Trust Agreement), the Certificate Rate for the related Class
of Certificates, and (y) with respect to any certificate representing Interest
Collections, the Commercial Paper Rate as such rate shall be adjusted monthly on
each Monthly Allocation Date.
"Securities" means the Company's TMCC Demand Notes.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor thereto, and the regulations promulgated thereunder.
"Special Record Date" has the meaning specified in Section 2.12.
"Stated Maturity Date" when used with respect to the principal on the
Securities means the date specified on the Schedule attached to the certificate
representing such Security as the fixed date on which the principal thereof is
due and payable, which date shall be (x) with respect to the certificates
representing Principal Collections, the Business Day next preceding the related
Targeted Maturity Date, and (y) with respect to any certificate representing
Interest Collections, the Business Day next preceding the Certificate Payment
Date that immediately follows the related Date of Investment.
I-4
<PAGE>
"Subsidiary" means any Corporation of which at the time of determination
the Company or one or more Subsidiaries owns or controls directly or indirectly
more than 50% of the shares of Voting Stock.
"TIA" and "Trust Indenture Act" mean the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means U.S. Bank National Association, as trustee under the
Indenture until a successor replaces it in accordance with the provisions of the
Indenture, and thereafter means such successor.
"Trust Officer," when used with respect to the Trustee, means any officer
within the Corporate Trust Office of the Trustee, or any other officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers or to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with the
particular subject.
"United States" and "U.S." each mean the United States of America.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
"U.S. Legal Tender" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
I-5
<PAGE>
EXHIBIT A
[FORM OF FACE OF SECURITY]
TOYOTA MOTOR CREDIT CORPORATION
TMCC Demand Notes
[For Principal Collections allocable to the Class A-1 Certificates](1)
[For Principal Collections allocable to the Class A-2 Certificates]
[For Principal Collections allocable to the Class A-3 Certificates]
[For Principal Collections allocable to the Class B Certificates]
[For Interest Collections]
No.
------------------------
Toyota Motor Credit Corporation, a California corporation (the "Company,"
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to U.S. Bank
National Association, in its capacity as trustee under the Securitization Trust
Agreement dated as of September 1, 1997, or registered assigns, the principal
sum of U.S. Dollars as shall be set forth on the Schedule attached hereto as of
the date of Maturity, and to pay interest on the outstanding amount of
principal, as set forth on the Schedule from time to time, from the date such
principal amount is originally issued and outstanding (or from the most recent
Interest Payment Date to which interest has been paid or duly provided for), on
the Business Day next preceding the Certificate Payment Date (including a
Targeted Maturity Date) immediately following the related Date of Investment
(each an "Interest Payment Date"), at the then applicable Required Rate [as such
rate shall be adjusted on each Calculation Date], to but excluding the date on
which the principal hereof is paid or duly provided for. Interest on this
Security will be computed on the basis of a 360-day year of twelve 30-day
months. The interest so payable and punctually paid or duly provided for on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the date that is one day (whether or not
a Business Day), next preceding such Interest Payment Date (each, a "Record
Date"). Any such interest which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date shall forthwith cease to be payable
to the Holder on such Record Date by virtue of having been such Holder, and may
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to the Holder of this Security not less than 10 days
prior to such Special Record Date or may be paid in any other lawful manner, all
as more fully provided in the Indenture. Payment of the principal of, premium,
if any, and interest on this Security will be made at the office or agency of
the Company maintained for that purpose in Chicago, Illinois,
- -------------------------
1 Specify depending on TMCC Demand Note allocation.
2 Insert for Interest Collections TMCC Demand Notes.
A-1
<PAGE>
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that, except as otherwise provided in the Indenture, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the register of Securities maintained by
the Registrar.
The date of Maturity with respect to the principal (and the accrued
interest thereon to the date on which such principal is paid) amount
evidenced by this Security shall be, the earlier of (x) [the Business Day
immediately preceding the Targeted Maturity Date for the Class A-1/A-2/A-3/B
Certificates] (1) [the Business Day immediately preceding the Certificate
Payment Date immediately following the related Date of Investment],(2)
(y) the date specified in a demand (as evidenced by the delivery to the
Trustee of a demand in the form of Exhibit B to the Indenture) for the
payment of 100% of the outstanding principal amount of the TMCC Demand Notes
by any holder following the occurrence of a Monthly Payment Event Occurrence
or (z) the date upon which the Outstanding Securities become due and payable
due to the declaration of acceleration upon the occurrence of an Event of
Default under the terms of the Indenture.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: TOYOTA MOTOR CREDIT CORPORATION
By:
-----------------------------------
Name:
Title:
Attest:
- ------------------------------
Secretary
[Corporate Seal]
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned Indenture.
U.S. Bank National Association, U.S. Bank National Association,
as Trustee OR as Trustee
By: By:
--------------------------------- -------------------------------------
Authorized Signatory as Authenticating Agent
By:
-------------------------------------
Authorized Signatory
A-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
TOYOTA MOTOR CREDIT CORPORATION
TMCC DEMAND NOTES
1. INDENTURE.
This Security is one of the duly authorized issue of the Company's TMCC
Demand Notes (the "Securities"), issued by the Company under an Indenture dated
as of September 1, 1997 (as the same may be amended or supplemented from time to
time, the "Indenture") between the Company and U.S. Bank National Association,
as Trustee (the "Trustee," which term includes any successor trustee under the
Indenture). The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act.
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of such terms and for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of Securities.
The Securities are general obligations of the Company, limited to an
aggregate principal amount of $1,600,000,000, except as otherwise provided in
the Indenture.
No reference herein to the Indenture and no provision of this Security or
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Security at the times, places and rate and in the coin and
currency herein and in the Indenture prescribed.
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Toyota Motor Credit
Corporation, Attention: Treasury Department.
2. CAPITALIZED TERMS.
Capitalized terms used in this Security have the meanings assigned to them
in the Indenture unless otherwise defined in this Security.
3. PAYING AGENT AND REGISTRAR.
The Trustee has been appointed to act as initial Paying Agent and Registrar
for the Securities in Chicago, Illinois. The Company may appoint additional
Paying Agents and co-Registrars, and may change any Paying Agent, Registrar or
co-Registrar, all as provided in the Indenture. Except as otherwise provided in
the Indenture, the Trustee, the Company or any of its Subsidiaries may act as
Paying Agent, Registrar or co-Registrar.
A-4
<PAGE>
4. REDEMPTION.
The Securities are not redeemable prior to their respective maturities at
the option of the Company, in whole or from time to time in part.
5. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are issuable only in registered form, without coupons, in
denominations of at least U.S. $0.01. A Holder may register the transfer of or
exchange Securities in accordance with the Indenture, subject to the limitations
provided therein. The Registrar or a co-Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents in form
satisfactory to the Registrar and the Trustee. No service charge shall be made
to a Holder for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith, except as otherwise
provided in the Indenture. The Company will maintain in Chicago, Illinois, an
office or agency where Securities may be surrendered for registration of
transfer or exchange.
6. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any Agent may treat the Person in whose name such
Security is registered as the owner of such Security for all purposes.
7. UNCLAIMED MONEY.
The Trustee and the Paying Agent shall pay to the Company upon written
request any U.S. Legal Tender or U.S. Government Obligations held by them for
the payment of the principal of, premium, if any, or interest on the Securities
which remains unclaimed for two years after the date on which such payment shall
have become due. After payment to the Company as aforesaid, Holders entitled to
such moneys or U.S. Government Obligations must look to the Company for such
payment unless an applicable abandoned property law designates another Person.
8. DISCHARGE PRIOR TO MATURITY.
If the Company irrevocably deposits with the Trustee U.S. Legal Tender or,
in certain cases, U.S. Government Obligations sufficient to pay the principal
of, premium, if any, and interest on the Securities to maturity, or if all the
outstanding Securities have been delivered to the Trustee for cancellation, and
in either case if the Company complies with the other provisions of the
Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Securities (including the financial
covenants, but excluding its obligation to pay the principal of, premium, if
any, and interest on the Securities).
A-5
<PAGE>
9. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions and limitations set forth in the Indenture,
the Indenture or the Securities may be amended or supplemented with the consent
of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and compliance with any provision or obligation
under the Indenture or the Securities may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding. The Indenture also permits the Company and the Trustee, without
notice to or consent of any Holder, to enter into certain amendments or
supplements to the Indenture or the Securities.
10. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee, or the
Holders of at least 25% in principal amount of the outstanding Securities, may
declare all unpaid principal of and accrued interest on the Securities to be due
and payable immediately in the manner and with the effect provided in the
Indenture. The Indenture provides that the Holders of a majority in principal
amount of the Securities outstanding may rescind an acceleration of the
Securities and its consequences on the terms and subject to the conditions set
forth in the Indenture. The Indenture also provides that the Holders of a
majority in principal amount of the outstanding Securities may waive an existing
Default or Event of Default and its consequences except, among other things, a
default in the payment of the principal of or interest on any of the Securities.
11. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee, in its individual or any other capacity, may become the owner
or pledgee of Securities and may otherwise deal with the Company or its
Subsidiaries or Affiliates with the same rights it would have if it were not the
Trustee. The Trustee, however, must comply with the provisions of the Trust
Indenture Act, including those relating to the Trustee acquiring any
"conflicting interest" as defined therein.
12. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder or incorporator, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such Persons from such liability. Such waiver
and release are part of the consideration for the issuance of the Securities.
13. AUTHENTICATION.
This Security and the entries on the Schedule shall not be valid unless the
Trustee or an authenticating agent has signed the certificate of authentication
on this Security and such Schedule by manual signature.
14. ABBREVIATION.
A-6
<PAGE>
Customary abbreviations may be used in the name of a Holder of a Security
or an assignee, such as: TEN COM ( = tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
15. GOVERNING LAW; HEADINGS.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD (TO THE EXTENT PERMITTED BY LAW) TO
PRINCIPLES OF CONFLICTS OF LAW.
The headings in this Security are for convenience of reference only and
shall not be deemed a part of this Security or limit or otherwise affect the
meaning hereof.
A-7
<PAGE>
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s), assign(s)
and transfer(s) unto
(Insert Taxpayer Identification No.)
-------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing ________________________________________________________________
attorney to transfer said Security on the books of the Company with full power
of substitution in the premises.
A-8
<PAGE>
SCHEDULE TO
TMCC DEMAND NOTE
<TABLE>
<CAPTION>
Advances Payments
-------- --------
Date of Initial Principal
Advance or Advance Principal Required Stated Principal Interest Balance
Payment No. Amount Rate Maturity Date Amount Amount Outstanding
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
- -------------------------------
A-9
<PAGE>
EXHIBIT B
FORM OF DEMAND
The undersigned hereby certifies to U.S. Bank National Association, in its
capacity as trustee (the "Trustee") under the Indenture dated as of September 1,
1997 (the "Indenture") between the Trustee and Toyota Motor Credit Corporation,
that it is the holder of all or a portion of the Securities issued and
outstanding under the Indenture, and that pursuant to the terms of the
Indenture, it is demanding the payment in full of the principal (plus accrued
interest thereon to the date specified below) of the Outstanding Securities.
The date on which such principal and accrued interest is to be paid
is:__________________.
Dated:
By:
-----------------------------------------
A-10
<PAGE>
EXECUTION COPY
TOYOTA MOTOR CREDIT CORPORATION
CALCULATION AGREEMENT
THIS AGREEMENT is made as of September 1, 1997, between Toyota Motor Credit
Corporation, a California corporation (the "Issuer"), and U.S. Bank National
Association (the "Calculation Agent");
WHEREAS, the Issuer proposes to issue and sell on a continuous basis its
TMCC Demand Notes (the "Notes") pursuant to the terms and conditions of the
Indenture referred to below; and
WHEREAS, the Issuer desires to appoint the Calculation Agent as the
Calculation Agent with respect to certain Notes relating to the investment of
Interest Collections (the "Subject Notes") from time to time, and the
Calculation Agent desires to accept such appointment, in each case pursuant to
the terms and conditions set forth herein; and
WHEREAS, the Issuer is entitled to the benefits of the Indenture, dated as
of September 1, 1997 (the "Indenture"), between the Issuer, and U.S. Bank
National Association as indenture trustee with respect to the Notes (the
"Indenture Trustee");
NOW IT IS HEREBY AGREED THAT:
Section 1. APPOINTMENT OF CALCULATION AGENT; DEFINITIONS. The Issuer
hereby appoints the Calculation Agent as Calculation Agent with respect to the
Subject Notes. The Calculation Agent hereby accepts its appointment as an
independent party for the purpose of calculating, as applicable, the principal
of, the interest rate of, and amount of interest on, the Subject Notes upon the
terms and conditions set forth herein. Capitalized terms used herein and not
otherwise defined shall have the respective meanings assigned to them in the
Indenture or the Subject Notes.
Section 2. CALCULATION OF INTEREST RATES AND PRINCIPAL. (a) The
Calculation Agent shall calculate the interest rate applicable to and the amount
of interest payable on and, if so specified in the Subject Notes, the principal
payable on each Subject Note for which it is Calculation Agent, and communicate
the same to the Issuer and the Indenture Trustee upon the terms and conditions
contained herein. The Issuer shall cause the Indenture Trustee to provide the
Calculation Agent with not less than two, but not more than ten Business Days'
notice of each Calculation Date on which an interest or principal calculation is
to be made by the Calculation Agent, and the Calculation Agent shall notify the
Indenture Trustee by telephone or facsimile of the applicable interest rate,
amount of interest and/or principal payable, as applicable, with respect to each
Subject Note to which such Calculation Date relates and shall confirm such
calculation in writing within 24 hours after so notifying the Indenture Trustee.
<PAGE>
(b) The calculation of the interest rates applicable to any Subject
Note shall be determined by reference to the terms and conditions specified in
the related Subject Note supplied to the Calculation Agent. In no event shall
any such interest rate be less than the specified minimum interest rate, if any,
or higher than the specified maximum interest rate, if any, designated in the
applicable Subject Note and in no event shall any interest rate be higher than
the maximum rate permitted by New York law as the same may be modified by United
States law of general application. The Calculation Agent shall, if applicable,
calculate the amount of interest payable on each Subject Note in the manner and
at the times specified in the related Subject Note supplied to the Calculation
Agent.
(c) If so specified in any Subject Note, the Calculation Agent shall
calculate the principal amount as specified in such Subject Note supplied to the
Calculation Agent.
(d) As soon as practicable after each Calculation Date, if any, the
Calculation Agent will cause to be forwarded to the Issuer and the Indenture
Trustee information regarding the interest rates, the interest periods, the
amount of interest for each interest period, the relevant Interest Payment Dates
and, if applicable (as specified in the related Subject Note), principal for the
relevant Maturity of the Subject Note.
Section 3. STATUS OF CALCULATION AGENT. Any acts taken by the Calculation
Agent in such capacity under this Agreement or in connection with any Subject
Note, including, specifically, but without limitation, the calculation of any
principal amount, interest rate or interest amount, shall be deemed to have been
taken by the Calculation Agent solely in its capacity as an agent acting on
behalf of the Issuer and shall not create or imply any obligation to, or any
agency or trust relationship with, any owner or holder of any Note.
Section 4. FEES AND EXPENSES. The Calculation Agent shall be entitled to
such compensation for its services rendered under this Agreement as may be
agreed upon with the Issuer, and the Issuer shall pay such compensation and
shall reimburse the Calculation Agent for all reasonable out-of-pocket expenses,
disbursements and advances (including reasonable legal fees and expenses)
incurred or made by the Calculation Agent in connection with the entering into,
and the services rendered by it under, this Agreement upon receipt of such
invoices as the Issuer may reasonably require.
Section 5. RIGHTS AND LIABILITIES OF THE CALCULATION AGENT.
The Calculation Agent, its directors, officers, employees and agents shall incur
no liability for, or in respect of, any action taken or omitted to be taken, or
suffered by it in reliance upon any Subject Note, written instruction, notice,
request, direction, certificate, consent, report, affidavit, statement, order or
other instrument, paper, document or communication reasonably believed by it in
good faith to be genuine, except in the case of its or their negligence or
willful misconduct. Any Subject Note, written instruction, notice, request,
direction, certificate, consent, report, affidavit, statement, order or other
instrument, paper, document or communication from the Issuer or given by it and
sent, delivered or directed to the Calculation Agent under, pursuant to, or as
permitted by, any provision of this Agreement shall be sufficient for purposes
of this Agreement if it is in writing and signed by any authorized
representative of the Issuer, as may be specified from time to time by the
Issuer. The Calculation Agent may conclusively rely, as to the truth of the
statements expressed therein, upon
2
<PAGE>
any Subject Note, written instruction, notice, request, direction, certificate,
consent, report, affidavit, statement, order and/or other instrument, paper,
document or communication, reasonably believed by it in good faith to be
genuine, from the Issuer or given by it and sent, delivered or directed to the
Calculation Agent and conforming to the requirements of this Agreement, and the
Calculation Agent may rely and shall be protected in acting upon any such
Subject Note, written instruction, notice, request, direction, certificate,
consent, report, affidavit, statement, order or other instrument, paper,
document or communication. The Calculation Agent may consult with counsel
satisfactory to it and the advice of such counsel shall constitute full and
complete authorization and protection of the Calculation Agent with respect to
any action taken or omitted to be taken or suffered by it hereunder in good
faith and in accordance with and in reliance upon the advice of such counsel.
The Calculation Agent shall not be liable for any error resulting from the use
of or reliance on a source, data service, bid or offered rate or publication
required to be used by any Subject Note, this Agreement or any other related
document. Neither the Calculation Agent nor its directors, officers, employees
or agents shall be liable to the Issuer for any act or omission hereunder,
except in the case of its or their negligence or willful misconduct. No party
shall be liable for any default resulting from force majeure, which shall be
deemed to include any circumstances beyond the reasonable control of the party
affected.
Section 6. DUTIES OF CALCULATION AGENT. The Calculation Agent shall be
obligated to perform only such duties as are specifically set forth herein and
no other duties, covenants or obligations on the part of the Calculation Agent,
in its capacity as such, shall be implied by this Agreement.
Section 7. TERMINATION, RESIGNATION OR REMOVAL OF THE CALCULATION AGENT.
The Calculation Agent may at any time terminate this Agreement by giving
written notice to the Issuer and the Indenture Trustee specifying the date on
which its desired resignation shall become effective, provided that such
notice shall be given no less than three months prior to said effective date
unless the Calculation Agent and Issuer otherwise agree in writing. The
Issuer may terminate this Agreement at any time by giving written notice to
the Calculation Agent and specifying the effective date of such termination.
No termination by either the Calculation Agent or the Issuer shall become
effective prior to the date of the appointment by the Issuer of a successor
Calculation Agent for the Subject Notes which are the subject of this
Agreement and the acceptance of such appointment by such successor
Calculation Agent as provided in Section 8 hereof. Upon termination by either
party pursuant to the provisions of this Section, the Calculation Agent shall
be entitled to the payment of any compensation owed to it by the Issuer
hereunder and to the reimbursement of all reasonable expenses incurred in
connection with the services rendered by it hereunder, as provided by Section
4 hereof. The provisions of Section 9 hereof shall remain in effect
following termination by either party.
Section 8. APPOINTMENT OF SUCCESSOR CALCULATION AGENT. In the event of
notice of termination of this Agreement by the Calculation Agent or the Issuer
pursuant to Section 7 hereof, the Issuer shall promptly appoint a successor
Calculation Agent for the Subject Notes. Any such successor Calculation Agent
appointed by the Issuer following termination of this Agreement pursuant to the
provisions of Section 7 hereof shall execute and deliver to the original
Calculation Agent, the Issuer and the Indenture Trustee an instrument accepting
such appointment. Thereupon, such successor Calculation Agent shall, without
any further act, deed or conveyance, become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of the Calculation
3
<PAGE>
Agent and with like effect as if originally named as Calculation Agent
hereunder, and the original Calculation Agent shall thereupon be obligated to
transfer and deliver such relevant records or copies thereof maintained by the
Calculation Agent in connection with the performance of its obligations
hereunder.
Section 9. INDEMNIFICATION. The Issuer shall indemnify and hold harmless
the Calculation Agent, its directors, officers, employees and agents from and
against all actions, claims, damages, liabilities, judgments, costs, charges,
losses and expenses (including reasonable legal fees and expenses) relating to
or arising out of actions or omissions in any capacity hereunder, except
actions, claims, damages, liabilities, judgments, costs, charges, losses and
expenses caused by the negligence or willful misconduct of the Calculation
Agent, its directors, officers, employees or agents. The Calculation Agent, its
directors, officers, employees and agents shall incur no liability and shall be
indemnified and held harmless by the Issuer for any error resulting from use of
or reliance on a source or publication required to be used by any Subject Note,
this Agreement or any other related document, except in the case of its
negligence or willful misconduct. The Calculation Agent, its directors,
officers, employees and agents shall incur no liability and shall be indemnified
and held harmless by the Issuer for, or in respect of, any actions taken,
omitted to be taken or suffered to be taken in good faith by the Calculation
Agent in reliance upon (i) a written opinion of counsel or (ii) a written
instruction from the Issuer, except in the case of its negligence or willful
misconduct.
Section 10. MERGER, CONSOLIDATION OR SALE OF BUSINESS BY THE CALCULATION
AGENT. Any corporation into which the Calculation Agent may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Calculation Agent may be a party or any corporation to which the
Calculation Agent may sell or otherwise transfer all or substantially all of its
assets and business, shall, to the extent permitted by applicable law, become
the Calculation Agent under this Agreement without the execution or filing of
any paper or any further act by the parties hereto. Notice in writing of any
such merger, consolidation or sale shall be given to the Issuer and to the
Indenture Trustee.
Section 11. NOTICES. Any notice or other communication required to be
given hereunder shall be delivered in person, sent by letter, telecopy or telex
or communicated by telephone (subject, in the case of communication by
telephone, to written confirmation dispatched within 24 hours) to the addresses
given below or such other address as each party hereto may have subsequently
notified:
4
<PAGE>
To the Issuer:
Toyota Motor Credit Corporation
19001 South Western Avenue
Torrance, California 90509
Attention: Treasury Department
Telecopier: (310) 787-6194
Telephone: (310) 787-6195
To the Indenture Trustee:
U.S. Bank National Association
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Attention: Corporate Trust Office
Telecopier: (312) 228-9400
Telephone: (312) 228-9401
To the Calculation Agent:
U.S. Bank National Association
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Attention: Corporate Trust Office
Telecopier: (312) 228-9400
Telephone: (312) 228-9401
Any notice hereunder given by letter, telecopy or telex shall be deemed to have
been received when it would have been received in the ordinary course of post or
transmission, as the case may be.
Section 12. BENEFIT OF AGREEMENT. Except as provided herein, this
Agreement is solely for the benefit of the parties hereto and their successors
and assigns and no other person shall acquire or have any rights under or by
virtue hereof. The terms "successors" and "assigns" shall not include any
purchaser of any Subject Note merely because of such purchase.
Section 13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of New York applicable to
agreements entered into and performed in such State.
Section 14. SEVERABILITY. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable
as applied in any particular case in any or all jurisdictions because it
conflicts with any provision of any constitution, statute, rule or public policy
or for any other reason, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or
5
<PAGE>
of rendering any other provision or provisions of this Agreement invalid,
inoperative or unenforceable, to any extent whatsoever.
Section 15. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 16. AMENDMENTS. This Agreement may be amended by any instrument
in writing signed and delivered by each of the parties hereto.
Section 17. OWNERSHIP OF NOTES. The Calculation Agent, its officers,
directors, employees and shareholders may become the owners of or acquire any
interest in any Notes, with the same rights that it or they would have if it
were not the Calculation Agent, and may engage or be interested in any financial
or other transaction with the Issuer as freely as if it were not the Calculation
Agent.
Section 18. CONFLICTS WITH OTHER AGREEMENTS. In any conflict relating to
the rights or obligations of the Calculation Agent in connection with
calculation of the interest on the Subject Notes, the terms of this Agreement
shall govern such rights and obligations.
Section 19. DELIVERY OF SUBJECT NOTES. The Issuer shall promptly deliver
to the Calculation Agent the form of each Subject Note covered by this Agreement
and any other documents or information necessary for the Calculation Agent to
perform its duties hereunder.
6
<PAGE>
IN WITNESS WHEREOF, this Agreement has been entered into the day and year
written above.
TOYOTA MOTOR CREDIT CORPORATION
By: /s/ George Borst
----------------------------------------
Name: George Borst
Title: Senior Vice President and
General Manager
U.S. BANK NATIONAL ASSOCIATION
as Calculation Agent
By: /s/ Steven E. Charles
----------------------------------------
Name: Steven E. Charles
Title: Vice President
A-1
<PAGE>
Execution Copy
- --------------------------------------------------------------------------------
TOYOTA LEASING, INC.
AND
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
TOYOTA AUTO LEASE TRUST 1997-A
AUTO LEASE ASSET-BACKED CERTIFICATES
1997-A SECURITIZATION TRUST AGREEMENT
DATED AS OF SEPTEMBER 1, 1997
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.02. Article and Section References. . . . . . . . . . . . . . . 2
ARTICLE TWO
CREATION OF TRUST
Section 2.01. Creation of Trust . . . . . . . . . . . . . . . . . . . . . 2
Section 2.02. Conveyance of 1997-A SUBI . . . . . . . . . . . . . . . . . 3
Section 2.03. Acceptance by Trustee . . . . . . . . . . . . . . . . . . . 3
ARTICLE THREE
ALLOCATIONS AND DISTRIBUTIONS; RESERVE FUND;
STATEMENTS TO CERTIFICATEHOLDERS
Section 3.01. Allocations and Distributions . . . . . . . . . . . . . . . 4
Section 3.02. 1997-A SUBI Certificateholders' Account; Reserve Fund . . . 11
Section 3.03. Statements to Certificateholders. . . . . . . . . . . . . . 13
ARTICLE FOUR
THE CERTIFICATES
Section 4.01. The Certificates. . . . . . . . . . . . . . . . . . . . . . 16
Section 4.02. Authentication and Delivery of Certificates.. . . . . . . . 17
Section 4.03. Registration of Transfer and Exchange of Certificates.. . . 17
Section 4.04. Mutilated, Destroyed, Lost or Stolen Certificates.. . . . . 20
Section 4.05. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . 21
Section 4.06. Access to List of Certificateholders' Names and Addresses . 21
Section 4.07. Maintenance of Office or Agency . . . . . . . . . . . . . . 22
Section 4.08. Temporary Certificates. . . . . . . . . . . . . . . . . . . 22
Section 4.09. Book-Entry Certificates . . . . . . . . . . . . . . . . . . 23
Section 4.10. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 4.11. Definitive Certificates . . . . . . . . . . . . . . . . . . 24
Section 4.12. Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . 25
Section 4.13. ERISA Matters . . . . . . . . . . . . . . . . . . . . . . . 26
i
<PAGE>
ARTICLE FIVE
THE TRANSFEROR
Section 5.01. Representations of Transferor . . . . . . . . . . . . . . . 26
Section 5.02. Liability of Transferor; Indemnities. . . . . . . . . . . . 28
Section 5.03. Merger or Consolidation of, or Assumption of the
Obligations of, Transferor; Certain Limitations.. . . . . . 29
Section 5.04. Limitation on Liability of Transferor and Others. . . . . . 31
Section 5.05. Transferor May Own Investor Certificates. . . . . . . . . . 31
Section 5.06. No Transfer . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 5.07. Tax Matters Partner . . . . . . . . . . . . . . . . . . . . 32
ARTICLE SIX
THE 1997-A SECURITIZATION TRUSTEE
Section 6.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . 32
Section 6.02. Certain Matters Affecting the 1997-A Securitization
Trustee.. . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 6.03. Trustee Not Liable for Certificates or Contracts. . . . . . 36
Section 6.04. Trustee May Own Certificates. . . . . . . . . . . . . . . . 37
Section 6.05. Trustee's Fees and Expenses . . . . . . . . . . . . . . . . 37
Section 6.06. Eligibility Requirements for Trustee. . . . . . . . . . . . 37
Section 6.07. Resignation or Removal of Trustee . . . . . . . . . . . . . 38
Section 6.08. Successor Trustee . . . . . . . . . . . . . . . . . . . . . 39
Section 6.09. Merger or Consolidation of Trustee. . . . . . . . . . . . . 39
Section 6.10. Appointment of Co-Trustee or Separate Trustee.. . . . . . . 40
Section 6.11. Representations and Warranties of Trustee . . . . . . . . . 41
Section 6.12. Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.13. Trustee May Enforce Claims Without Possession of
Certificates. . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.14. Suit for Enforcement. . . . . . . . . . . . . . . . . . . . 43
Section 6.15. Rights of Certificateholders to Direct Trustee. . . . . . . 43
Section 6.16. No Petition . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE SEVEN
TERMINATION
Section 7.01. Termination of the 1997-A Securitization Trust. . . . . . . 44
Section 7.02. Optional Purchase of 1997-A SUBI. . . . . . . . . . . . . . 46
ii
<PAGE>
ARTICLE EIGHT
EARLY AMORTIZATION EVENTS
Section 8.01. Early Amortization Events . . . . . . . . . . . . . . . . . 46
Section 8.02. Additional Rights Upon the Occurrence of Certain Events . . 49
ARTICLE NINE
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 9.02. Protection of Title to Trust. . . . . . . . . . . . . . . . 52
Section 9.03. Limitation on Rights of Certificateholders. . . . . . . . . 53
Section 9.04. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.05. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.06. Severability of Provisions; Counterparts. . . . . . . . . . 55
Section 9.07. Assignment. . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 9.08. Certificates Nonassessable and Fully Paid . . . . . . . . . 55
ARTICLE TEN
AGENT FOR SERVICE
Section 10.01. Agent for Service of Transferor. . . . . . . . . . . . . . 56
Section 10.02. Agent of Trustee . . . . . . . . . . . . . . . . . . . . . 56
iii
<PAGE>
EXHIBITS:
Exhibit A-1 - Form of Class A-1 Certificate . . . . . . . A-1
Exhibit A-2 - Form of Class A-2 Certificate . . . . . . . A-2
Exhibit A-3 - Form of Class A-3 Certificate . . . . . . . A-3
Exhibit B - Form of Class B Certificate . . . . . . . . B-1
Exhibit C - Form of Transferor Certificate . . . . . . . C-1
Exhibit D - Form of Transferee Certificate . . . . . . D-1-1
Exhibit E - Form of Non-144A Transferee Certificate. . . E-1
iv
<PAGE>
1997-A SECURITIZATION TRUST AGREEMENT
THIS 1997-A SECURITIZATION TRUST AGREEMENT, dated as of September 1, 1997, is
made with respect to the formation of the TOYOTA AUTO LEASE TRUST 1997-A (the
"1997-A SECURITIZATION TRUST"), between TOYOTA LEASING, INC. a California
corporation ("TLI" or, in its capacity as transferor hereunder, the
"Transferor"), and U.S. BANK NATIONAL ASSOCIATION, as trustee (the "1997-A
SECURITIZATION TRUSTEE").
RECITALS
A. The Toyota Lease Trust (the "Titling Trust") is governed by the
Amended and Restated Trust and Servicing Agreement dated as of October 1, 1996
(the "Titling Trust Agreement") among Toyota Motor Credit Corporation, a
California corporation, as grantor, initial beneficiary and servicer ("TMCC" and
in its capacity as servicer, the "Servicer"), TMTT, Inc., a Delaware
corporation, as trustee (the "TITLING TRUSTEE") and, for the limited purposes
stated therein, U.S. Bank National Association, a national banking association,
as trust agent ("U.S. BANK"). Pursuant to the Co-Trustee Agreement, Delaware
Trust Capital Management, Inc. will act as co-trustee of the Titling Trust. The
Titling Trust acquires and holds title to various automobiles, light-duty
trucks, related lease contracts and certain other assets in accordance with the
terms of the Titling Trust Agreement. Capitalized terms used and not defined in
these Recitals have the meanings given in Article I below.
B. Concurrently herewith, TMCC, the Titling Trustee and U.S. Bank have
entered into the 1997-A SUBI Supplement to the Titling Trust Agreement dated as
of September 1, 1997 (the "1997-A SUBI Supplement") pursuant to which the
Titling Trust, at the direction of TMCC, will create and issue a special unit of
beneficial interest in the Titling Trust (the "1997-A SUBI"), whose
beneficiaries generally will be entitled to the net cash flow arising from the
related SUBI Portfolio (such SUBI Portfolio, the "1997-A SUBI Portfolio"). The
1997-A SUBI will be evidenced by one SUBI Certificate representing the entire
beneficial interest in the 1997-A SUBI (the "1997-A SUBI Certificate").
C. Concurrently herewith, the Titling Trustee (on behalf of the Titling
Trust) and the Servicer also have entered into a 1997-A SUBI Servicing
Supplement to the Titling Trust Agreement dated as of September 1, 1997 (the
"1997-A SUBI Servicing Supplement"), pursuant to which the terms of the Titling
Trust Agreement will be supplemented insofar as they apply to the 1997-A SUBI
Portfolio,
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providing for further servicing obligations that will benefit the holders of the
1997-A SUBI Certificate.
D. Concurrently herewith, TMCC and the Transferor have entered into the
1997-A SUBI Certificate Purchase and Sale Agreement dated as of September 1,
1997 (the "SUBI Certificate Agreement"), pursuant to which TMCC sold to the
Transferor, without recourse, all of TMCC's right, title and interest in and to
the 1997-A SUBI and the 1997-A SUBI Certificate, all monies due thereon and the
right to realize on any property subject to the 1997-A SUBI, and all proceeds
thereof, for the consideration stated therein.
E. The parties desire to enter into this 1997-A Securitization Trust
Agreement to create the 1997-A Securitization Trust, to provide for the issuance
by the 1997-A Securitization Trust of certain Certificates and to provide for
the exchange of those Certificates for the 1997-A SUBI Certificate (excluding
all rights in the Residual Value Insurance Policy evidenced by the 1997-A SUBI
Certificate) in connection with a Securitized Financing by the Transferor.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS.
For all purposes of this 1997-A Securitization Trust Agreement, except as
otherwise expressly provided or unless the context otherwise requires, (a)
unless otherwise defined herein, all capitalized terms used herein shall have
the meanings attributed to them in the Annex of Definitions attached to the
Titling Trust Agreement or the Annex of Supplemental Definitions attached to the
1997-A SUBI Supplement, (b) defined terms include (i) all genders and (ii) the
plural as well as the singular, (c) all references to words such as "herein",
"hereof" and the like shall refer to this 1997-A Securitization Trust Agreement
as a whole and not to any particular article or section within this 1997-A
Securitization Trust Agreement, (d) the term "include" and all variations
thereon shall mean "include without limitation", and (e) the term "or" shall
include "and/or".
SECTION 1.02. ARTICLE AND SECTION REFERENCES.
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Except as otherwise specified herein, all article and section references
shall be to Articles and Sections in this 1997-A Securitization Trust Agreement.
ARTICLE TWO
CREATION OF TRUST
SECTION 2.01. CREATION OF TRUST.
Upon the execution of this 1997-A Securitization Trust Agreement by the
parties hereto, there is hereby created the Toyota Auto Lease Trust 1997-A.
SECTION 2.02. CONVEYANCE OF 1997-A SUBI.
In consideration of the 1997-A Securitization Trustee's delivery to, or
upon the order of, the Transferor of executed and authenticated Investor
Certificates, in authorized denominations, in an aggregate amount equal to the
Initial Certificate Balance, and of the executed and authenticated Transferor
Certificate, the Transferor does hereby transfer, assign and otherwise convey to
the 1997-A Securitization Trustee, in trust for the benefit of the
Certificateholders, to the full extent of the Transferor's interest therein,
without recourse (subject to the Transferor's obligations herein):
(i) all right, title and interest of the Transferor in and to the
1997-A SUBI and the 1997-A SUBI Certificate evidencing the 1997-A SUBI and
all monies due thereon and paid thereon or in respect thereof;
(ii) the right to realize upon any property that may be deemed to
secure the 1997-A SUBI;
(iii) all rights accruing to the holder of the 1997-A SUBI under the
Titling Trust Agreement, the 1997-A SUBI Supplement and the 1997-A SUBI
Servicing Supplement; and
(iv) all proceeds of the foregoing;
PROVIDED that all monies and payments due or payable under any Residual Value
Insurance Policy applicable to the 1997-A Leased Vehicles and the 1997-A
Contracts and the right to receive such payments and monies are retained by the
Transferor and are not hereby transferred, assigned or otherwise conveyed to the
1997-A Securitization Trustee.
The Transferor also does hereby grant to the 1997-A Securitization Trustee
a security interest in all of the foregoing (exclusive of the monies and
payments referred to in the preceding PROVISO), and the 1997-A Securitization
Trustee shall have all the
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rights, powers and privileges thereto and therein of a secured party under the
UCC.
SECTION 2.03. ACCEPTANCE BY TRUSTEE.
The 1997-A Securitization Trustee does hereby accept all consideration
conveyed by the Transferor pursuant to Section 2.02 and declares that the 1997-A
Securitization Trustee shall hold such consideration in trust as herein set
forth for the benefit of the Certificateholders, subject to the terms and
provisions of this 1997-A Securitization Trust Agreement.
ARTICLE THREE
ALLOCATIONS AND DISTRIBUTIONS; RESERVE FUND;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 3.01. ALLOCATIONS AND DISTRIBUTIONS.
(a) On each Determination Date, pursuant to Section 4.02(g) of the
1997-A SUBI Servicing Supplement, the Servicer shall calculate the amounts to be
allocated or distributed to the holder of the 1997-A SUBI Certificate, the Class
A-1 Distributable Amount, the Class A-2 Distributable Amount, the Class A-3
Distributable Amount, the Class B Distributable Amount, the Transferor
Distributable Amount, and all other allocations or distributions to be made on
the related Monthly Allocation Date and Certificate Payment Date. On each
Monthly Allocation Date, the 1997-A Securitization Trustee shall make the
allocations and distributions called for in this Section 3.01. If funds are to
be deposited into the 1997-A SUBI Certificateholders' Account, the 1997-A
Securitization Trustee shall make such deposit from the applicable amounts in
the 1997-A SUBI Collection Account or the Reserve Fund, as applicable, to the
extent that net investment earnings on funds in the 1997-A SUBI
Certificateholders' Account applied as provided in the third paragraph of
Section 3.02(a) are insufficient therefor. If amounts are to be distributed to
Certificateholders, the Transferor or other Persons, such distributions will be
made first from the Interest Collections portion of Available Interest and then
(to the extent necessary) from the net investment income portion of Available
Interest, and in each case subject to all applications thereof pursuant to
clauses with higher priority, such that such distributions are made directly
from the 1997-A SUBI Collection Account to the extent possible and from the
1997-A SUBI Certificateholders' Account to the extent necessary.
(b) On each Monthly Allocation Date, based on the Servicer's
Certificate prepared by the Servicer, the 1997-A Securitization Trustee shall
allocate or distribute from the 1997-A SUBI Collection Account and the 1997-A
SUBI Certificateholders'
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Account, as applicable, the Available Interest in the following amounts and in
the following order of priority to the following accounts and Persons:
(i) in the event of an Early Amortization Event involving an
Insolvency Event, as a result of the 1997-A Securitization Trustee having
elected or having received written instructions from holders of
Certificates evidencing Voting Interests of not less than 51% of the Class
A Certificates (voting together as a single class) or 51% of the Class A
Certificates and Class B Certificates (voting together as a single class)
to sell or dispose of the property of the 1997-A Securitization Trust
pursuant to Section 8.02(a), to the 1997-A Securitization Trustee, the
Investor Percentage of Capped Securitization Trust Administrative Expenses;
(ii) to the 1997-A SUBI Certificateholders' Account first from the
net investment income portion of Available Interest, and then from the
Interest Collections portion of Available Interest to the extent necessary,
until there has been deposited therein pursuant to this clause (ii), the
Class A-1 Interest Distributable Amount and any unpaid Class A-1 Interest
Carryover Shortfall, the Class A-2 Interest Distributable Amount and any
Class A-2 Interest Carryover Shortfall and the Class A-3 Interest
Distributable Amount and any Class A-3 Interest Carryover Shortfall;
(iii) to the 1997-A SUBI Certificateholders' Account until there has
been deposited therein pursuant to this clause (iii), the Class B Interest
Distributable Amount, together with any unpaid Class B Interest Carryover
Shortfall;
(iv) to the Servicer, (a) the Investor Percentage of the Servicing
Fee for the related Collection Period and (b) any unpaid portion of the
Investor Percentage of the Servicing Fee in respect of any prior Collection
Period;
(v) to the Servicer, the Investor Percentage of the Capped
Contingent and Excess Liability Premiums that have not yet been reimbursed
to the Servicer;
(vi) to the Titling Trustee, the Investor Percentage of Capped
Titling Trust Administrative Expenses;
(vii) in circumstances other than those set forth in clause (i), to
the 1997-A Securitization Trustee, the Investor Percentage of Capped
Securitization Trust Administrative Expenses for the preceding Collection
Period;
(viii) to the 1997-A SUBI Certificateholders' Account until there has
been deposited therein pursuant to this clause (viii), the aggregate Loss
Amount allocated to the Class A
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Certificates on such Monthly Allocation Date plus the aggregate amount of
Certificate Principal Loss Amounts allocated to the Class A Certificates on
prior Monthly Allocation Dates that have not been previously reimbursed or
deposited in the 1997-A SUBI Certificateholders' Account (whether from
Available Interest or from amounts applied pursuant to Section 3.01(e));
(ix) to the 1997-A SUBI Certificateholders' Account until there has
been deposited therein pursuant to this clause (ix), (A) the amount, if
any, of (a) accrued and unpaid interest to but excluding such Monthly
Allocation Date at the Class B Rate on any Certificate Principal Loss
Amounts previously allocated to the Class B Certificates and not yet
reimbursed and then (b) the aggregate amount of Loss Amounts allocated to
the Class B Certificateholders on such Monthly Allocation Date plus the
aggregate amount of Certificate Principal Loss Amounts allocated to the
Class B Certificates on any prior Monthly Allocation Date, in each case to
the extent not previously reimbursed pursuant to this clause (ix) (whether
from Available Interest or from amounts applied pursuant to Section
3.01(e)) and then (c) the amount, if any, of Class B Available Principal
applied to fund interest shortfalls, Loss Amounts or Certificate Principal
Loss Amounts allocated to the Class A Certificates on any Monthly
Allocation Date and not previously paid or deposited in the 1997-A SUBI
Certificateholders' Account pursuant to this clause (ix) (whether from
Available Interest or from amounts applied pursuant to Section 3.01(e));
(x) into the Reserve Fund until the amount on deposit therein equals
the Specified Reserve Fund Balance;
(xi) to the Servicer, the Investor Percentage of the amount necessary
to reimburse it for the advance of Capped Titling Trust Administrative
Expenses, Capped Securitization Trust Administrative Expenses and Uncapped
Titling Trust Administrative Expenses actually advanced by the Servicer
pursuant to Section 4.06 of the 1997-A SUBI Servicing Supplement and not
yet reimbursed.
(xii) to the Titling Trustee, the Investor Percentage of Uncapped
Titling Trust Administrative Expenses;
(xiii) to the 1997-A Securitization Trustee, the Investor Percentage
of Uncapped Securitization Trust Administrative Expenses and;
(xiv) the balance, if any, shall constitute Excess Amounts and shall
be applied as set forth in subsection (c) below; provided, however, that in
the event the Servicer is required to deliver the certifications as
specified in Section
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5.03(b) of the 1997-A SUBI Servicing Supplement, such Excess Amount shall
be retained in the Reserve Fund until such time as the Servicer is no
longer required to deliver such certifications, notwithstanding whether or
not the then applicable Specified Reserve Fund Balance has been met.
Notwithstanding the foregoing, on any Monthly Allocation Date related to a
Collection Period in the Revolving Period, the amounts set forth in clause
(viii) above and the amounts applied to Loss Amounts and Certificate Principal
Loss Amounts allocated to the Class B Certificates and Class B Available
Principal in clause (ix) above shall not be deposited in the 1997-A SUBI
Certificateholders' Account, but shall be treated as and be deemed to be
Principal Collections that are part of the Investor Percentage of Principal
Collections for purposes of Section 3.02 of the 1997-A SUBI Servicing Supplement
and this Section 3.01. On any Monthly Allocation Date related to a Collection
Period in the Amortization Period, such amounts shall be treated as and be
deemed to be Principal Collections that are part of the Investor Percentage of
Principal Collections and shall be deposited into the 1997-A SUBI
Certificateholders' Account. Pursuant to the definition of "Class Certificate
Balance", such amounts allocable to a Class of Investor Certificates have the
effect of restoring the Class Certificate Balance of such Class to the extent of
the reimbursement represented by such amounts.
On each Certificate Payment Date in March and September, commencing in
March 1998, or if a Monthly Payment Event has occurred and the Amortization
Period has commenced, then on each Certificate Payment Date thereafter, the
1997-A Securitization Trustee shall distribute to the holders of Investor
Certificates of each Class the amounts allocable to interest accrued in respect
of the Investor Certificates and deposited in the 1997-A SUBI
Certificateholders' Account for such Class pursuant to the preceding clauses of
this Section 3.01(b) and in the following order of priority: (ii), (iii) and
(ix); provided that if the amount available pursuant to clause (ii) is less than
the full amount due to be distributed pursuant to such clause, then such
available amount shall be distributed to the Class A-1 Certificateholders, the
Class A-2 Certificateholders and the Class A-3 Certificateholders PRO RATA on
the basis of the full amounts due them pursuant to such clause.
(c) On each Monthly Allocation Date, based on the Servicer's
Certificate prepared by the Servicer, the 1997-A Securitization Trustee shall
distribute or allocate any Excess Amounts as follows:
(i) if the Monthly Allocation Date relates to a Collection Period in
the Revolving Period, any remainder to the Transferor, and
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(ii) if the Monthly Allocation Date relates to a Collection Period in
the Amortization Period, any remainder up to but not exceeding the
Accelerated Principal Distribution Amount to the 1997-A SUBI
Certificateholders= Account as additional principal with the balance of any
remainder then distributed to the Transferor.
(d)(i) On each Monthly Allocation Date beginning with the Monthly
Allocation Date related to the Collection Period in which the Amortization
Period commences and ending on the Monthly Allocation Date that is the
Certificate Payment Date on which the Certificate Balance of all Classes of
Investor Certificates (after giving effect to any reimbursements of Certificate
Principal Loss Amounts and any reimbursements of Class B Available Principal
applied pursuant to section 3.01(e)) has been reduced to zero, based on the
Servicer's Certificate prepared by the Servicer, the 1997-A Securitization
Trustee shall withdraw from the 1997-A SUBI Collection Account and deposit in
the 1997-A SUBI Certificateholders= Account an amount equal to the Investor
Percentage of all Principal Collections collected or received in respect of the
related Collection Period allocable to the 1997-A SUBI, less amounts applied in
reimbursement of Advances, Nonrecoverable Advances or Maturity Advances.
(ii) If a Monthly Payment Event has not occurred, the 1997-A
Securitization Trustee, based on the Servicer's Certificate prepared by the
Servicer, shall distribute to holders of the Investor Certificates of each Class
on the Targeted Maturity Date for such Class of Investor Certificates the lesser
of (x) the entire Class Certificate Balance of such Class of Investor
Certificates (after giving effect to any reimbursements of Certificate Principal
Loss Amounts and any reimbursements of Class B Available Principal applied
pursuant to Section 3.01(e)) and (y) the sum of the amount of Principal
Collections and the Accelerated Principal Distribution Amounts on deposit in the
1997-A SUBI Certificateholders' Account and any Maturity Advance actually made
by the Servicer in respect of such Class of Investor Certificates pursuant to
Section 4.05 of the 1997-A SUBI Servicing Supplement.
(iii) If on the Targeted Maturity Date for any Class of Investor
Certificates the entire Class Certificate Balance of such Class of Investor
Certificates is not distributed, then the 1997-A Securitization Trustee shall,
based on the Servicer's Certificate, distribute to the holders of such Class of
Investor Certificates on each following Monthly Allocation Date, until the Class
Certificate Balance of such Class of Investor Certificates(after giving effect
to any reimbursements of Certificate Principal Loss Amounts and any
reimbursements of Class B Available Principal applied pursuant to section
3.01(e))has been reduced to zero (I) the lesser of (x) the Class Certificate
Balance of such Class of Investor Certificates and (y) the amount of Principal
Collections, the Accelerated Principal Distribution Amount and any Maturity
Advance actually
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made by the Servicer in respect of such Class on deposit in the 1997-A SUBI
Collection Account or in the 1997-A SUBI Certificateholders' Account on such
Monthly Allocation Date and (II) the amount of interest on deposit in the 1997-A
SUBI Certificateholders' Account or the 1997-A SUBI Collection Account and
allocated to such Class of Investor Certificates pursuant to Section 3.01(b) in
respect of such Monthly Allocation Date. If at any one time the preceding
sentence is applicable to more than one Class of Investor Certificates, then the
application of Principal Collections, the Accelerated Principal Distribution
Amount and Maturity Advance provided for in such sentence shall be made to the
Class of Investor Certificates with the earliest Targeted Maturity Date until
the Class Certificate Balance of such Class of Investor Certificates (after
giving effect to any reimbursements of Certificate Principal Loss Amounts and
any reimbursements of Class B Available Principal applied pursuant to section
3.01(e)) has been reduced to zero.
(iv) If a Monthly Payment Event occurs, then on each succeeding Monthly
Allocation Date in the Amortization Period (other than the Monthly Allocation
Date in the month in which the Monthly Payment Event occurs), the 1997-A
Securitization Trustee shall, based on the Servicer's Certificate for such
Monthly Allocation Date, allocate or distribute the sum of the Investor
Percentage of Principal Collections, the Accelerated Principal Distribution
Amount and the Maturity Advance actually made by the Servicer in respect of any
Class of Certificates in the following order of priority:
(1) to the Class A-1 Certificateholders until the Class A-1
Certificate Balance (after giving effect to any reimbursements of Certificate
Principal Loss Amounts allocated thereto) is reduced to zero;
(2) to the Class A-2 Certificateholders until the Class A-2
Certificate Balance (after giving effect to any reimbursements of Certificate
Principal Loss Amounts allocated thereto) is reduced to zero;
(3) to the Class A-3 Certificateholders until the Class A-3
Certificate Balance (after giving effect to any reimbursements of Certificate
Principal Loss Amounts allocated thereto) is reduced to zero;
(4) to the Class B Certificateholders until the Class B Certificate
Balance (after giving effect to any reimbursements of Certificate Principal Loss
Amounts allocated thereto and reimbursements of Class B Available Principal
applied pursuant to Section 3.01(e)) is reduced to zero.
(v) If (x) the Class Certificate Balance of any Class of Investor
Certificates has been reduced to zero, but there remain
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unreimbursed Certificate Principal Loss Amounts previously allocated to such
Class of Investor Certificates or, in the case of Class B Certificates,
unreimbursed Class B Available Principal, and (y) on any Monthly Allocation Date
amounts are allocated pursuant to clause (viii) or (ix), as applicable, of
Section 3.01(b) in reimbursement of such Certificate Principal Loss Amounts or
Class B Available Principal (which reimbursement has the effect of restoring the
Class Certificate Balance of such Class of Investor Certificates to the extent
of such reimbursement), then on such Monthly Allocation Date the 1997-A
Securitization Trustee shall, based on a Servicer's Certificate, distribute to
the Holders of such Class of Investor Certificates such allocated reimbursement
amount.
(e) On each Monthly Allocation Date for which there is a Required
Amount, based on the Servicer's Certificate prepared by the Servicer, the 1997-A
Securitization Trustee shall apply the following amounts in the following order
of priority to the payment of the unpaid components of the Required Amount to
the extent necessary to pay such components:
(i) the Reserve Fund Withdrawal Amount to the extent of any unpaid
components in clauses (ii), (iii), (viii) and (ix) in Section 3.01(b) in
that order; provided that the Class B Interest Reserve Amount shall be
applied only to pay accrued and unpaid interest in respect of the Class B
Certificates;
(ii) to the extent of any remaining unpaid components of the Required
Amount in clauses (i) through (ix) of Section 3.01(b), first the Transferor
Interest Distributable Amount and then the Transferor Principal
Distributable Amount in the order of clauses (i) through (ix) in Section
3.01(b); and
(iii) to the extent of any remaining unpaid components of the
Required Amount in clauses (ii) and (viii) of Section 3.01(b), the Class B
Available Principal from the Investor Percentage of Principal Collections
in the 1997-A SUBI Collection Account.
Amounts applied pursuant to the preceding sentence on a Monthly Allocation Date
in respect of the Revolving Period pursuant to clause (viii) of Section 3.01(b)
as Loss Amounts and Certificate Principal Loss Amounts allocated to Class B
Certificates and Class B Available Principal in clause (ix) of Section 3.01(b)
shall be treated as Principal Collections that are part of the Investor
Percentage of Principal Collections and applied pursuant to Section 3.02 of the
1997-A SUBI Servicing Supplement. On any Month Allocation Date related to a
Collection Period in the Amortization Period, such amounts shall be treated as
and be deemed to be Principal Collections that are part of the Investor
Percentage of Principal Collections and shall be deposited into the 1997-A SUBI
Certificateholders' Account. Pursuant to the definition of "Class
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Certificate Balance", such amounts allocable to a Class of Investor Certificates
have the effect of restoring the Class Certificate Balance of such Class to the
extent of the reimbursement represented by such amounts.
On such Monthly Allocation Date, after giving effect to all payments
required to be made and all required deposits to or withdrawals from the Reserve
Fund, amounts that otherwise would be payable to the Transferor in respect of
the Transferor Distributable Amount (other than Transferor Amounts) will be
deposited into the Reserve Fund until the amount on deposit therein equals the
Specified Reserve Fund Balance, and any remaining amounts so payable to the
Transferor will be distributed to the Transferor by the 1997-A Securitization
Trustee as follows: (A) if such Monthly Allocation Date relates to a Collection
Period during the Revolving Period, the interest component of such remaining
amounts will be paid in respect of the Transferor Interest Distributable Amount
and (B) if such Monthly Allocation Date relates to a Collection Period during
the Amortization Period, (l) the interest component of such remaining amounts
will be paid in respect of the Transferor Interest Distributable Amount and (2)
if and to the extent that the Transferor Interest will be equal to or greater
than zero, after all required distributions have been made on such Monthly
Allocation Date, the principal component of such remaining amounts will be paid
in respect of the Transferor Principal Distributable Amount. Any amounts that
would otherwise be payable to the Transferor pursuant to the foregoing as the
Transferor Principal Distributable Amount, but may not be so paid because the
Transferor Interest would be less than or equal to zero, shall instead be (i)
allocated or distributed to the Investor Certificateholders pursuant to Section
3.01(d) to the extent necessary, or (ii) held in the Collection Account until
(a) the Investor Certificates are paid in full or (b) the Transferor Interest
again exceeds zero, at which time such amounts will be distributed to the
Transferor.
(f) Subject to Section 7.01 respecting the final payment upon
retirement of each Certificate, the 1997-A Securitization Trustee shall on each
Certificate Payment Date distribute to each Certificateholder of any Class of
record on the related Record Date by check mailed to such Certificateholder at
the address of such Holder appearing in the Certificate Register (or, if DTC,
its nominee or a Clearing Agency is the relevant Certificateholder, by wire
transfer of immediately available funds or pursuant to other arrangements), the
amount to be distributed to such Certificateholder pursuant to Section 3.01.
(g) Amounts properly received by the Transferor pursuant to this
1997-A Securitization Trust Agreement shall be free of any claim of the 1997-A
Securitization Trust, the 1997-A
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Securitization Trustee or the Investor Certificateholders and shall not be
available to the 1997-A Securitization Trustee or the 1997-A Securitization
Trust for the purpose of making deposits to the Reserve Fund or making payments
to the Investor Certificateholders, nor shall the Transferor be required to
refund any amount properly received by it.
(h) The Investor Percentage of the Loss Amount with respect to any
Monthly Allocation Date shall be allocated first to the Class B Certificates to
the extent of the Class B Certificate Balance and then, if the Class B
Certificate Balance has been reduced to zero, any remainder to the Class A
Certificates of each Class PRO RATA in accordance with the respective Class
Certificate Balances of such Classes of Class A Certificates.
(i) The rights of the Class B Certificateholders to receive
allocations and distributions of Available Interest allocable to the 1997-A
SUBI, any Reserve Fund Withdrawal Amount and any Transferor Amounts shall be and
hereby are subordinated to the rights of the Class A-1 Certificateholders, the
Class A-2 Certificateholders and the Class A-3 Certificateholders to receive
allocations and distributions of Available Interest allocable to the 1997-A
SUBI, Reserve Fund Withdrawal Amount and Transferor Amounts to the extent
provided in this 1997-A Securitization Trust Agreement.
SECTION 3.02. 1997-A SUBI CERTIFICATEHOLDERS' ACCOUNT; RESERVE FUND.
(a) The 1997-A Securitization Trustee shall establish and maintain a
separate trust account to be known as the "Series 1997-A SUBI
Certificateholders' Account", which will include the money and other property
deposited and held therein pursuant to Section 3.01 and this Section. The
1997-A SUBI Certificateholders' Account shall be an Eligible Account and
initially shall be established with the 1997-A Securitization Trustee. If for
any reason the 1997-A SUBI Certificateholders' Account is no longer an Eligible
Account, the 1997-A Securitization Trustee shall promptly cause the 1997-A SUBI
Certificateholders' Account to be moved to another institution or otherwise
changed so that the 1997-A SUBI Certificateholders' Account becomes an Eligible
Account.
Pursuant to Section 4.02(j) of the 1997-A Servicing Supplement, the
Servicer shall direct the 1997-A Securitization Trustee to cause the funds in
the 1997-A SUBI Certificateholders' Account to be invested in Permitted
Investments bearing interest at the applicable Required Rates, which are
expected to be TMCC Demand Notes so long as the TMCC Demand Notes are Permitted
Investments. Such Permitted Investments shall mature in such a manner that the
amount required to be distributed on the next succeeding Certificate Payment
Date will be available on the Deposit Date preceding such next succeeding
Certificate Payment Date. To the extent that a Monthly Payment Event Occurrence
occurs, the 1997-A
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Securitization Trustee shall exercise the demand feature in the TMCC Demand
Notes so as to have funds available on the next succeeding Certificate Payment
Date. All amounts held in the 1997-A SUBI Certificateholders= Account shall be
invested by the 1997-A Securitization Trustee in Permitted Investments at the
direction of the Servicer until distributed or otherwise applied in accordance
with the 1997-A Securitization Trust Agreement (including investment overnight
from the Deposit Date on which any Permitted Investment matures to the related
Monthly Allocation Date).
Earnings (net of investment losses) on the investment of funds in the
1997-A SUBI Certificateholders' Account shall be part of Available Interest.
Such net earnings need not be withdrawn from the 1997-A SUBI Certificateholders'
Account and redeposited as Available Interest, but may be retained in the 1997-A
SUBI Certificateholders' Account and applied as provided in this 1997-A
Securitization Trust Agreement.
(b) (i) Pursuant to Section 4.02(j) of the 1997-A Servicing
Supplement, the Transferor shall establish and maintain with the 1997-A
Securitization Trustee a separate trust account to be known as the "Reserve
Fund", which will include the money and other property deposited and held
therein pursuant to Section 3.01(b) and this Section. Funds in the Reserve Fund
shall be the property of the Transferor and not the property of the 1997-A
Securitization Trust. The Transferor hereby grants to the 1997-A Securitization
Trustee for the benefit of the Investor Certificateholders a security interest
in all funds (including Permitted Investments) in the Reserve Fund (including
the Reserve Fund Initial Deposit) and the proceeds thereof, and the 1997-A
Securitization Trustee shall have all of the rights of a secured party under the
UCC with respect thereto; PROVIDED that all income from the investment of funds
in the Reserve Fund and the right to receive such income are retained by the
Transferor and are not transferred, assigned or otherwise conveyed to the 1997-A
Securitization Trustee. The Reserve Fund shall be an Eligible Account and
initially shall be established with the 1997-A Securitization Trustee. If for
any reason the Reserve Fund is no longer an Eligible Account, the 1997-A
Securitization Trustee shall promptly cause the Reserve Fund to be moved to
another institution or otherwise changed so that the Reserve Fund becomes an
Eligible Account.
(ii) All amounts held in the Reserve Fund shall be invested, as
directed by the Servicer pursuant to Section 4.02(j) of the 1997-A Servicing
Supplement, in Permitted Investments. Earnings on investment of funds in the
Reserve Fund shall be paid to the Transferor on each Certificate Payment Date,
and losses and any investment expenses shall be charged against the funds on
deposit therein.
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(c) On or prior to the Closing Date, the Transferor shall deposit an
amount equal to the Reserve Fund Initial Deposit into the Reserve Fund. Amounts
on deposit in the Reserve Fund shall be supplemented from time to time by the
deposit therein of Excess Amounts otherwise distributable to the Transferor
pursuant to Section 3.01(c), and amounts that otherwise would be payable to the
Transferor pursuant to Section 3.01(e) but for the fact that the amount on
deposit in the Reserve Fund is less than the Specified Reserve Fund Balance, to
the extent described in this subparagraph (c). On each Monthly Allocation Date
the amounts on deposit in the Reserve Fund shall be available for allocation and
distribution as provided in Section 3.01; PROVIDED that the Class B Interest
Reserve Amount shall only be applied to distributions of interest in respect of
the Class B Certificates and, on each Certificate Payment Date, if the amount on
deposit in the Reserve Fund (after giving effect to all deposits thereto or
withdrawals therefrom on such Monthly Allocation Date) is greater than the
Specified Reserve Fund Balance, the 1997-A Securitization Trustee will
distribute any such excess amount to the Transferor, whereupon such excess
amount shall no longer be available to the 1997-A Securitization Trustee or the
Investor Certificateholders.
(d) Upon termination of the 1997-A Securitization Trust pursuant to
Section 7.01, any amounts on deposit in the Reserve Fund shall be available for
payment of any remaining amounts due to the Investor Certificateholders, and for
payment of any remaining amounts due to the 1997-A Securitization Trustee, and
after payment of such amounts due, shall be paid to the Transferor.
SECTION 3.03. STATEMENTS TO CERTIFICATEHOLDERS.
(a) On each Monthly Allocation Date, the 1997-A Securitization
Trustee shall include with each allocation or distribution to each
Certificateholder of record a statement, prepared by the Servicer, based on
information in the Servicer's Certificate furnished pursuant to Section 5.01(b)
of the 1997-A Servicing Supplement, setting forth for the related Collection
Period and such Monthly Allocation Date the following information as of the
related Record Date or Deposit Date or such Monthly Allocation Date, as the case
may be:
(i) the Investor Percentage and Transferor Percentage in effect with
respect to the related Collection Period;
(ii) the Certificate Distribution Amount being allocated or
distributed to each Class of Certificateholders;
(iii) the amount of the Certificate Distribution Amount allocable to
interest on and principal of each Class of Certificates, separately
identifying any interest on Certificate Principal Loss Amounts and any
Maturity Advances;
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(iv) the amount of the Certificate Distribution Amount, if any,
allocable to the Class A-1 Interest Carryover Shortfall, Class A-2 Interest
Carryover Shortfall, Class A-3 Interest Carryover Shortfall and Class B
Interest Carryover Shortfall;
(v) the amount, if any, of the remaining unpaid Class A-1 Interest
Carryover Shortfall, Class A-2 Interest Carryover Shortfall, Class A-3
Interest Carryover Shortfall and Class B Interest Carryover Shortfall after
giving effect to the Certificate Distribution Amount;
(vi) the Certificate Balance, the Class A-1 Certificate Balance, the
Class A-2 Certificate Balance, the Class A-3 Certificate Balance, the Class
B Certificate Balance, the Class A-1 Certificate Factor, the Class A-2
Certificate Factor, the Class A-3 Certificate Factor, the Class B
Certificate Factor and the Adjusted Certificate Balance of each Class of
Investor Certificates, in each case as of such Monthly Allocation Date and
after giving effect to the allocation and/or distribution of the
Certificate Distribution Amount;
(vii) the aggregate amount, if any, of the reimbursement of Loss
Amounts included in the allocation or distribution of the Certificate
Distribution Amount and the amount thereof allocated to each of the Class
A-1 Loss Amounts, the Class A-2 Loss Amounts, the Class A-3 Loss Amounts
and the Class B Loss Amounts;
(viii) the amount, if any, of the reimbursement of Class A-1
Certificate Principal Loss Amounts, Class A-2 Certificate Principal Loss
Amounts, Class A-3 Certificate Principal Loss Amounts and Class B
Certificate Principal Loss Amounts included in the Certificate Distribution
Amount, in each case together with the amount of accrued interest thereon;
(ix) the amount, if any, of the aggregate of unreimbursed Class A-1
Certificate Principal Loss Amounts, Class A-2 Certificate Principal Loss
Amounts, Class A-3 Certificate Principal Loss Amounts and Class B
Certificate Principal Loss Amounts after giving effect to the allocation or
distribution of the Certificate Distribution Amount;
(x) the amount of any Class B Available Principal and unreimbursed
Class B Available Principal, after giving effect to the allocation or
distribution of the Certificate Distribution Amount;
(xi) the Investor Percentage of the Servicing Fee allocable to the
1997-A SUBI for such Monthly Allocation Date
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and any unpaid previous such amounts with respect to prior Monthly
Allocations Dates;
(xii) the amount of any Required Amount included in the Certificate
Distribution Amount and the balance on deposit in the Reserve Fund and the
Class B Interest Reserve Amount on such Monthly Allocation Date, after
giving effect to withdrawals therefrom and deposits thereto on such Monthly
Allocation Date, the change in such balance from the immediately preceding
Monthly Allocation Date and the Specified Reserve Fund Balance;
(xiii) the amount of Transferor Amounts, if any, included in the
Certificate Distribution Amount;
(xiv) the Aggregate Net Investment Value as of the end of such
Collection Period;
(xv) the aggregate amount of Payments Ahead received by the Servicer
and being held thereby or on deposit in the SUBI Collection Account in
respect of future Collection Periods and the change in such amount from the
immediately preceding Monthly Allocation Date;
(xvi) the amount of Advances and Maturity Advances made, and the
amount of unreimbursed Advances and Maturity Advances outstanding after
giving effect to the allocation or distribution of the Certificate
Distribution Amount;
(xvii) the weighted average Contract Rate of the Contracts in the
1997-A SUBI Portfolio for the immediately preceding Collection Period, the
Charge-off Rate and Delinquency Percentage for each of the three
immediately preceding Collection Periods;
(xviii) Whether the "Residual Value Test" is satisfied, separately
stating (A) whether with respect to the related Collection Period the
number of Leased Vehicles returned to the Servicer during such period
relating to Contracts that became Matured Contracts during such period is
greater than 25% of all Contracts that, as of their respective origination
dates, had been scheduled to become Matured Contracts during such period
(provided that at least 500 such Contracts had been scheduled to become
Matured Contracts during such Collection Period), and (B) whether the
average Net Matured Leased Vehicle Proceeds during the three immediately
preceding calendar months (or the months of August and September 1997 in
the case of the October 1997 Determination Date) is less than 75% of the
average Residual Values of Leased Vehicles disposed of or liquidated during
such period;
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provided, however, that such statement with respect to the Monthly Allocation
Date in September 1997 may include only information with respect to the 1997-A
SUBI Assets as of the Cut-off Date and with respect to the 1997-A SUBI
Certificateholders' Account Interest Deposit, and that such statement with
respect to the Monthly Allocation Date in October 1997 will include all such
information with respect to the Monthly Allocation Dates in September 1997 and
in October 1997 reported separately. Any Certificate Owner may obtain a copy of
any such statement, of any Servicer's Certificate required pursuant to Section
5.01(b) of the 1997-A SUBI Servicing Supplement, any annual report of
Independent Accountants required pursuant to Section 5.02 of the 1997-A SUBI
Servicing Supplement, and of any annual Officer's Certificate required pursuant
to Section 5.03 of the 1997-A SUBI Servicing Supplement, upon written request to
the 1997-A Securitization Trustee at the Corporate Trust Office.
(b) Within a reasonable period of time after the end of each calendar
year, but not later than the latest date permitted by law, the 1997-A
Securitization Trustee shall mail to each Person who at any time during such
calendar year shall have been a Holder of an Investor Certificate, a statement
or statements which in the aggregate contain the sum of the amounts set forth in
clauses (iii), (ix) and (xi) in Section 3.03(a) for such calendar year or, in
the event such Person shall have been a Holder of an Investor Certificate during
a portion of such calendar year, for the applicable portion of such year, for
the purposes of such Certificateholder's preparation of federal income tax
returns. In addition, the Servicer shall furnish to the 1997-A Securitization
Trustee for distribution to such Person at such time any other information
reasonably necessary under applicable law for the preparation of such income tax
returns.
ARTICLE FOUR
THE CERTIFICATES
SECTION 4.01 THE CERTIFICATES.
(a) The Class A-1 Certificates, the Class A-2 Certificates, the Class
A-3 Certificates, the Class B Certificates and the Transferor Certificate shall
be substantially in the form of Exhibits A-1, A-2, A-3, B and C, respectively,
to this 1997-A Securitization Trust Agreement. The Class A-1 Certificates, the
Class A-2 Certificates and the Class A-3 Certificates shall be issuable in
minimum denominations of $1,000 and integral multiples of $1 in excess thereof
and the Class B Certificates shall be issuable in minimum denominations of
$250,000 and integral multiples of $1,000 in excess thereof (PROVIDED that no
Class B Certificate may be issued or transferred in a denomination that would
cause there to be, immediately after such issuance or transfer, one hundred
(100) or more Class B Certificateholders);
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PROVIDED, HOWEVER, that one Class A-1 Certificate, one Class A-2 Certificate,
one Class A-3 Certificate and one Class B Certificate may be issued in a
denomination that includes any remaining portion of the Initial Class A-1
Certificate Balance, the Initial Class A-2 Certificate Balance, the Initial
Class A-3 Certificate Balance and the Initial Class B Certificate Balance,
respectively (each, a "Residual Certificate"). A single Transferor Certificate
shall be issued. The Certificates shall be executed on behalf of the 1997-A
Securitization Trustee by manual or facsimile signature of an officer or other
authorized signatory of the 1997-A Securitization Trustee. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures were affixed, authorized to sign on behalf of the 1997-A
Securitization Trustee shall not be rendered invalid, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of such Certificates. All Certificates shall be dated the date of
their authentication.
(b) The Investor Certificates shall represent fractional undivided
interests in the 1997-A Securitization Trust, including the right to receive the
Investor Percentage of Interest Collections and Principal Collections and the
other amounts at the times and in the amounts specified in this 1997-A
Securitization Trust Agreement. The Transferor Certificate shall represent the
interest in the 1997-A Securitization Trust not represented by the Investor
Certificates.
SECTION 4.02. AUTHENTICATION AND DELIVERY OF CERTIFICATES.
In exchange for, and simultaneously with the sale, assignment and transfer
to the 1997-A Securitization Trustee of the 1997-A SUBI (exclusive of all monies
and payments due or payable under any Residual Value Insurance Policy and the
right to receive such amounts), the 1997-A SUBI Certificate and the other assets
of the 1997-A Securitization Trust, the 1997-A Securitization Trustee shall
cause to be executed, authenticated and delivered to or upon the order of the
Transferor Investor Certificates in authorized denominations equaling in the
aggregate the sum of the Initial Class A-1 Certificate Balance, the Initial
Class A-2 Certificate Balance, the Initial Class A-3 Certificate Balance and the
Initial Class B Certificate Balance, and the Transferor Certificate, each duly
authorized by the 1997-A Securitization Trustee, and evidencing the entire
ownership of the 1997-A Securitization Trust. No Certificate shall be entitled
to any benefit under this 1997-A Securitization Trust Agreement, or be valid for
any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A-1, A-2, A-3, B
or C to this 1997-A Securitization Trust Agreement, as the case may be, executed
by the 1997-A Securitization Trustee by manual signature, and such certificate
upon any Certificate shall be
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conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered under this 1997-A Securitization Trust Agreement.
SECTION 4.03. REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall maintain a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Certificate Register shall provide for the registration of Certificates and
transfers and exchanges of Certificates as provided in this 1997-A
Securitization Trust Agreement; PROVIDED, HOWEVER, that Bankers Trust Company
Luxembourg S.A. and any transfer agent appointed in Hong Kong shall provide for
transfers and exchanges of the Definitive Certificates. The 1997-A
Securitization Trustee is hereby initially appointed Certificate Registrar for
the purpose of registering Certificates and transfers and exchanges of
Certificates as provided in this 1997-A Securitization Trust Agreement. In the
event that, subsequent to the Closing Date, the 1997-A Securitization Trustee
notifies the Servicer that it is unable to act as Certificate Registrar, the
Servicer shall appoint another bank or trust company, having an office or agency
located in the Borough of Manhattan, The City of New York, agreeing to act in
accordance with the provisions of this 1997-A Securitization Trust Agreement
applicable to it, and otherwise acceptable to the 1997-A Securitization Trustee,
to act as successor Certificate Registrar under this 1997-A Securitization Trust
Agreement.
The Transferor Certificate shall be owned by the Transferor and may not be
transferred, as provided by Section 5.06.
No transfer of the Class B Certificates shall be made unless such resale or
transfer is made (i) pursuant to an effective Registration Statement under the
Securities Act, (ii) in a transaction (other than a transaction in clause (iv)
below) exempt from the registration requirements of the Securities Act and
applicable state and foreign securities laws (iii) to the Transferor, or (iv) to
a Person who the transferor of such Class B Certificate reasonably believes is a
qualified institutional buyer within the meaning of Rule 144A under the
Securities Act and that is aware that the resale or other transfer is being made
in reliance on Rule 144A or to an institutional "accredited investor" as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act (an "Institutional
Accredited Investor"). In the event that a transfer is to be made as described
in clause (ii) of the preceding sentence, the prospective transferee shall
deliver or cause to be delivered an Opinion of Counsel in form and substance
satisfactory to the 1997-A Securitization Trustee and the Transferor to the
effect that such transfer may be made without registration under the Securities
Act or any applicable state or foreign securities
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laws. In the event that a transfer is to be made as described in clause (iv),
the 1997-A Securitization Trustee shall require that the transferee execute a
representation letter acceptable to and in form and substance satisfactory to
the 1997-A Securitization Trustee (PROVIDED that the form attached as Exhibit D
or Exhibit E, as applicable, shall be deemed acceptable if it is completed in a
manner acceptable to the 1997-A Securitization Trustee) certifying to the 1997-A
Securitization Trustee the facts surrounding such transfer, which representation
letter shall not be an expense of the 1997-A Securitization Trustee, the
Transferor or the Servicer. In the case of a transfer under either clause (ii)
or clause (iv), the Holder of a Class B Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the 1997-A Securitization
Trustee, the Transferor and the Servicer against any liability that may result
if the transfer is not so exempt or is not made in accordance with the
Securities Act and such state laws. Neither the Transferor, the Servicer nor the
1997-A Securitization Trustee is under any obligation to register the Class B
Certificates under the Securities Act or any applicable state or foreign
securities laws. Prospective purchasers of the Class B Certificates are hereby
notified that the seller of any Class B Certificates may be relying on the
exemption from the registration requirements of Section 5 of the Act provided by
Rule 144A under the Act.
The Class B Certificates or a beneficial interest therein may not be
transferred unless the 1997-A Securitization Trustee has received (i) either
(a) a certificate from the transferee to the effect that such transferee is not
an employee benefit plan, trust or account subject to ERISA, or subject to
Section 4975 of the Code, or a governmental plan defined in Section 3(32) of
ERISA subject to any federal, state or local law which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code ("Similar Law") (each,
a "Benefit Plan") and is not an entity, including an insurance company separate
account or an insurance company general account if the assets in any such
accounts constitute "Plan Assets" for purposes of regulation Section 2510.3-101
of ERISA, whose underlying assets include Benefit Plan assets by reason of a
Benefit Plan's investment in the entity (such Benefit Plan or entity, a "Benefit
Plan Investor") or (b) an Opinion of Counsel satisfactory to the 1997-A
Securitization Trustee, the Transferor and the Servicer to the effect that the
purchase or holding of such Class B Certificate will not constitute or result in
the assets of the 1997-A Securitization Trust being deemed to be "Plan Assets"
subject to the fiduciary responsibility provisions of ERISA or prohibited
transactions provisions of Section 4975 of the Code or Similar Law, will not
constitute or result in a prohibited transaction within the meaning of Section
406 or Section 407 of ERISA or Section 4975 of the Code or Similar Law, and will
not subject the 1997-A Securitization Trustee, the Transferor or the Servicer to
any obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of
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the Code or Similar Law) and (ii) a certificate to the effect that if the
transferee is a partnership, grantor trust or S corporation for federal income
tax purposes (a "Flow-Through Entity"), any Class B Certificates owned by such
Flow-Through Entity will represent less than 50% of the value of all the assets
owned by such Flow-Through Entity and no special allocation of income, gain,
loss, deduction or credit from such Class B Certificates will be made among the
beneficial owners of such Flow-Through Entity. Notwithstanding the foregoing
restrictions, the 1997-A Securitization Trustee shall permit a transfer of
Class B Certificates to a Benefit Plan if, in the sole determination of the
1997-A Securitization Trustee, after giving effect to the proposed transfer to
such Benefit Plan, Benefit Plans will not own 25% or more of the Class B
Certificates (by Class Certificate Balance).
The Transferor shall, whenever the 1997-A Securitization Trust is not
subject to Section 13 or 15(d) of the Exchange Act, make available, upon
request, to any holder of such Class B Certificates in connection with any sale
thereof and any prospective purchaser of Class B Certificates from such holder
the information specified in Rule 144A(d)(4) under the Securities Act.
In addition, no resale or other transfer of the Class B Certificates or any
interest therein shall be permitted unless immediately after giving effect to
such resale or other transfer, there would be fewer than 100 Class B
Certificateholders.
The Class B Certificates, this 1997-A Securitization Trust Agreement and
related documents may be amended or supplemented from time to time to modify
restrictions on and procedures for resale and other transfer of such Class B
Certificates to reflect any change in applicable law or regulation (or the
interpretation thereof) or practices relating to the resale or transfer of
restricted securities generally.
(b) Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office of the 1997-A Securitization Trustee in its capacity
as Certificate Registrar, or at the office of the agent of the 1997-A
Securitization Trustee as Certificate Registrar, who shall initially be First
Trust of New York, National Association, 100 Wall Street, 20th Floor, New York,
New York 10005, in the Borough of Manhattan, the City of New York and, with
respect to the Definitive Certificates, Bankers Trust Company Luxembourg S.A.
and any agent appointed for such purpose in Hong Kong for so long as any Class A
Certificates are listed on the Luxembourg and Hong Kong Stock Exchanges, or the
appropriate office of any successor Certificate Registrar, the 1997-A
Securitization Trustee shall execute, authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Certificates of the
same Class in authorized denominations of a like aggregate principal amount.
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(c) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class of authorized denominations
of a like aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the 1997-A Securitization Trustee on behalf of the
1997-A Securitization Trust shall execute, authenticate and deliver the
Certificates that the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the 1997-A Securitization Trustee and the Certificate
Registrar duly executed by the Holder thereof or his attorney duly authorized in
writing.
(d) No service charge shall be imposed on any Holder for any
registration of transfer or exchange of Certificates, but the 1997-A
Securitization Trustee may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any transfer or
exchange of Certificates, subject in Hong Kong to the limits set forth in The
Hong Kong Listing Agreement.
(e) All Certificates surrendered for registration of transfer and
exchange shall be cancelled and subsequently destroyed by the 1997-A
Securitization Trustee.
(f) No Class B Certificate shall be listed for trading on any
recognized securities exchange.
SECTION 4.04. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar (or Bankers Trust Company Luxembourg S.A. and any agent appointed for
such purpose in Hong Kong with respect to the Definitive Certificates), or the
Certificate Registrar (or Bankers Trust Company Luxembourg S.A. and any agent
appointed for for such purpose in Hong Kong) receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Certificate Registrar (or Bankers Trust Company
Luxembourg S.A. and any agent appointed for such purpose in Hong Kong with
respect to the Definitive Certificates) and the 1997-A Securitization Trustee
such security or indemnity as may be required by them to save each of them and
the 1997-A Securitization Trust harmless, then, in the absence of notice that
such Certificate has been acquired by a bona fide purchaser, the 1997-A
Securitization Trustee on behalf of the 1997-A Securitization Trust shall
execute and the 1997-A Securitization Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and Percentage Interest. In
connection
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with the issuance of any new Certificate under this Section, the 1997-A
Securitization Trustee may require the payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto. Any duplicate Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the 1997-A
Securitization Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time, and any such lost, stolen
or destroyed Certificate shall, upon issuance of any such duplicate Certificate,
be null, void and of no effect.
SECTION 4.05. PERSONS DEEMED OWNERS.
Prior to due presentation of a Certificate for registration of transfer,
the 1997-A Securitization Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 3.01 and for all other purposes whatsoever,
and neither the 1997-A Securitization Trustee, the Certificate Registrar nor any
of their respective agents shall be affected by any notice to the contrary.
SECTION 4.06. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
The Certificate Registrar shall furnish or cause to be furnished to the
Servicer, within 15 days after receipt by the Certificate Registrar of a written
request therefor from the Servicer, a list, in such form as the Servicer may
reasonably require, of the names and addresses of the Certificateholders as of
the most recent Record Date. If three or more Certificateholders or holders of
Investor Certificates evidencing not less than 25% of the aggregate Percentage
Interests of any Class (hereinafter referred to as "Applicants") apply in
writing to the 1997-A Securitization Trustee, and such application states that
the Applicants desire to communicate with other Investor Certificateholders with
respect to their rights under this 1997-A Securitization Trust Agreement or
under the Certificates and such application is accompanied by a copy of the
communication that such Applicants propose to transmit, then the 1997-A
Securitization 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 Investor Certificateholders. Every Certificateholder, by
receiving and holding a Certificate, agrees with the Servicer and the 1997-A
Securitization Trustee that neither the Servicer nor the 1997-A Securitization
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Certificateholders under the
Agreement, regardless of the source from which such information was derived.
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SECTION 4.07. MAINTENANCE OF OFFICE OR AGENCY.
The 1997-A Securitization 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.
The initial such agency shall be c/o First Trust of New York, National
Association, 100 Wall Street, 20th Floor, New York, New York 10005 and, with
respect to the Definitive Certificates shall be Bankers Trust Company Luxembourg
S.A., 14 Boulevard F.D. Roosevelt, L-2450, Luxembourg, and any agent appointed
for such purpose in Hong Kong for so long as any Class A Certificates are listed
on the Luxembourg and Hong Kong Stock Exchanges; PROVIDED that a copy of any
such Certificate surrendered shall be sent to the 1997-A Securitization Trustee
at the Corporate Trust Office. The 1997-A Securitization Trustee shall give
prompt written notice to the Transferor, the Servicer and the Certificateholders
of any change in the location of any such office or agency. Notices and demands
to or upon the 1997-A Securitization Trustee in respect of the Certificates and
this 1997-A Securitization Trust Agreement shall not be sent to such office or
agency, but shall be sent as set forth in Section 10.02.
SECTION 4.08. TEMPORARY CERTIFICATES.
Pending the preparation of definitive Class A-1 Certificates, Class A-2
Certificates or Class A-3 Certificates, the 1997-A Securitization Trustee, on
behalf of the 1997-A Securitization Trust, may execute, authenticate and
deliver, temporary Class A-1 Certificates, Class A-2 Certificates or Class A-3
Certificates that are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Class A-1 Certificates, Class A-2 Certificates or Class A-3
Certificates in lieu of which they are issued. If temporary Class A-1
Certificates, Class A-2 Certificates or Class A-3 Certificates are issued, the
Transferor will cause definitive Class A-1 Certificates, Class A-2 Certificates
or Class A-3 Certificates to be prepared without unreasonable delay. After the
preparation of definitive Class A-1 Certificates, Class A-2 Certificates or
Class A-3 Certificates, the temporary Class A-1 Certificates, Class A-2
Certificates or Class A-3 Certificates shall be exchangeable for definitive
Class A-1 Certificates, Class A-2 Certificates or Class A-3 Certificates upon
surrender of the temporary Class A-1 Certificates, Class A-2 Certificates, or
Class A-3 Certificates at the office or agency to be maintained as provided in
Section 4.07, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Class A Certificates, the 1997-A Securitization
Trustee shall execute and authenticate and deliver in exchange therefor a like
principal amount of definitive Class A Certificates in authorized denominations.
Until so exchanged the temporary Class
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A Certificates shall in all respects be entitled to the same benefits under the
Agreement as definitive Class A Certificates.
SECTION 4.09. BOOK-ENTRY CERTIFICATES.
The Class A-1 Certificates, the Class A-2 Certificates and the Class A-3
Certificates, upon original issuance will be issued in the form of one or more
typewritten certificates representing the Book-Entry Certificates, to be
delivered to DTC, the initial Clearing Agency, by, or on behalf of, the
Transferor. The certificate or certificates delivered to DTC evidencing such
Class A-1 Certificates, Class A-2 Certificates and Class A-3 Certificates shall
initially be registered on the Certificate Register in the name of Cede & Co.,
the nominee of the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Class A-1 Certificates, the Class A-2 Certificates or the Class A-3
Certificates, except as provided in Section 4.11. Unless otherwise specified in
this 1997-A Securitization Trust Agreement, unless and until definitive, fully
registered Class A-1 Certificates, Class A-2 Certificates, and Class A-3
Certificates (the "Definitive Certificates") have been issued to Certificate
Owners pursuant to Section 4.11:
(i) the provisions of this Section shall be in full force and effect;
(ii) the Transferor, the Servicer, the Certificate Registrar and the
1997-A Securitization Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on the Class A-1
Certificates, the Class A-2 Certificates and the Class A-3 Certificates) as
the authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section conflict with
any other provisions of the Agreement, the provisions of this Section shall
control;
(iv) the rights of Certificate Owners shall be exercised only through
(or through procedures established by) the Clearing Agency and shall be
limited to those established by law and agreements between such Certificate
Owners and the Clearing Agency and/or the Clearing Agency Participants.
Unless and until Definitive Certificates are issued pursuant to Section
4.11, the initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit distributions of
principal and interest on the Class A-1 Certificates, the Class A-2
Certificates and the Class A-3 Certificates to such Clearing Agency
Participants; and
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(v) whenever this 1997-A Securitization Trust Agreement requires or
permits actions to be taken based upon instructions or directions of
Holders of Class A-1 Certificates, Class A-2 Certificates or Class A-3
Certificates evidencing a specified aggregate Percentage Interest thereof
the Clearing Agency shall be deemed to represent such percentage (if and to
the extent that it will act on behalf of Certificate Owners and/or Clearing
Agency Participants) only to the extent that it has received instructions
to such effect from Certificate Owners and/or Clearing Agency Participants
owning or representing, respectively, such required percentages of the
beneficial interest in Class A-1 Certificates, Class A-2 Certificates or
Class A-3 Certificates and has delivered such instructions to the 1997-A
Securitization Trustee.
SECTION 4.10. NOTICES.
Whenever notice or other communication to the Class A-1 Certificateholders,
Class A-2 Certificateholders or the Class A-3 Certificateholders is required
under this 1997-A Securitization Trust Agreement, other than to the Holder of
the Residual Certificate with respect to the Class A-1 Certificates, the Class
A-2 Certificates or the Class A-3 Certificates, respectively, unless and until
Definitive Certificates shall have been issued to Certificate Owners pursuant to
Section 4.11, the 1997-A Securitization Trustee and the Servicer shall give all
such notices and communications specified herein to be given to Holders of the
Class A-1 Certificates, the Class A-2 Certificates or the Class A-3 Certificates
to the Clearing Agency. Whenever notice or other communication to the holders
of Definitive Certificates is required under this 1997-A Securitization Trust
Agreement, the 1997-A Securitization Trustee and the Servicer shall give all
such notices and communications specified herein to the Holders of such
Definitive Certificates as follows: (i) for so long as any Definitive
Certificates are listed on the Luxembourg Stock Exchange, notices to holders of
Definitive Certificates will be given by publication in a leading daily
newspaper of general circulation in Luxembourg or, if publication in Luxembourg
is not practical, in Europe. Such publication is expected to be made in the
LUXEMBOURG WORT; and (ii) for so long as any Definitive Certificates are listed
on The Stock Exchange of Hong Kong Limited, notices to holders of Definitive
Certificates will be given by publication in a leading daily newspaper of
general circulation in the English language in Hong Kong. Such publication is
expected to be made in the SOUTH CHINA MORNING POST. In addition, if Definitive
Certificates are issued, such notices will be mailed to the addresses of holders
thereof at the addresses therefor as they appear in the Corporate Register
maintained by the 1997-A Securitization Trustee prior to such mailing. Such
notices will be
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deemed to have been given on the date of such publication or mailing.
SECTION 4.11. DEFINITIVE CERTIFICATES.
If (i)(A) the Transferor advises the 1997-A Securitization Trustee in
writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities as described in the letter of representations
among the Transferor, the 1997-A Securitization Trustee and the Clearing Agency
and (B) the 1997-A Securitization Trustee or the Transferor is unable to locate
a qualified successor, (ii) the Transferor at its option, advises the 1997-A
Securitization Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency, or (iii) after the occurrence of an Early
Amortization Event, Certificate Owners representing beneficial interests in the
Class A-1 Certificates, the Class A-2 Certificates and the Class A-3
Certificates (voting together as a single class) aggregating not less than 51%
of the Percentage Interests advise the 1997-A Securitization Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the Certificate Owners, then the 1997-A Securitization
Trustee shall notify all Certificate Owners, of the occurrence of such event and
of the availability of Definitive Certificates to Certificate Owners requesting
the same. Upon surrender to the 1997-A Securitization Trustee of the Class A-1
Certificates, the Class A-2 Certificates or the Class A-3 Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the 1997-A Securitization Trustee shall issue the
Definitive Certificates and deliver such Definitive Certificates in accordance
with the instructions of the Clearing Agency. None of the Transferor, the
Certificate Registrar or the 1997-A Securitization Trustee shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, the 1997-A Securitization Trustee shall recognize the
Holders of the Definitive Certificates as Class A-1 Certificateholders, Class
A-2 Certificateholders or Class A-3 Certificateholders hereunder, as applicable.
The 1997-A Securitization Trustee shall not be liable if the 1997-A
Securitization Trustee or the Transferor is unable to locate a qualified
successor Clearing Agency.
The Class B Certificates shall be Definitive Certificates in minimum
denominations of $250,000 and in integral multiples of $1,000 in excess thereof.
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Holders of Definitive Certificates in Luxembourg may contact Bankers Trust
Company Luxembourg S.A. to arrange for receipt of their Definitive Certificates.
Holders of Definitive Certificates in Luxembourg will be able to effect
transfers by delivery of the Definitive Certificates to Bankers Trust Company
Luxembourg S.A. with instructions for the transfer of all or part thereof to the
proposed transferee thereof. If Definitive Certificates are issued in Hong
Kong, a transfer agent will be appointed in Hong Kong.
SECTION 4.12. TAX TREATMENT.
(a) It is the intention of the Transferor and the Investor
Certificateholders that the Investor Certificates will be indebtedness of the
Transferor for federal, state and local income and franchise tax purposes and
for purposes of any other tax imposed on or measured by income. The Transferor,
the 1997-A Securitization Trustee and each Holder of an Investor Certificate (or
Certificate Owner) by acceptance of its Investor Certificate (or, in the case of
a Certificate Owner, by virtue of such Certificate Owner's acquisition of a
beneficial interest therein) agree to treat the Investor Certificates (or
beneficial interest therein), for purposes of federal, state and local income or
franchise taxes and any other tax imposed on or measured by income, as secured
indebtedness of the Transferor and to report the transactions contemplated by
this 1997-A Securitization Trust Agreement on all applicable tax returns in a
manner consistent with such treatment. Each Holder of an Investor Certificate
agrees that it will cause any Certificate Owner acquiring an interest in a
Certificate through it to comply with this 1997-A Securitization Trust Agreement
as to treatment as secured indebtedness for federal, state and local income and
franchise tax purposes and for purposes of any other tax imposed on or measured
by income. Each Holder of an Investor Certificate also agrees that it will not
be entitled to any of the tax benefits related to the 1997-A Contracts and
1997-A Leased Vehicles, including any of the depreciation deductions resulting
therefrom.
(b) In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a), it is finally determined that the
Class A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates
and/or the Class B Certificates do not evidence indebtedness of the Transferor
for all income and franchise tax purposes, but rather represent an equity
interest in the assets of the 1997-A Securitization Trust, then the Transferor,
the 1997-A Securitization Trustee, each Holder of such Investor Certificate and
each Certificate Owner thereof, by virtue of acquiring a beneficial interest
therein, all agree (i) to treat such Investor Certificates, together with the
Transferor Certificate, as representing an interest in a partnership for all tax
purposes, (ii) to treat all payments in respect of such
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Investor Certificates (to the extent not a return of capital) as a "guaranteed
payment" thereon made pursuant to Section 707(c) of the Code, and (iii) to
allocate all other items of income, gain, deduction, loss or credit with respect
to the assets and operations of the 1997-A Securitization Trust to the
Transferor.
SECTION 4.13. ERISA MATTERS.
The Transferor shall cause the Class A-1 Certificates, the Class A-2
Certificates and the Class A-3 Certificates to be registered under Section 12(g)
of the Exchange Act within 120 days after December 31, 1997 and, with respect to
each such Class of Class A Certificates, maintain such registration until the
Class Certificate Balance of such Class of Class A Certificates (after giving
effect to any reimbursements of Certificate Principal Loss Amounts allocated
thereto) is reduced to zero. The Transferor has applied to the Department of
Labor for an administrative exemption (the "Requested Exemption") from certain
of the prohibited transaction rules of ERISA in respect of the Class A
Certificates. Notwithstanding the foregoing, if the Requested Exemption is
granted by the Department of Labor substantially in the form for which the
application for the Requested Exemption was made, the Transferor, at its option,
may deregister the Class A Certificates under the Exchange Act or, if such
registration has not been effected, not register the Class A Certificates under
the Exchange Act.
ARTICLE FIVE
THE TRANSFEROR
SECTION 5.01. REPRESENTATIONS OF TRANSFEROR.
The Transferor hereby makes the following representations on which the
1997-A Securitization Trustee relies in accepting the 1997-A SUBI and 1997-A
SUBI Certificate in trust and authenticating the Certificates. The
representations speak as of the execution and delivery of this 1997-A
Securitization Trust Agreement, but shall survive the sale, transfer and
assignment of the 1997-A SUBI and 1997-A SUBI Certificate to the 1997-A
Securitization Trustee.
(a) ORGANIZATION AND GOOD STANDING. The Transferor is a corporation
duly incorporated and validly existing and in good standing under the laws of
the State of California, with power and authority to own its properties and to
conduct its business as such properties shall be currently owned and such
business is presently conducted, and has power, authority and legal right to
acquire, own and sell the 1997-A SUBI and 1997-A SUBI Certificate.
(b) DUE REGISTRATION. The Transferor is duly registered as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the
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ownership or lease of property or the conduct of its business requires such
qualifications, except where the failure to so qualify or to have obtained such
licenses and approvals would not have a material adverse effect on the earnings,
business affairs or business prospects of the Transferor.
(c) POWER AND AUTHORITY. The Transferor has the power and authority
to execute and deliver this 1997-A Securitization Trust Agreement and to carry
out its terms, the Transferor has full power and authority to sell and assign
the property to be sold and assigned to and deposited with the 1997-A
Securitization Trustee as part of the 1997-A Securitization Trust and has duly
authorized such sale and assignment to the 1997-A Securitization Trustee by all
necessary action; and the execution, delivery and performance of this 1997-A
Securitization Trust Agreement have been duly authorized by the Transferor by
all necessary corporate action.
(d) VALID SALE; BINDING OBLIGATIONS. This 1997-A Securitization
Trust Agreement evidences a valid sale, transfer and assignment of the 1997-A
SUBI and 1997-A SUBI Certificate (excluding the proceeds of the Residual Value
Insurance Policy), and constitutes a legal, valid and binding obligation of the
Transferor enforceable in accordance with its terms, in each case except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
(e) NO VIOLATION. The consummation of the transactions contemplated
by this 1997-A Securitization Trust Agreement and the fulfillment of the terms
of this 1997-A Securitization Trust Agreement do not conflict with, result in
any breach of any of the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the Articles of Incorporation
of the Transferor, or conflict with or violate any of the material terms or
provisions of, or constitute (with or without notice or lapse of time) a default
under, any indenture, agreement or other instrument to which the Transferor 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 this 1997-A Securitization Trust
Agreement, the 1997-A SUBI Supplement, the 1997-A SUBI Servicing Supplement, the
1997-A SUBI Certificate Purchase and Sale Agreement and the Back-Up Security
Agreement; nor violate any law or, to the best of the Transferor's knowledge,
any order, rule or regulation applicable to the Transferor of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Transferor 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 Transferor.
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(f) NO PROCEEDINGS. There are no proceedings or investigations
pending, or to the Transferor's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Transferor or its properties: (i) asserting the
invalidity of this 1997-A Securitization Trust Agreement or the Certificates,
(ii) seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by this 1997-A Securitization Trust
Agreement, (iii) seeking any determination or ruling that might materially and
adversely affect the performance by the Transferor of its obligations under, or
the validity or enforceability of, this 1997-A Securitization Trust Agreement or
the Certificates or (iv) relating to the Transferor and which might adversely
affect the federal, Delaware or Illinois income tax attributes of the
Certificates.
(g) TITLE TO 1997-A SUBI CERTIFICATE. Prior to the transfer pursuant
to this 1997-A Securitization Trust Agreement, the Transferor has good title to,
and is the sole legal and beneficial owner of, the 1997-A SUBI Certificate, free
and clear of all Liens, except as provided for in the Back-Up Security
Agreement.
(h) CONSENTS AND APPROVALS. The Transferor has obtained or made all
necessary licenses, consents, approvals, waivers and notifications of creditors,
lessors and other nongovernmental Persons, in each case in connection with the
execution and delivery of this 1997-A Securitization Trust Agreement and the
consummation of all the transactions herein contemplated, and the Transferor is
not required to obtain the consent of any other party or the consent, license,
approval, or authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this 1997-A Securitization
Trust Agreement.
SECTION 5.02. LIABILITY OF TRANSFEROR; INDEMNITIES.
(a) The Transferor shall be liable in accordance with this 1997-A
Securitization Trust Agreement only to the extent of the obligations in this
1997-A Securitization Trust Agreement specifically undertaken by the Transferor
in such capacity under this 1997-A Securitization Trust Agreement and shall have
no other obligations or liabilities hereunder.
(b) The Transferor agrees to be, and shall be, liable (as if the
1997-A Securitization Trust were a limited partnership under the California
Revised Limited Partnership Act in which the Transferor is the general partner)
without limitation for all liabilities (including taxes), contracts, expenses,
indemnity
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payments and other charges of the 1997-A Securitization Trust, other than
distributions to Certificateholders.
SECTION 5.03. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF, TRANSFEROR; CERTAIN LIMITATIONS.
(a) Any Person (i) into which the Transferor may be merged or
consolidated, (ii) which may result from any merger, conversion or consolidation
to which the Transferor shall be a party or (iii) which may succeed to all or
substantially all of the business of the Transferor, shall be the successor to
the Transferor under this 1997-A Securitization Trust Agreement without the
execution or filing of any document or any further act on the part of any of the
parties to this 1997-A Securitization Trust Agreement, except that if the
Transferor in any of the foregoing cases is not the surviving entity, then the
surviving entity shall execute an agreement of assumption to perform every
obligation of the Transferor either generally or specifically as provided
herein. The Transferor shall provide prior notice of any merger, consolidation
or succession pursuant to this Section to each Rating Agency.
(b) (i) Subject to subparagraph (ii) below, the purpose of the
Transferor shall be to engage in any lawful activity for which a
corporation may be organized under the laws of the State of California
other than the banking business, the trust company business or the practice
of a profession that is permitted to be incorporated under the California
Corporations Code.
(ii) Notwithstanding subparagraph (b)(i) above, the purpose of the
Transferor shall be limited to the following purposes and activities
incidental to and necessary or convenient to accomplish the following
purposes:
(A) to acquire from time to time from TMCC all right, title and
interest in and to the SUBI Certificates evidencing units of beneficial interest
in the SUBI Assets;
(B) to acquire, own, hold, service, sell, assign, pledge and
otherwise deal with the SUBI Certificates and SUBI Assets, related insurance
policies, related agreements with TMCC and any proceeds or further rights
associated with any of the foregoing;
(C) to sell, assign, transfer, convey and/or pledge all or any part
of each such SUBI Certificate to one or more trusts or other persons or legal
entities pursuant to one or more securitization trust agreements, indentures or
similar agreements (the "Agreements") to be entered into by and among TMCC, as
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servicer, the Transferor and each other pledgee or transferee named therein (the
"transferees");
(D) to sell any series or class of asset-backed certificates or other
securities issued by or evidencing interests in the transferees or obligations
of the transferees or the Transferor under the related Agreements, including the
Investor Certificates ("Securities");
(E) to hold and enjoy all of the rights and privileges of any
Securities so issued under the related Agreements;
(F) to perform its obligations under the Agreements; and
(G) to engage in any activity and to exercise any powers permitted to
corporations under the laws of the State of California that are related or
incidental to the foregoing and necessary, convenient or advisable to accomplish
the foregoing.
(c) Notwithstanding any other provision of this Section and any
provision of law, the Transferor shall not do any of the following:
(i) engage in any business or activity other than as set forth in
clause (b) above;
(ii) without the affirmative vote of a majority of the members of the
Board of Directors of the Transferor (which must include the affirmative
vote of all Independent Directors of the Transferor, as required by
certificate of incorporation of the Transferor), (A) dissolve or liquidate,
in whole or in part, or institute proceedings to be adjudicated bankrupt or
insolvent, (B) consent to the institution of bankruptcy or insolvency
proceedings against it, (C) file a petition seeking or consent to
reorganization or relief under any applicable federal or state law relating
to bankruptcy, (D) consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Transferor or a substantial part of its property, (E) make a general
assignment for the benefit of creditors, (F) admit in writing its inability
to pay its debts generally as they become due, or (G) take any corporate
action in furtherance of the actions set forth in clauses (A) through (F)
above;
(iii) without the affirmative vote of the members of the Board of
Directors of the Transferor (including each Independent Director), merge or
consolidate with any other corporation, company or entity or sell all or
substantially all of its assets or acquire all or substantially all of the
assets or capital stock or other ownership interest of any other
corporation, company or entity; PROVIDED that such restrictions shall not
limit the acquisition of SUBI
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Certificates from TMCC or the ability of the Transferor to sell, assign,
transfer, convey and/or pledge all or any part of any SUBI Certificate in
accordance with Section 5.03(B)(II) hereof, on which there shall be no such
restriction; or
(iv) so long as any outstanding debt of the Transferor or Securities
are rated by any nationally recognized statistical rating agency, issue
unsecuritized notes or otherwise borrow money unless
(A) the Transferor has made a written request to the related
nationally recognized rating agency to issue unsecured notes or incur borrowings
and such notes or borrowings are rated by the related nationally recognized
rating agency the same as or higher than the rating afforded any outstanding
rated debt or Securities, or
(B) such notes or borrowings (1) are fully subordinated (and which
shall provide for payment only after payment in respect of all outstanding rated
debt and/or Securities) or are nonrecourse against any assets of the Transferor
other than the assets pledged to secure such notes or borrowings, (2) do not
constitute a claim against the Transferor in the event that such assets are
insufficient to pay such notes or borrowings, and (3) where such notes or
borrowings are secured by the rated debt or Securities, are fully subordinated
(and which shall provide for payment only after payment in respect of all
outstanding rated debt and/or Securities) to such rated debt or Securities.
SECTION 5.04. LIMITATION ON LIABILITY OF TRANSFEROR AND OTHERS.
The Transferor and any director or officer or employee or agent of the
Transferor may rely in good faith on the advice of counsel or on any document of
any kind, prima facie properly executed and submitted by any Person respecting
any matters arising under this 1997-A Securitization Trust Agreement.
SECTION 5.05. TRANSFEROR MAY OWN INVESTOR CERTIFICATES.
Each of the Transferor and any Person controlling, controlled by or under
common control with the Transferor may in its individual or any other capacity
become the owner or pledgee of Investor Certificates with the same rights as it
would have if it were not the Transferor or such an affiliate thereof except as
otherwise specifically provided in the definition of the term
"Certificateholder." Investor Certificates so owned by or pledged to the
Transferor or such controlling or commonly controlled Person shall have an equal
and proportionate benefit under the provisions of this 1997-A Securitization
Trust Agreement, without preference, priority or distinction as among all of the
Investor Certificates.
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The Transferor will give notice to each Rating Agency if any such controlling or
commonly controlled Person shall at any time become the owner or pledgee of
Investor Certificates.
SECTION 5.06. NO TRANSFER.
The Transferor on behalf of itself and its successors and assigns hereby
covenants that it will not transfer, pledge or assign to any Person the
Transferor Certificate or any part of its right to receive any Excess Amounts
pursuant to Section 3.01(c).
SECTION 5.07. TAX MATTERS PARTNER.
In the event that the 1997-A Securitization Trust is recharacterized as a
partnership for tax purposes, the Transferor shall act as "Tax Matters Partner"
(i) to represent the Transferor and the Class B Certificateholders, in their
capacities as partners in a partnership for tax purposes, before taxing
authorities or courts of competent jurisdiction in any tax matters affecting the
1997-A Securitization Trust as a tax partnership; and (ii) to execute any
agreements or other documents relating to or affecting such tax matters,
including agreements or other documents binding the Class B Certificateholders
with respect to such tax matters or otherwise affecting their rights, including,
but not limited to, extending the statute of limitations for assessment of tax
deficiencies against the Class B Certificateholders and adjusting the 1997-A
Securitization Trust's federal, state or local tax returns. The Transferor
shall not be liable to the 1997-A Securitization Trust or to any
Certificateholder for any action taken or omitted by the Transferor with regard
to such tax matters or otherwise as a result of its holding the position of Tax
Matters Partner.
ARTICLE SIX
THE 1997-A SECURITIZATION TRUSTEE
SECTION 6.01. DUTIES OF TRUSTEE.
(a) The 1997-A Securitization Trustee, both prior to and after the
occurrence of an Event of Servicing Termination under the 1997-A SUBI Servicing
Supplement, undertakes to perform such duties and only such duties as are
specifically set forth in this 1997-A Securitization Trust Agreement.
(b) The 1997-A Securitization Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the 1997-A Securitization Trustee that shall be
specifically required to be furnished pursuant to any provision of this 1997-A
Securitization Trust Agreement, shall examine them to determine whether they
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conform on their face to the requirements of this 1997-A Securitization Trust
Agreement.
(c) No provision of this 1997-A Securitization Trust Agreement shall be
construed to relieve the 1997-A Securitization Trustee from liability for its
own negligent action, its own negligent failure to act, its own bad faith or its
own willful misfeasance; PROVIDED, HOWEVER, that
(i) the duties and obligations of the 1997-A Securitization Trustee
shall be determined solely by the express provisions of this 1997-A
Securitization Trust Agreement, the 1997-A Securitization Trustee shall not
be liable except for the performance of such duties and obligations as are
specifically set forth in this 1997-A Securitization Trust Agreement, no
implied covenants or obligations shall be read into this 1997-A
Securitization Trust Agreement against the 1997-A Securitization Trustee,
the permissive right of the 1997-A Securitization Trustee to do things
enumerated in this 1997-A Securitization Trust Agreement shall not be
construed as a duty and, in the absence of bad faith on the part of the
1997-A Securitization Trustee, the 1997-A Securitization Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the 1997-A Securitization Trustee and conforming on their face to the
requirements of this 1997-A Securitization Trust Agreement;
(ii) the 1997-A Securitization Trustee shall not be personally liable
for an error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the 1997-A Securitization Trustee was
negligent in performing its duties in accordance with the terms of this
1997-A Securitization Trust Agreement; and
(iii) the 1997-A Securitization Trustee shall not be personally
liable with respect to any action taken, suffered or omitted to be taken in
good faith in accordance with the direction of the Holders of Investor
Certificates evidencing not less than 51% of the aggregate Percentage
Interest relating to the time, method and place of conducting any
proceeding for any remedy available to the 1997-A Securitization Trustee,
or exercising any trust or power conferred upon the 1997-A Securitization
Trustee, under this 1997-A Securitization Trust Agreement or the Titling
Trust Agreement (as supplemented by the 1997-A SUBI Supplement).
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(d) The 1997-A Securitization Trustee shall not be required to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties under this 1997-A Securitization Trust Agreement, or in the
exercise of any of its rights or powers, if there shall be reasonable grounds
for believing that the repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(e) All information obtained by the 1997-A Securitization Trustee
regarding the Obligors and the Contracts contained in the 1997-A SUBI, whether
upon the exercise of its rights under this 1997-A Securitization Trust Agreement
or otherwise, shall be maintained by the 1997-A Securitization Trustee in
confidence and shall not be disclosed to any other Person, unless such
disclosure is required by any applicable law or regulation or pursuant to
subpoena.
SECTION 6.02. CERTAIN MATTERS AFFECTING THE 1997-A SECURITIZATION TRUSTEE.
(a) Except as otherwise provided in Section 6.01:
(i) the 1997-A Securitization Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of an authorized signatory, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) the 1997-A Securitization Trustee may consult with counsel and
any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
under this 1997-A Securitization Trust Agreement in good faith and in
accordance with such Opinion of Counsel;
(iii) the 1997-A Securitization Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this 1997-A
Securitization Trust Agreement or the Titling Trust Agreement (as
supplemented by the 1997-A SUBI Supplement), or to institute, conduct or
defend any litigation under this 1997-A Securitization Trust Agreement or
the Titling Trust Agreement (as supplemented by the 1997-A SUBI
Supplement), or in relation to this 1997-A Securitization Trust Agreement
or the Titling Trust Agreement (as supplemented by the 1997-A SUBI
Supplement), at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this 1997-A Securitization
Trust
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Agreement or the Titling Trust Agreement (as supplemented by the 1997-A
SUBI Supplement), unless such Certificateholders shall have offered to the
1997-A Securitization Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or thereby;
(iv) the 1997-A Securitization Trustee shall not be personally liable
for any action taken, suffered or omitted by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this 1997-A Securitization Trust
Agreement;
(v) the 1997-A Securitization Trustee shall not be bound to
recalculate, reverify, or make any investigation into the facts of matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by Holders of Investor
Certificates evidencing not less than 25% of the aggregate Percentage
Interest of any Class; PROVIDED, HOWEVER, that if the payment within a
reasonable time to the 1997-A Securitization Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the 1997-A Securitization Trustee, not
reasonably assured to the 1997-A Securitization Trustee by the security
afforded to it by the terms of this 1997-A Securitization Trust Agreement,
the 1997-A Securitization Trustee may require reasonable indemnity against
such cost, expense or liability as a condition to so proceeding; the
reasonable expense of every such examination shall be paid by the
Transferor or, if paid by the 1997-A Securitization Trustee, shall be
reimbursed by the Transferor upon demand; and nothing in this clause shall
derogate from the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors; and
(vi) the 1997-A Securitization Trustee may execute any of the trusts
or powers under this 1997-A Securitization Trust Agreement or perform any
duties under this 1997-A Securitization Trust Agreement either directly or
by or through agents or attorneys or a custodian.
(b) No Certificateholder will have any right to institute any
proceeding with respect to this 1997-A Securitization Trust Agreement except
upon satisfying the conditions set forth in Section 9.03(c).
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SECTION 6.03. TRUSTEE NOT LIABLE FOR CERTIFICATES OR CONTRACTS.
The 1997-A Securitization Trustee shall make no representations as to the
validity or sufficiency of this 1997-A Securitization Trust Agreement or of the
Certificates (other than the execution by the 1997-A Securitization Trustee on
behalf of the 1997-A Securitization Trust of, and the certificate of
authentication on, the Certificates), or of the 1997-A SUBI or 1997-A SUBI
Certificate. The 1997-A Securitization Trustee shall have no obligation to
perform any of the duties of the Transferor unless explicitly set forth in this
1997-A Securitization Trust Agreement. The 1997-A Securitization Trustee shall
at no time have any responsibility or liability for or with respect to the
legality, validity and enforceability of the 1997-A SUBI or 1997-A SUBI
Certificate or any 1997-A Contract, any ownership interest in any 1997-A Leased
Vehicle, or the maintenance of any such ownership interest, or for or with
respect to the efficacy of the 1997-A Securitization Trust or its ability to
generate the payments to be distributed to Certificateholders under this 1997-A
Securitization Trust Agreement, including without limitation the validity of the
assignment of the 1997-A SUBI or 1997-A SUBI Certificate to the 1997-A
Securitization Trust or of any intervening assignment; the existence, condition,
location and ownership of any 1997-A Contract or 1997-A Leased Vehicle; the
existence and enforceability of any physical damage or credit life or credit
disability insurance; the existence and contents of any 1997-A Contract or any
computer or other record thereof; the completeness of any 1997-A Contract; the
performance or enforcement of any Contract; the compliance by the Transferor
with any covenant or the breach by the Transferor of any warranty or
representation made under this 1997-A Securitization Trust Agreement or in any
related document and the accuracy of any such warranty or representation prior
to the 1997-A Securitization Trustee's receipt of notice or other discovery of
any noncompliance therewith or any breach thereof; the acts or omissions of the
Transferor or the Servicer; or any action by the 1997-A Securitization Trustee
taken at the instruction of the Servicer PROVIDED, HOWEVER, that the foregoing
shall not relieve the 1997-A Securitization Trustee of its obligation to perform
its duties under this 1997-A Securitization Trust Agreement. Except with
respect to a claim based on the failure of the 1997-A Securitization Trustee to
perform its duties under this 1997-A Securitization Trust Agreement or based on
the 1997-A Securitization Trustee's willful misconduct, bad faith or negligence,
no recourse shall be had for any claim based on any provision of this 1997-A
Securitization Trust Agreement, the Certificates, the 1997-A SUBI or 1997-A SUBI
Certificate or assignment thereof against the institution serving as Trustee in
its individual capacity. The 1997-A Securitization Trustee shall not have any
personal obligation, liability or duty whatsoever to any Certificateholder or
any other Person with respect to any such
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claim, and any such claim shall be asserted solely against the 1997-A
Securitization Trust or any indemnitor who shall furnish indemnity as provided
in this 1997-A Securitization Trust Agreement. The 1997-A Securitization
Trustee shall not be accountable for the use or application by the Transferor of
any of the Certificates or of the proceeds of such Certificates, or for the use
or application of any funds paid to the Servicer in respect of the 1997-A SUBI
or 1997-A SUBI Certificate.
SECTION 6.04. TRUSTEE MAY OWN CERTIFICATES.
The 1997-A Securitization Trustee in its individual or any other capacity
may become the owner or pledgee of Certificates with the same rights as it would
have if it were not Trustee.
SECTION 6.05. TRUSTEE'S FEES AND EXPENSES.
The 1997-A Securitization Trustee shall be entitled to reasonable
compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) for all services rendered by
it in the execution of the trusts created by this 1997-A Securitization Trust
Agreement and in the exercise and performance of any of the powers and duties of
the 1997-A Securitization Trustee under this 1997-A Securitization Trust
Agreement, and payment or reimbursement upon its request for all reasonable
expenses, disbursements and advances incurred or made by the 1997-A
Securitization Trustee in its capacity as Trustee in accordance with any of the
provisions of this 1997-A Securitization Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ in each case to the extent their
services are provided in connection with the 1997-A Securitization Trustee's
administration of this 1997-A Securitization Trust Agreement) except any such
expense, disbursement or advance as may arise from its negligence, willful
misfeasance or bad faith or that is the responsibility of Certificateholders
under this 1997-A Securitization Trust Agreement. Such compensation and
reimbursement shall be paid as set forth in Section 3.01(b) hereof.
SECTION 6.06. ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
The 1997-A Securitization Trustee under this 1997-A Securitization Trust
Agreement shall at all times be a national banking association or State banking
institution; and organized and doing business under the laws of any State or the
United States; authorized under such laws to exercise corporate trust powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authorities; and having a
long-term deposit rating no lower than Baa3 by Moody's, so long as Moody's is a
Rating Agency, or be
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otherwise acceptable to each Rating Agency, as evidenced by a letter to such
effect from each of them.
If the 1997-A Securitization Trustee shall publish reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the 1997-A Securitization Trustee shall cease
to be eligible in accordance with the provisions of this Section, the 1997-A
Securitization Trustee shall resign immediately in the manner and with the
effect specified in Section 6.07.
SECTION 6.07. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The 1997-A Securitization Trustee may at any time resign and be
discharged from the trusts created by this 1997-A Securitization Trust Agreement
by giving written notice thereof to the Transferor. Upon receiving such notice
of resignation, the Transferor shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee. If no
successor Trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(b) If at any time the 1997-A Securitization Trustee shall cease to
be eligible in accordance with the provisions of Section 6.06 and shall fail to
resign after written request therefor by the Transferor, or if at any time the
1997-A Securitization Trustee shall be legally unable to act, or shall be
adjudged a bankrupt or insolvent, or a receiver of the 1997-A Securitization
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the 1997-A Securitization Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Transferor may remove the 1997-A Securitization Trustee. If it shall remove the
1997-A Securitization Trustee under the authority of the immediately preceding
sentence, the Transferor shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
1997-A Securitization Trustee so removed and one copy to the successor Trustee,
and arrange for the payment of all fees owed to the outgoing Trustee.
(c) Any resignation or removal of the 1997-A Securitization Trustee
and appointment of a successor Trustee pursuant to any of the provisions of this
Section shall not become
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effective until acceptance of appointment by the successor Trustee as provided
in Section 6.08. The Servicer shall give each Rating Agency notice of any such
resignation or removal of the 1997-A Securitization Trustee and appointment and
acceptance of a successor Trustee.
SECTION 6.08. SUCCESSOR TRUSTEE.
Any successor Trustee appointed as provided in Section 6.07 shall execute,
acknowledge and deliver to the Transferor and to its predecessor Trustee an
instrument accepting such appointment under this 1997-A Securitization Trust
Agreement, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this 1997-A Securitization Trust Agreement,
with like effect as if originally named as Trustee. The predecessor Trustee
shall deliver to the successor Trustee all documents and statements held by it
under this 1997-A Securitization Trust Agreement; and the Transferor and the
predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Trustee all such rights, powers, duties and
obligations. No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall be
eligible under the provisions of Section 6.06. Upon acceptance of appointment
by a successor Trustee as provided in this Section, the Transferor shall cause
notice of the successor of such Trustee under this 1997-A Securitization Trust
Agreement to be mailed to all Certificateholders at their addresses as shown in
the Certificate Register and shall give notice by mail to each Rating Agency.
If the Transferor fails to mail or cause to be mailed such notice within ten
days after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of the Transferor.
SECTION 6.09. MERGER OR CONSOLIDATION OF TRUSTEE.
Any corporation (i) into which the 1997-A Securitization Trustee may be
merged or consolidated, (ii) which may result from any merger, conversion or
consolidation to which the 1997-A Securitization Trustee shall be a party, or
(iii) which may succeed to the corporate trust business of the 1997-A
Securitization Trustee, shall be the successor of the 1997-A Securitization
Trustee hereunder, provided such corporation shall be eligible pursuant to
Section 6.06, 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, except that if the 1997-A Securitization Trustee in any of the
foregoing cases is not the surviving entity, then the surviving entity shall
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execute an agreement of assumption to perform every obligation of the 1997-A
Securitization Trustee, either generally or particularly as provided herein.
Notice of any such event shall be given by the 1997-A Securitization Trustee to
each Rating Agency.
SECTION 6.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this 1997-A Securitization Trust
Agreement, at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the 1997-A Securitization Trust may at the
time be located, the Transferor and the 1997-A Securitization Trustee acting
jointly shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the 1997-A Securitization Trustee to act
as co-trustee, jointly with the 1997-A Securitization Trustee, or separate
trustee or separate trustees, of all or any part of the 1997-A Securitization
Trust, and to vest in such Person, in such capacity and for the benefit of the
Certificateholders, such title to the 1997-A Securitization Trust, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Transferor and the 1997-A
Securitization Trustee may consider necessary or desirable. If the Transferor
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, the 1997-A Securitization Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
1997-A Securitization Trust Agreement shall be required to meet the terms of
eligibility as a successor Trustee pursuant to Section 6.06 and no notice of a
successor Trustee pursuant to Section 6.08 and no notice to Certificateholders
of the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 6.08.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the 1997-A Securitization Trustee shall be conferred upon and
exercised or performed by the 1997-A Securitization 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 1997-A Securitization 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 1997-A Securitization 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 1997-A Securitization Trust or any portion thereof in any such
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jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the 1997-A
Securitization Trustee;
(ii) no trustee under this 1997-A Securitization Trust Agreement
shall be personally liable by reason of any act or omission of any other
trustee under this 1997-A Securitization Trust Agreement; and
(iii) the Transferor and the 1997-A Securitization 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 1997-A Securitization
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this 1997-A
Securitization Trust Agreement and the conditions of this Section. Each
separate trustee and co-trustee, upon its acceptance of the trusts conferred,
shall be vested with the estates or property specified in its instrument of
appointment, either jointly with the 1997-A Securitization Trustee or
separately, as may be provided therein, subject to all the provisions of this
1997-A Securitization Trust Agreement, specifically including every provision of
this 1997-A Securitization Trust Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the 1997-A Securitization Trustee.
Each such instrument shall be filed with the 1997-A Securitization Trustee and a
copy thereof given to the Transferor and the Servicer.
Any separate trustee or co-trustee may at any time appoint the 1997-A
Securitization Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this 1997-A Securitization Trust 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 1997-A Securitization Trustee,
to the extent permitted by law, without the appointment of a new or successor
trustee. Notwithstanding anything to the contrary in this 1997-A Securitization
Trust Agreement, the appointment of any separate trustee or co-trustee shall not
relieve the 1997-A Securitization Trustee of its obligations and duties under
this 1997-A Securitization Trust Agreement.
SECTION 6.11. REPRESENTATIONS AND WARRANTIES OF TRUSTEE.
The 1997-A Securitization Trustee makes the following representations and
warranties on which the Transferor and Certificateholders may rely:
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(i) ORGANIZATION AND GOOD STANDING. The 1997-A Securitization
Trustee is a national banking association organized, existing and in good
standing under the laws of the United States of America.
(ii) POWER AND AUTHORITY. The 1997-A Securitization Trustee has full
power, authority and right to execute, deliver and perform this 1997-A
Securitization Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this 1997-A
Securitization Trust Agreement.
(iii) DUE EXECUTION. This 1997-A Securitization Trust Agreement has
been duly executed and delivered by the 1997-A Securitization Trustee.
(iv) ENFORCEABILITY. This 1997-A Securitization Trust Agreement
constitutes the legal, valid and binding obligation of the 1997-A
Securitization Trustee, enforceable against it in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity.
SECTION 6.12. TAX RETURNS.
The 1997-A Securitization Trustee shall, at the direction of the Servicer
and on behalf of the Transferor, prepare or shall cause to be prepared any
required federal tax information returns (in a manner consistent with the
treatment of the Investor Certificates as indebtedness) and shall file and
distribute such forms as required by law. The Servicer shall prepare or cause
to be prepared any federal and state tax returns that may be required with
respect to the 1997-A Securitization Trust or the 1997-A Securitization Trust
assets and shall deliver any such returns to the 1997-A Securitization Trustee
for signature at least five days prior to the date such returns are required by
law to be filed. The 1997-A Securitization Trust shall not elect to be treated
as an association under Treasury Regulations Section 301.7701-3(a) for federal
income tax purposes.
SECTION 6.13. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
CERTIFICATES.
All rights of action and claims under this 1997-A Securitization Trust
Agreement or the Certificates may be prosecuted and enforced by the 1997-A
Securitization Trustee without the possession of any of the Certificates or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the 1997-A Securitization Trustee shall be brought in
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its own name as trustee. Any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses, disbursements and advances
of the 1997-A Securitization Trustee, its agents and counsel, be for the ratable
benefit of the Certificateholders in respect of which such judgment has been
obtained.
SECTION 6.14. SUIT FOR ENFORCEMENT.
If an Event of Servicing Termination shall occur and be continuing under
the Titling Trust Agreement, as supplemented by the 1997-A SUBI Servicing
Supplement with respect to the 1997-A SUBI Portfolio, the 1997-A Securitization
Trustee, in its discretion may, subject to the provisions of Sections 6.01 and
6.02 hereof and Sections 6.01(b) and 6.01(c) of the 1997-A SUBI Servicing
Supplement, proceed to protect and enforce its rights and the rights of the
Certificateholders under this 1997-A Securitization Trust Agreement, the Titling
Trust Agreement and the 1997-A SUBI Servicing Supplement by a suit, action or
proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained herein or therein or in aid
of the execution of any power granted herein or therein or for the enforcement
of any other legal, equitable or other remedy as the 1997-A Securitization
Trustee, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the 1997-A Securitization Trustee or the
Certificateholders.
SECTION 6.15. RIGHTS OF CERTIFICATEHOLDERS TO DIRECT TRUSTEE.
Holders of Investor Certificates evidencing not less than 25% of the
aggregate Percentage Interest shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the 1997-A
Securitization Trustee under this 1997-A Securitization Trust Agreement
(including to direct the Trustee to take or withhold any action with respect to
the TMCC Demand Notes), or exercising any trust or power conferred on the 1997-A
Securitization Trustee by this 1997-A Securitization Trust Agreement; PROVIDED,
HOWEVER, that (a) if any greater Percentage Interest is required to cause any
action to be taken under the Titling Trust Agreement or the 1997-A SUBI
Supplement by the 1997-A Securitization Trustee in its capacity as a transferee
of the 1997-A SUBI Certificate, the greater Percentage Interest shall prevail;
(b) subject to Sections 6.01 and 6.02, the 1997-A Securitization Trustee shall
have the right to decline to follow any such direction if the 1997-A
Securitization Trustee being advised by counsel determines that the action so
directed may not lawfully be taken, or if the 1997-A Securitization Trustee in
good faith shall determine that the proceedings so directed would be illegal or
subject it to personal liability or be unduly prejudicial to the rights of
Certificateholders not parties to such direction; and (c)
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nothing in this 1997-A Securitization Trust Agreement shall impair the right of
the 1997-A Securitization Trustee to take any action deemed proper by the 1997-A
Securitization Trustee and which is not inconsistent with such direction by the
Certificateholders.
SECTION 6.16. NO PETITION.
The 1997-A Securitization Trustee covenants and agrees that prior to the
date which is one year and one day after the last date upon which (a) each Class
of Investor Certificates has been paid in full, and (b) all obligations due
under any other Securitized Financing have been paid in full, the 1997-A
Securitization Trustee will not institute against, or join any other Person in
instituting against the Transferor, TMCC, the Titling Trustee or the Titling
Trust any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceedings under any federal or state bankruptcy or similar
law. The foregoing shall not limit the 1997-A Securitization Trustee's right to
file any claim in or otherwise take actions with respect to any such proceeding
instituted by any Person not under such a constraint. This Section shall
survive the termination of this 1997-A Securitization Trust Agreement or the
resignation or removal of the 1997-A Securitization Trustee under this 1997-A
Securitization Trust Agreement.
ARTICLE SEVEN
TERMINATION
SECTION 7.01. TERMINATION OF THE 1997-A SECURITIZATION TRUST.
(a) The 1997-A Securitization Trust and the respective obligations
and responsibilities of the Transferor and the 1997-A Securitization Trustee
shall terminate upon the earliest of (i) the maturity, sale or other
liquidation, as the case may be, of the last Outstanding 1997-A Contract and
1997-A Leased Vehicle evidenced by the 1997-A SUBI and the distribution of all
proceeds thereof, together with all amounts on deposit in all 1997-A SUBI
Accounts and the Reserve Fund in the manner provided in Section 3.01, (ii) the
purchase by the Transferor of the corpus of the 1997-A Securitization Trust as
described in Section 7.02 (except that the 1997-A Securitization Trust shall
continue solely for the limited purposes set forth in (b) and (c) below), (iii)
the day following the Monthly Allocation Date on which the Class A-1 Certificate
Balance, the Class A-2 Certificate Balance, the Class A-3 Certificate Balance
and the Class B Certificate Balance have been reduced to zero and all Loss
Amounts, Certificate Principal Loss Amounts and Class B Available Principal
applied pursuant to Section 3.01(e) have been reimbursed or (iv) the expiration,
disposition or termination of the 1997-A SUBI; PROVIDED, HOWEVER, that in no
event shall the trust created by this 1997-A Securitization Trust Agreement
continue beyond the expiration of 21
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years from the death of the last survivor of the descendants of Joseph Kennedy
living on the date of the Agreement. The Transferor shall promptly notify the
1997-A Securitization Trustee and each Rating Agency of any prospective
termination of the 1997-A Securitization Trust.
(b) Notice of any termination, specifying the Monthly Allocation Date
upon which the Certificateholders may surrender their Certificates to the 1997-A
Securitization Trustee for payment of the final distribution and retirement of
the Certificates, shall be given promptly by the 1997-A Securitization Trustee
by letter to Certificateholders mailed not later than the 15th day and not
earlier than the 30th day prior to the date on which such final distribution is
expected to occur specifying (i) the Certificate Payment Date upon which final
payment of the Certificates shall be made upon presentation and surrender of
Certificates at the Corporate Trust Office or such other office of the 1997-A
Securitization Trustee therein specified, (ii) the amount of any such final
payment and (iii) if applicable, that the Record Date otherwise applicable to
such Certificate Payment Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the Corporate Trust Office or
such other office of the 1997-A Securitization Trustee therein specified;
PROVIDED, HOWEVER, that any presentation and surrender of any Definitive
Certificates shall be made to Bankers Trust Company Luxembourg S.A. and any
transfer agent appointed in Hong Kong. The 1997-A Securitization Trustee shall
give such notice to the Certificate Registrar (if other than the 1997-A
Securitization Trustee) at the time such notice is given to Certificateholders
PROVIDED, HOWEVER, that any notice given pursuant to this Section 7.01(b) with
respect to the Definitive Certificates shall be given as follows: (i) for so
long as any Definitive Certificates are listed on the Luxembourg Stock Exchange,
notices to holders of Definitive Certificates will be given by publication in a
leading daily newspaper of general circulation in Luxembourg, or, if publication
in Luxembourg is not practical, in Europe. Such publication is expected to be
made in the LUXEMBOURG WORT; and (ii) for so long as any Definitive Certificates
are listed on The Stock Exchange of Hong Kong Limited, notices to holders of
Definitive Certificates will be given by publication in a leading daily
newspaper of general circulation in the English language in Hong Kong. Such
publication is expected to be made in the SOUTH CHINA MORNING POST. In
addition, if Definitive Certificates are issued, such notices will be mailed to
the addresses of holders thereof at the addresses therefor as they appear in the
Corporate Register maintained by the 1997-A Securitization Trustee prior to such
mailing. Such notices will be deemed to have been given on the date of such
publication or mailing.
In the event such notice is given, in the case of an optional purchase of
the 1997-A Securitization Trust corpus pursuant to
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Section 7.02, the Transferor shall deposit the amount specified in Section 7.02.
Upon presentation and surrender of the Certificates, the 1997-A Securitization
Trustee shall cause to be distributed to Certificateholders so surrendering
amounts distributable on such Certificate Payment Date pursuant to Section 3.01.
No further interest will accrue with respect to any Investor Certificate from
and after the final Certificate Payment Date with respect thereto.
(c) In the event that all of the Certificateholders shall not have
surrendered their Certificates for retirement within six months after the date
specified in the above-mentioned written notice, the 1997-A Securitization
Trustee shall give a second written notice to the remaining Certificateholders
to surrender their Certificates for retirement and receive the final
distribution with respect thereto. If within one year after the second notice
any Certificates shall not have been surrendered for retirement, the 1997-A
Securitization Trustee may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that remain subject to this 1997-A Securitization Trust
Agreement. Any funds remaining in the 1997-A Securitization Trust after
exhaustion of such remedies shall be distributed by the 1997-A Securitization
Trustee at the request of the Transferor to the Transferor, and such remaining
Certificateholders shall look solely to the Transferor for such funds.
SECTION 7.02. OPTIONAL PURCHASE OF 1997-A SUBI.
On each Monthly Allocation Date on or after the Class A-3 Targeted
Maturity Date, if either before or after giving effect to any payment of
principal required to be made on such Monthly Allocation Date, the Certificate
Balance shall be less than or equal to $123,123,151.92 (ten percent (10%) of the
Aggregate Net Investment Value as of the Cutoff Date), the Transferor shall have
the option to purchase the Investor Certificateholders' interest in the corpus
of the 1997-A Securitization Trust. To exercise such option, the Transferor
shall notify the 1997-A Securitization Trustee and the Servicer, in writing, no
later than the fifteenth day of the month preceding the month in which the
Monthly Allocation Date as of which such purchase is to be effected and shall
deposit in the 1997-A SUBI Certificateholders= Account an amount equal to the
greater of (i) the Aggregate Net Investment Value as of the last day of the
preceding Collection Period, and (ii) the sum of (a) the Certificate Balance (b)
the accrued and unpaid Class A-1 Interest Distributable Amount, Class A-2
Interest Distributable Amount, Class A-3 Interest Distributable Amount and Class
B Interest Distributable Amount, (c) any accrued and unpaid Class A-1 Interest
Carryover Shortfall, Class A-2 Interest Carryover Shortfall, Class A-3 Interest
Carryover Shortfall and
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Class B Interest Carryover Shortfall, (d) any unpaid Class A-1 Certificate
Principal Loss Amount, unpaid Class A-2 Certificate Principal Loss Amount,
unpaid Class A-3 Certificate Principal Loss Amount, unpaid Class B Certificate
Principal Loss Amount and unreimbursed Class B Available Principal applied
pursuant to Section 3.01(e), (e) any accrued and unpaid interest on unreimbursed
Certificate Principal Loss Amounts allocated to the Class B Certificates,
through the day preceding the final Certificate Payment Date and (f) any
unreimbursed Maturity Advances. On such Monthly Allocation Date, upon receipt
of such amount, the 1997-A Securitization Trustee shall distribute the amounts
specified in clause (ii) exclusive of the amount in clause (f) to the Holders of
the Certificates to which such amounts relate, and any balance shall be
distributed to the Transferor. The Transferor also shall pay to the Servicer
the aggregate amount of any unreimbursed Advances. Thereupon the Transferor
shall succeed to all of the Investor Certificateholders' interests in and to the
1997-A Securitization Trust corpus.
ARTICLE EIGHT
EARLY AMORTIZATION EVENTS
SECTION 8.01. EARLY AMORTIZATION EVENTS.
If an Early Amortization Event shall occur during the Revolving
Period, then (but in the case of any event described in subparagraph (a), (b),
(c) or (f) of the definition of "Early Amortization Event" after any applicable
grace period set forth in such clause), the Revolving Period shall terminate and
Principal Collections and reimbursed Loss Amounts and Certificate Principal Loss
Amounts will no longer be reinvested in Subsequent Contracts and Subsequent
Leased Vehicles.
SECTION 8.02. ADDITIONAL RIGHTS UPON THE OCCURRENCE OF CERTAIN EVENTS
(a) Following the occurrence of an Early Amortization Event described
in clause (d) or (e) of the definition of "Early Amortization Event" (such
event, an "Insolvency Event"), the Transferor shall promptly give notice to the
1997-A Securitization Trustee of such Insolvency Event. Within 15 days of the
receipt by the 1997-A Securitization Trustee of the notice, the 1997-A
Securitization Trustee may and, upon receipt of a notice from Investor
Certificateholders evidencing more than 51% of the aggregate Percentage Interest
of the Class A Certificates or 51% of the aggregate Percentage Interests of the
Class A Certificates and the Class B Certificates (voting together as a single
class), shall publish a notice in Authorized Newspapers that an Insolvency Event
has occurred and that the 1997-A Securitization Trustee intends to sell, dispose
of or otherwise liquidate the 1997-A SUBI, the 1997-A
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SUBI Certificate and the other property of the 1997-A Securitization Trust in a
commercially reasonable manner. Following such publication, the 1997-A
Securitization Trustee shall, unless otherwise prohibited by applicable law from
any such action, sell, dispose of, or otherwise liquidate the 1997-A SUBI, the
1997-A SUBI Certificate and the other property of the 1997-A Securitization
Trust, in a commercially reasonable manner and on commercially reasonable terms,
which shall include the solicitation of competitive bids, and shall proceed to
consummate the sale, liquidation or disposition thereof as provided above with
the highest bidder; PROVIDED, HOWEVER, that such sale, disposition or other
liquidation shall not be made without the consent of all Holders of Investor
Certificates if a net loss would be realized. The Transferor and the Servicer
shall be permitted to bid for the 1997-A Securitization Trust property. The
1997-A Securitization Trustee may obtain a prior determination from the
conservator, receiver, or trustee in bankruptcy of the Transferor that the terms
and manner of any proposed sale, disposition or liquidation are commercially
reasonable. The provisions of Sections 8.01 and 8.02 shall not be deemed to be
mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of the
1997-A SUBI, the 1997-A SUBI Certificate and the other property of the 1997-A
Securitization Trust pursuant to Section 8.02 (a) above, net of expenses
incurred in such sale, disposition or liquidation, shall be treated as Principal
Collections and Interest Collections received during the Amortization Period;
PROVIDED that such Principal Collections, will be distributed, first, on a PRO
RATA basis, to the Class A-1 Certificateholders, the Class A-2
Certificateholders and the Class A-3 Certificateholders based on their
respective Certificate Balances, and second, to the Class B Certificateholders;
FURTHER PROVIDED that the Servicer on behalf of the 1997-A Securitization
Trustee shall determine conclusively without liability for such determination
the amount of such proceeds which are allocable to Interest Collections and the
amount of such proceeds which are allocable to Principal Collections. On the
day following the Certificate Payment Date on which such proceeds are
distributed to the Investor Certificateholders, the 1997-A Securitization Trust
shall terminate.
ARTICLE NINE
MISCELLANEOUS PROVISIONS
SECTION 9.01. AMENDMENT.
(a) This 1997-A Securitization Trust Agreement and the other
Transaction Documents may be amended by the respective parties thereto, without
the consent of any of the Certificateholders, (i) to cure any ambiguity, mistake
or error, (ii) to correct or supplement any provisions herein or therein that
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may be inconsistent with any provisions hereof or thereof, (iii) to add, change
or eliminate any other provisions hereof or thereof with respect to matters or
questions arising hereunder or thereunder that shall not be inconsistent with
the provisions hereof or thereof, and (iv) to add or amend any provision therein
in connection with permitting transfers of the Class B Certificates; PROVIDED,
HOWEVER, that any such action shall not, in the good faith judgment of the
parties hereto or thereto, adversely affect in any material respect the
interests of the Certificateholders and the Titling Trustee and the 1997-A
Securitization Trustee shall have received an Opinion of Counsel to the effect
that such action shall not affect the legal interests or positions of the
Certificateholders; PROVIDED, HOWEVER, further, that any amendment eliminating
the Reserve Fund or reducing the Specified Reserve Fund Balance shall also
require the Transferor to deliver to the 1997-A Securitization Trustee an
Opinion of Counsel to the effect that after such amendment, for federal income
tax purposes, the 1997-A Securitization Trust will not be treated as an
association taxable as a corporation and the Class A Certificates will, and the
Class B Certificates should, properly be characterized as indebtedness that is
secured by the assets of the 1997-A Securitization Trust. This 1997-A
Securitization Trust Agreement may also be amended by the Transferor and the
1997-A Securitization Trustee to modify the provisions relating to the Requested
Exemption.
(b) This 1997-A Securitization Trust Agreement and the other
Transaction Documents may also be amended from time to time by the respective
parties hereto or thereto including with respect to (i) changing the formula for
determining the Specified Reserve Fund Balance which change would result in a
decrease in the amount of the Specified Reserve Fund Balance, (ii) changing the
manner by which the Reserve Fund is funded, which changes could include
borrowings by the Transferor to fund all or a portion of the Reserve Fund
Initial Deposit (which borrowings would be payable from assets or cash flow
otherwise payable to the Transferor), (iii) changing the remittance schedule for
collection deposits in the 1997-A SUBI Collection Account, (iv) changing the
definition of "Permitted Investments") or (v) to obtain or comply with the
Requested Exemption, if either (A) the 1997-A Securitization Trustee has been
furnished with a letter from each Rating Agency to the effect that such
amendment would not cause its then-current rating of any Rated Certificate to be
qualified, reduced or withdrawn, or (B) the 1997-A Securitization Trustee has
received the consent of the Holders of Investor Certificates representing not
less than 51% of the aggregate Percentage Interests (which consent of any Holder
of an Investor Certificate given pursuant to this Section or pursuant to any
other provision of this 1997-A Securitization Trust Agreement shall be
conclusive and binding on such Holder and on all future Holders of such Investor
Certificate and of any Investor Certificate issued upon the transfer thereof or
in exchange thereof or in lieu thereof whether or not notation of
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such consent is made upon the Investor Certificate); PROVIDED, HOWEVER, that no
such amendment shall (x) except as otherwise provided in Section 9.01(a),
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on the 1997-A SUBI or any 1997-A SUBI
Certificate or distributions that shall be required to be made on any Investor
Certificate or the applicable Certificate Rate or (y) reduce the aforesaid
percentage of the aggregate Percentage Interest of the Investor Certificates of
each Class required to consent to any such amendment, without the consent of the
Holders of all Certificates of such Class then outstanding.
(c) The 1997-A Securitization Trustee shall provide each Rating
Agency prior notice of any proposed amendment hereto and copies of an Opinion of
Counsel, if required pursuant to Section 9.01(a), whether or not such amendment
requires its approval. Any notice of any such amendment or modification as to
which notice is required to be given to any Rating Agency shall contain both the
substance and substantial form of the proposed amendment or modification.
(d) Promptly after the execution of any such amendment or consent,
the 1997-A Securitization Trustee shall furnish written notification of the
substance of such amendment or consent to each Certificateholder. The failure
to send such notification shall not affect the validity of such amendment. It
shall not be necessary for the consent of Certificateholders pursuant to Section
9.01(b) to approve the particular form of any proposed amendment or consent, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization by
Certificateholders of the execution thereof shall be subject to such reasonable
requirements as the 1997-A Securitization Trustee may prescribe.
(e) Prior to the execution of any amendment to this 1997-A
Securitization Trust Agreement, the 1997-A Securitization 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 1997-A
Securitization Trust Agreement. The 1997-A Securitization Trustee may, but
shall not be obligated to, enter into any such amendment which affects the
1997-A Securitization Trustee's own rights, duties or immunities under this
1997-A Securitization Trust Agreement or otherwise.
SECTION 9.02. PROTECTION OF TITLE TO TRUST.
(a) The Transferor shall execute and file, or cause to be executed
and filed, such financing statements and such continuation and other statements,
all in such manner and in such places as may be required by law fully to
preserve, maintain and protect the interest of the Certificateholders and the
1997-A
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Securitization Trustee under this 1997-A Securitization Trust Agreement in the
1997-A SUBI, the 1997-A SUBI Certificate and in the proceeds thereof. The
Transferor shall deliver (or cause to be delivered) to the 1997-A Securitization
Trustee file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) If the Transferor shall change its name, identity or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed by the Transferor in accordance with paragraph
(a) above seriously misleading it shall give the 1997-A Securitization Trustee
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements as
contemplated by Sections 9-402(7) and 9-406 of the UCC as in effect in
California on the date hereof or any successor provision thereof.
(c) The Transferor shall give the 1997-A Securitization Trustee prior
written notice of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly make any such
filing.
(d) The Transferor shall deliver to the 1997-A Securitization Trustee
promptly after the execution and delivery of each amendment to this 1997-A
Securitization Trust Agreement, an Opinion of Counsel either (i) stating that,
in the opinion of such Counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to preserve and
protect the interest of the 1997-A Securitization Trustee in the 1997-A SUBI,
and reciting the details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (ii) stating that, in the opinion of
such Counsel, no such action is necessary to preserve and protect such interest.
(e) The Transferor shall, if and to the extent required by applicable
law, cause the Class A-1 Certificates, the Class A-2 Certificates and the Class
A-3 Certificates to be registered with the Commission pursuant to Section 12(b)
or Section 12(g) of the Exchange Act within the time periods specified in such
Sections.
SECTION 9.03. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this 1997-A Securitization Trust Agreement or the 1997-A
Securitization Trust, nor entitle such Certificateholder's legal representatives
or heirs to claim an accounting or to take any action or commence any proceeding
in any court for a partition or winding up of the 1997-A Securitization
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Trust, nor otherwise affect the rights, obligations and liabilities of the
parties to this 1997-A Securitization Trust Agreement or any of them.
(b) No Certificateholder shall have any right to vote (except as
provided in Sections 8.02 and 9.01) or in any manner otherwise control the
operation and management of the 1997-A Securitization Trust, or the obligations
of the parties to this 1997-A Securitization Trust Agreement, nor shall anything
set forth in this 1997-A Securitization Trust Agreement, or contained in the
terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person by
reason of any action pursuant to any provision of this 1997-A Securitization
Trust Agreement.
(c) No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this 1997-A Securitization Trust Agreement
to institute any suit, action, or proceeding in equity or at law upon or under
or with respect to this 1997-A Securitization Trust Agreement or any other
Transaction Document, unless such Holder previously shall have given to the
1997-A Securitization Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Investor
Certificates evidencing not less than 25% of the aggregate Percentage Interest,
shall have made written request upon the 1997-A Securitization Trustee to
institute such action, suit or proceeding in its own name as Trustee under this
1997-A Securitization Trust Agreement and shall have offered to the 1997-A
Securitization Trustee such reasonable indemnity as it may require against the
costs, expenses, and liabilities to be incurred therein or thereby, and the
1997-A Securitization Trustee, for 30 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit, or proceeding and during such 30-day period, no request or
waiver inconsistent with such written request has been given to the 1997-A
Securitization Trustee pursuant to this Section; it being understood and
intended, and being expressly covenanted by each Certificateholder with every
other Certificateholder and the 1997-A Securitization Trustee, that no one or
more Holders of Certificates shall have any right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this 1997-A
Securitization Trust Agreement or any other Transaction Document to affect,
disturb, or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this 1997-A Securitization
Trust Agreement or any other Transaction Document, except in the manner provided
in this 1997-A Securitization Trust Agreement and for the equal, ratable, and
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section, each and every Certificateholder and
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the 1997-A Securitization Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 9.04. GOVERNING LAW.
THIS 1997-A SECURITIZATION TRUST AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA
WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 9.05. NOTICES.
With respect to all Certificates other than the Definitive Certificates,
all demands, notices and communications under this 1997-A Securitization Trust
Agreement shall be in writing, personally delivered or mailed by certified mail,
return receipt requested, and shall be deemed to have been duly given upon
receipt (i) in the case of the Transferor, to the agent for service as specified
in this 1997-A Securitization Trust Agreement, or at such other address as shall
be designated by the Transferor in a written notice to the 1997-A Securitization
Trustee; (ii) in the case of the 1997-A Securitization Trustee, at the Corporate
Trust Office; (iii) in the case of Standard & Poor's, at 25 Broadway, 20th
Floor, New York, New York 10004, Attention: Asset Backed Surveillance
Department; and (iv) in the case of Moody's, at 99 Church Street, New York, New
York 10007 Attention: ABS Monitoring Department. Any notice required or
permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this 1997-A
Securitization Trust Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder shall receive such notice.
With respect to the Definitive Certificates, all demands, notices and
communications under this 1997-A Securitization Trust Agreement shall be made as
follows: (i) for so long as any Definitive Certificates are listed on the
Luxembourg Stock Exchange, notices to holders of Definitive Certificates will be
given by publication in a leading daily newspaper of general circulation in
Luxembourg, or, if publication in Luxembourg is not practical, in Europe. Such
publication is expected to be made in the LUXEMBOURG WORT; and (ii) for so long
as any Definitive Certificates are listed on The Stock Exchange of Hong Kong
Limited, notices to holders of Definitive Certificates will be given by
publication in a leading daily newspaper of general circulation in the English
language in Hong Kong. Such publication is expected to be made in the SOUTH
CHINA MORNING POST. In addition, if Definitive Certificates are issued, such
notices will be mailed to the addresses of holders thereof at the addresses
therefor as they
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appear in the Corporate Register maintained by the 1997-A Securitization Trustee
prior to such mailing. Such notices will be deemed to have been given on the
date of such publication or mailing.
SECTION 9.06. SEVERABILITY OF PROVISIONS; COUNTERPARTS.
If any one or more of the covenants, agreements, provisions or terms of
this 1997-A Securitization Trust Agreement shall be for any reason whatsoever
held invalid, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this 1997-A Securitization Trust Agreement and shall in no way affect the
validity or enforceability of the other provisions of this 1997-A Securitization
Trust Agreement or of the Certificates or the rights of the Holders thereof.
This 1997-A Securitization Trust Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and all of which counterparts shall constitute but one and the same
instrument.
SECTION 9.07. ASSIGNMENT.
Notwithstanding anything to the contrary contained in this 1997-A
Securitization Trust Agreement, except as provided in Section 5.03, this 1997-A
Securitization Trust Agreement may not be assigned by the Transferor without the
prior written consent of Holders of Investor Certificates evidencing not less
than 51% of the aggregate Percentage Interest. The Transferor shall provide a
copy of any such assignment to each Rating Agency.
SECTION 9.08. CERTIFICATES NONASSESSABLE AND FULLY PAID.
Except as provided in Section 5.02(b) with regard to the Transferor,
Certificateholders shall not be personally liable for obligations of the 1997-A
Securitization Trust. The interests represented by the Certificates shall be
nonassessable for any losses or expenses of the 1997-A Securitization Trust or
for any reason whatsoever, and, upon the execution and authentication thereof by
the 1997-A Securitization Trustee pursuant to Sections 4.02, 4.03 or 4.04, the
Certificates are and shall be deemed fully paid.
ARTICLE TEN
AGENT FOR SERVICE
SECTION 10.01. AGENT FOR SERVICE OF TRANSFEROR.
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The agent for service of process for the Transferor shall be its
Corporate Treasury Manager, at 19001 South Western Avenue, Torrance, California
90501, Attention: Corporate Treasury Manager (fax: 310-787-6194).
SECTION 10.02. AGENT OF TRUSTEE.
The 1997-A Securitization Trustee shall maintain an office or offices or
agency or agencies where notices and demands to or upon the 1997-A
Securitization Trustee in respect of the Certificates and this 1997-A
Securitization Trust Agreement may be served. The initial such office shall be
the Corporate Trust Office. The 1997-A Securitization Trustee shall give prompt
written notice to the Transferor, the Servicer and Certificateholders of any
change in the location of the Certificate Register or any such office or agency.
Certificates shall be surrendered for transfer or exchange not at this office,
but as set forth in Section 4.07.
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IN WITNESS WHEREOF, the parties have caused this 1997-A Securitization
Trust Agreement to be duly executed by their respective officers as of the day
and year first above written.
TOYOTA LEASING, INC.
as Transferor
By: /s/ Gregory Willis
-----------------------------------
Name: Gregory Willis
Title:
U.S. BANK NATIONAL ASSOCIATION,
as 1997-A Securitization Trustee
By: /s/ Steven E. Charles
-----------------------------------
Name: Steven E. Charles
Title: Vice President
<PAGE>
EXHIBIT A-1
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.
TOYOTA AUTO LEASE TRUST 1997-A
6.20% AUTO LEASE ASSET BACKED CERTIFICATE, CLASS A-1
evidencing a percentage interest in the distributions allocable to the Investor
Certificates, as defined below, evidencing an undivided interest in the 1997-A
Securitization Trust, as defined below, the property of which includes, among
other things, a special unit of beneficial interest (the "1997-A SUBI") in
Toyota Lease Trust, a Delaware business trust (the "Titling Trust"), which
1997-A SUBI represents a beneficial interest in a pool of retail lease contracts
for new and used automobiles and light duty trucks (and the related automobiles
and light-duty trucks) entered into by various automobile and light duty truck
dealers pursuant to contractual arrangements with Toyota Lease Trust, and which
1997-A SUBI was originally issued to Toyota Leasing, Inc. and then to the 1997-A
Securitization Trust.
(This Certificate does not represent an obligation of, or an interest in, Toyota
Leasing, Inc., Toyota Motor Credit Corporation, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective affiliates.)
Aggregate Denominations of
all Class A-1 Certificates: CUSIP #892317 AA 6
$410,000,000
Number A-1- Denomination: $____________
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
_______________________________ ($____________) nonassessable, fully-paid,
fractional undivided interest in the Toyota Auto Lease Trust 1997-A (the "1997-A
Securitization Trust") formed by Toyota
A-1-1
<PAGE>
Leasing, Inc., a California corporation, as Transferor (the "Transferor"). The
1997-A Securitization Trust was created pursuant to a 1997-A Securitization
Trust Agreement dated as of September 1, 1997 (the "Agreement"), between the
Transferor and U.S. Bank National Association, a national banking association,
as trustee (the "1997-A Securitization Trustee"). A summary of certain of the
pertinent provisions of the Agreement is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates issued under
the Agreement and designated as "Toyota Auto Lease Trust 1997-A 6.20% Auto Lease
Asset Backed Certificates, Class A-1" (the "Class A-1 Certificates"). Also
issued under the Agreement are Certificates designated as "Toyota Auto Lease
Trust 1997-A 6.35% Auto Lease Asset Backed Certificates, Class A-2" (the "Class
A-2 Certificates"), Certificates designated as "Toyota Auto Lease Trust 1997-A
6.45% Auto Lease Asset Backed Certificates, Class A-3" (the "Class A-3
Certificates" and, together with the Class A-1 Certificates and the Class A-2
Certificates, the "Class A Certificates"), Certificates designated as "Toyota
Auto Lease Trust 1997-A 6.75% Auto Lease Asset Backed Certificates, Class B"
(the "Class B Certificates" and, together with the Class A Certificates, the
"Investor Certificates") and a Certificate designated as the "Toyota Auto Lease
Trust 1997-A Asset Backed Transferor Certificate" (the "Transferor Certificate"
and, together with the Investor Certificates, the "Certificates"). The Class B
Certificates are subordinated to the Class A Certificates and the Transferor
Certificate is subordinated to the Investor Certificates to the extent described
in the Agreement. This Class A-1 Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class A-1 Certificate by virtue of the acceptance hereof assents
and by which such Holder is bound.
The property of the 1997-A Securitization Trust includes, among other
things, the 1997-A SUBI (exclusive of monies and payments due or payable under
any Residual Value Insurance Policy and the right to receive such amounts),
which 1997-A SUBI represents a beneficial interest in a pool of retail
automobile and light duty truck lease contracts ("Contracts") and the new and
used automobiles and light duty trucks leased thereby ("Leased Vehicles") (such
pool of Contracts and Leased Vehicles, the "1997-A SUBI Portfolio") entered into
by various automobile and light duty truck dealers pursuant to contractual
arrangements with the Titling Trust. Toyota Motor Credit Corporation acts as
servicer (in that capacity, the "Servicer") of the 1997-A SUBI Portfolio.
During the Revolving Period, Principal Collections allocable to the 1997-A SUBI
generally will be applied towards the allocation to the 1997-A SUBI Portfolio of
Subsequent Contracts and Subsequent Leased
A-1-2
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Vehicles from among all other unallocated Contracts and Leased Vehicles owned by
the Titling Trust.
Under the Agreement, there will be distributed on the 25th day of March and
September or, to the extent provided in the Agreement, on the 25th day of each
month, or if such 25th day is not a Business Day, the next succeeding Business
Day (each, a "Certificate Payment Date"), commencing on March 25, 1998 (except
as provided otherwise in the Agreement), to the Person in whose name this Class
A-1 Certificate is registered at the close of business on the calendar day
immediately preceding such Certificate Payment Date or, if Definitive
Certificates have been issued, the last day of the immediately preceding
calendar month (the "Record Date"), such Class A-1 Certificateholder's
Percentage Interest in the amount distributed on the Class A-1 Certificates
pursuant to the terms of the Agreement, all to the extent and as more
specifically set forth in the Agreement. Except to the extent provided
otherwise in the Agreement, no principal payments shall be made in respect of
the Class A-2 Certificates until the Class A-1 Certificates have been paid in
full, no principal payments shall be made in respect of the Class A-3
Certificates until the Class A-2 Certificates have been paid in full and no
principal payments will be made in respect of the Class B Certificates until the
Class A-3 Certificates have been paid in full. Except as provided otherwise in
the Agreement, the principal of this Class A-1 Certificate shall be
distributable on the Targeted Maturity Date, which shall be September 27, 1999.
The Stated Maturity Date of this Class A-1 Certificate is April 26, 2004.
Distributions on this Class A-1 Certificate will be made by the 1997-A
Securitization Trustee by check mailed to the Class A-1 Certificateholder of
record in the Certificate Register without the presentation or surrender of this
Class A-1 Certificate or the making of any notation hereon except that with
respect to Class A-1 Certificates registered in the name of Cede & Co., the
nominee for The Depository Trust Company, distributions will be made by wire
transfer of immediately available funds. Except as otherwise provided in the
Agreement and notwithstanding the foregoing, the final distribution on this
Class A-1 Certificate will be made after due notice by the 1997-A Securitization
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Class A-1 Certificate at the Corporate Trust Office of the
1997-A Securitization Trustee.
It is the intention of the Transferor and the Holders of Investor
Certificates that the Investor Certificates will be indebtedness for federal,
state and local income and franchise tax purposes and for purposes of any other
tax imposed on or measured by income. The Transferor, the 1997-A Securitization
Trustee and the Holder of this Certificate (or Certificate Owner) by acceptance
of this Certificate (or, in the case of a Certificate Owner, by virtue of such
Certificate Owner's acquisition of a beneficial
A-1-3
<PAGE>
interest herein) agree to treat the Investor Certificates (or beneficial
interests therein), for purposes of federal, state and local income or franchise
taxes and any other tax imposed on or measured by income, as indebtedness and to
report the transactions contemplated by the Agreement on all applicable tax
returns in a manner consistent with such treatment. Each Holder of this
Certificate agrees that it will cause any Certificate Owner acquiring an
interest in this Certificate through it to comply with the Agreement as to
treatment as indebtedness for federal, state and local income and franchise tax
purposes and for purposes of any other tax imposed on or measured by income.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of such Certificate Owner's acquisition of
a beneficial interest herein) waives any claim to any proceeds or assets of the
Titling Trustee and to all assets of the Titling Trust other than those from
time to time included in the 1997-A SUBI Assets and those proceeds or assets
derived from or earned by such 1997-A SUBI Assets (excluding the rights to
proceeds of the Residual Value Insurance Policy).
In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a) of the Agreement and herein, it is
finally determined that the Class A-1 Certificates do not evidence indebtedness
of the Transferor for all income and franchise tax purposes, but rather
represent an equity interest in the assets of the 1997-A Securitization Trust,
then the Holder (and each Certificate Owner hereof with respect hereto by virtue
of acquiring a beneficial interest herein), agrees (i) to treat such
Certificates, together with the Transferor Certificate, as representing an
interest in a partnership for all tax purposes, (ii) to treat all payments in
respect of such Certificates (to the extent not a return of capital) as a
"guaranteed payment" thereon made pursuant to Section 707(c) of the Code, and
(iii) to allocate all other items of income, gain, deduction, loss or credit
with respect to the assets and operations of the 1997-A Securitization Trust to
the Transferor.
The Certificates do not represent an obligation of, or an interest in, the
Transferor, the Servicer, the Titling Trust, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective Affiliates. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the 1997-A SUBI and 1997-A SUBI Certificate and certain monies on deposit in the
Reserve Fund and in certain other accounts established for the benefit of the
Certificateholders, in each case to the extent and as more specifically set
forth in the Agreement. A copy of the Agreement may be examined during normal
business hours at the Corporate Trust Office of the 1997-A Securitization
Trustee, at the offices of Merrill Lynch & Co. in Hong Kong (initially at Asia
Pacific Financial, 3 Garden Road), at the offices of Bankers Trust Company
Luxembourg S.A. in Luxembourg (initially at 14 Boulevard
A-1-4
<PAGE>
F.D. Roosevelt, L-450 Luxembourg) and at such other places, if any, designated
by the 1997-A Securitization Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Transferor and the 1997-A Securitization Trustee without the
consent of any Certificateholders. In certain limited circumstances, the
Agreement may only be amended with the consent of the Holders of Investor
Certificates evidencing not less than 51% of the aggregate Percentage Interest
of all Investor Certificates, voting together as a single class. 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 herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the 1997-A Securitization Trustee in its capacity as
Certificate Registrar, or at the office of the agent of the 1997-A
Securitization Trustee in its capacity as Certificate Registrar, who shall
initially be First Trust of New York, National Association, 100 Wall Street,
20th Floor, New York, New York 10005, in the Borough of Manhattan, the City of
New York, and, with respect to the Definitive Certificates only, a transfer
agent appointed in Hong Kong and Luxembourg, or at the appropriate office of any
successor Certificate Registrar, accompanied by a written instrument of transfer
in form satisfactory to the 1997-A Securitization Trustee and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Class A-1 Certificates of
authorized denominations and of a like aggregate fractional undivided interest
will be issued to the designated transferee.
The Class A-1 Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class A-1 Certificate in a smaller minimum denomination
representing any remaining portion of the Initial Class A-1 Certificate
Balance). As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class, of authorized denominations of a like aggregate principal amount, as
requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the 1997-A Securitization
Trustee may require
A-1-5
<PAGE>
payment of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
Prior to due presentation of this Certificate for registration of transfer,
the 1997-A Securitization Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Class A-1 Certificate
is registered as the owner hereof for the purpose of receiving distributions and
for all other purposes, and neither the 1997-A Securitization Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and the
1997-A Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them pursuant
to the Agreement and the disposition of all property held as part of the 1997-A
Securitization Trust. The Transferor may at its option purchase the corpus of
the 1997-A Securitization Trust at a price specified in the Agreement, and such
purchase of the 1997-A SUBI and 1997-A SUBI Certificate and other property of
the 1997-A Securitization Trust will effect early retirement of the
Certificates; PROVIDED, HOWEVER, such right of purchase is exercisable only on
the Monthly Allocation Date on or after the Class A-3 Targeted Maturity Date, if
either before or after giving effect to any payments of principal required to be
made on such Monthly Allocation Date, the Certificate Balance shall be less than
or equal to $123,123,151.92 (ten percent (10%) of the Aggregate Net Investment
Value as of the Cutoff Date).
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of acquiring a beneficial interest herein)
covenants and agrees that prior to the date which is one year and one day after
the last date upon which (a) each Class of Investor Certificates has been paid
in full, and (b) all obligations due under any other Securitized Financing have
been paid in full, the Holder and/or Certificate Owner will not institute
against, or join any other Person in instituting against the Transferor, Toyota
Motor Credit Corporation, the 1997-A Securitization Trust, the Titling Trustee
or the Titling Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law. The foregoing shall not limit the Holder's and/or
Certificate Owner's right to file any claim in or otherwise take actions with
respect to any such proceeding instituted by any Person not under such a
constraint. This non-petition covenant shall survive the termination of the
Agreement.
A-1-6
<PAGE>
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the 1997-A Securitization Trustee, by manual signature,
this Class A-1 Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
A-1-7
<PAGE>
IN WITNESS WHEREOF, the 1997-A Securitization Trustee on behalf of the
1997-A Securitization Trust and not in its individual capacity has caused this
Class A-1 Certificate to be duly executed.
Dated: September 24, 1997
TOYOTA AUTO LEASE TRUST 1997-A
BY: U.S. BANK NATIONAL ASSOCIATION,
AS 1997-A SECURITIZATION TRUSTEE
By:
--------------------------------
Authorized Officer
A-1-8
<PAGE>
Certificate of Authentication
This is one of the Class A-1 Certificates referred
to in the within-mentioned Agreement.
U.S. BANK NATIONAL ASSOCIATION, as
1997-A Securitization Trustee
By:
--------------------------------
A-1-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*
-----------------------------
Signature Guaranteed:
*
-----------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-1-10
<PAGE>
EXHIBIT A-2
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.
TOYOTA AUTO LEASE TRUST 1997-A
6.35% AUTO LEASE ASSET BACKED CERTIFICATE, CLASS A-2
evidencing a percentage interest in the distributions allocable to the Investor
Certificates, as defined below, evidencing an undivided interest in the 1997-A
Securitization Trust, as defined below, the property of which includes, among
other things, a special unit of beneficial interest (the "1997-A SUBI") in
Toyota Lease Trust, a Delaware business trust (the "Titling Trust), which 1997-A
SUBI represents a beneficial interest in a pool of retail lease contracts for
new and used automobiles and light duty trucks (and the related automobiles and
light-duty trucks) entered into by various automobile and light duty truck
dealers pursuant to contractual arrangements with Toyota Lease Trust, and which
1997-A SUBI was originally issued to Toyota Leasing, Inc. and then to the 1997-A
Securitization Trust.
(This Certificate does not represent an obligation of, or an interest in, Toyota
Leasing, Inc., Toyota Motor Credit Corporation, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective affiliates.)
Aggregate Denominations of
all Class A-2 Certificates: CUSIP #892317 AB 4
$650,000,000
Number A-2-__ Denomination: $__________
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
____________________________ ($__________) nonassessable, fully-paid, fractional
undivided interest in the Toyota Auto Lease Trust 1997-A (the "1997-A
Securitization Trust") formed by Toyota
A-2-1
<PAGE>
Leasing, Inc., a California corporation, as Transferor (the "Transferor"). The
1997-A Securitization Trust was created pursuant to a 1997-A Securitization
Trust Agreement dated as of September 1, 1997 (the "Agreement"), between the
Transferor and U.S. Bank National Association, a national banking association,
as trustee (the "1997-A Securitization Trustee"). A summary of certain of the
pertinent provisions of the Agreement is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates issued under
the Agreement and designated as "Toyota Auto Lease Trust 1997-A 6.35% Auto Lease
Asset Backed Certificates, Class A-2" (the "Class A-2 Certificates"). Also
issued under the Agreement are Certificates designated as "Toyota Auto Lease
Trust 1997-A 6.20% Auto Lease Asset Backed Certificates, Class A-1" (the
"Class A-1 Certificates"), Certificates designated as "Toyota Auto Lease Trust
1997-A 6.45% Auto Lease Asset Backed Certificates, Class A-3" (the "Class A-3
Certificates" and, together with the Class A-1 Certificates and the Class A-2
Certificates, the "Class A Certificates"), Certificates designated as "Toyota
Auto Lease Trust 1997-A 6.75% Auto Lease Asset Backed Certificates, Class B"
(the "Class B Certificates" and, together with the Class A Certificates, the
"Investor Certificates") and a Certificate designated as the "Toyota Auto Lease
Trust 1997-A Asset Backed Transferor Certificate" (the "Transferor Certificate"
and, together with the Investor Certificates, the "Certificates"). The Class B
Certificates are subordinated to the Class A Certificates and the Transferor
Certificate is subordinated to the Investor Certificates to the extent described
in the Agreement. This Class A-2 Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class A-2 Certificate by virtue of the acceptance hereof assents
and by which such Holder is bound.
The property of the 1997-A Securitization Trust includes, among other
things, the 1997-A SUBI (exclusive of monies and payments due or payable under
any Residual Value Insurance Policy and the right to receive such amounts),
which 1997-A SUBI represents a beneficial interest in a pool of retail
automobile and light duty truck lease contracts ("Contracts") and the new and
used automobiles and light duty trucks leased thereby ("Leased Vehicles") (such
pool of Contracts and Leased Vehicles; the "1997-A SUBI Portfolio") entered into
by various automobile and light duty truck dealers pursuant to contractual
arrangements with the Titling Trust. Toyota Motor Credit Corporation acts as
servicer (in that capacity, the "Servicer") of the 1997-A SUBI Portfolio.
During the Revolving Period, Principal Collections allocable to the 1997-A SUBI
generally will be applied towards the allocation to the 1997-A SUBI Portfolio of
additional qualifying Contracts and Leased
A-2-2
<PAGE>
Vehicles from among all Subsequent Contracts and Subsequent Leased Vehicles
owned by the Titling Trust.
Under the Agreement, there will be distributed on the 25th day of March and
September or, to the extent provided in the Agreement, on the 25th day of each
month, or if such 25th day is not a Business Day, the next succeeding Business
Day (each, a "Certificate Payment Date"), commencing on March 25, 1998 (except
as provided otherwise in the Agreement), to the Person in whose name this Class
A-2 Certificate is registered at the close of business on the calendar day
immediately preceding such Certificate Payment Date or, if Definitive
Certificates have been issued, the last day of the immediately preceding
calendar month (the "Record Date"), such Class A-2 Certificateholder's
Percentage Interest in the amount distributed on the Class A-2 Certificates
pursuant to the terms of the Agreement, all to the extent and as more
specifically set forth in the Agreement. Except to the extent provided
otherwise in the Agreement, no principal payments shall be made in respect of
the Class A-2 Certificates until the Class A-1 Certificates have been paid in
full, no principal payments shall be made in respect of the Class A-3
Certificates until the Class A-2 Certificates have been paid in full and no
principal payments shall be made in respect of the Class B Certificates until
the Class A-3 Certificates have been paid in full. Except as provided otherwise
in the Agreement, the principal of this Class A-2 Certificate shall be
distributable on the Class A-2 Targeted Maturity Date, which shall be September
25, 2000. The Stated Maturity Date of this Class A-2 Certificate is April 26,
2004.
Distributions on this Class A-2 Certificate will be made by the 1997-A
Securitization Trustee by check mailed to the Class A-2 Certificateholder of
record in the Certificate Register without the presentation or surrender of this
Class A-2 Certificate or the making of any notation hereon except that with
respect to Class A-2 Certificates registered in the name of Cede & Co., the
nominee for The Depository Trust Company, distributions will be made by wire
transfer of immediately available funds. Except as otherwise provided in the
Agreement and notwithstanding the foregoing, the final distribution on this
Class A-2 Certificate will be made after due notice by the 1997-A Securitization
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Class A-2 Certificate at the Corporate Trust Office of the
1997-A Securitization Trustee.
It is the intention of the Transferor and the Holders of Investor
Certificates that the Investor Certificates will be indebtedness for federal,
state and local income and franchise tax purposes and for purposes of any other
tax imposed on or measured by income. The Transferor, the 1997-A Securitization
Trustee and the Holder of this Certificate (or Certificate Owner) by acceptance
of this Certificate (or, in the case of a Certificate Owner, by virtue of such
Certificate Owner's acquisition of a beneficial
A-2-3
<PAGE>
interest herein) agree to treat the Investor Certificates (or beneficial
interest therein), for purposes of federal, state and local income or franchise
taxes and any other tax imposed on or measured by income, as indebtedness and to
report the transactions contemplated by the Agreement on all applicable tax
returns in a manner consistent with such treatment. Each Holder of this
Certificate agrees that it will cause any Certificate Owner acquiring an
interest in this Certificate through it to comply with the Agreement as to
treatment as indebtedness for federal, state and local income and franchise tax
purposes and for purposes of any other tax imposed on or measured by income.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of such Certificate Owner's acquisition of
a beneficial interest herein) waives any claim to any proceeds or assets of the
Titling Trustee and to all assets of the Titling Trust other than those from
time to time included in the 1997-A SUBI Assets and those proceeds or assets
derived from or earned by such 1997-A SUBI Assets (excluding the rights to
proceeds of the Residual Value Insurance Policy).
In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a) of the Agreement and herein, it is
finally determined that the Class A-2 Certificates do not evidence indebtedness
of the Transferor for all income and franchise tax purposes, but rather
represent an equity interest in the assets of the 1997-A Securitization Trust,
then the Holder (and each Certificate Owner hereof with respect hereto by virtue
of acquiring a beneficial interest herein), agrees (i) to treat such
Certificates, together with the Transferor Certificate, as representing an
interest in a partnership for all tax purposes, (ii) to treat all payments in
respect of such Certificates (to the extent not a return of capital) as a
"guaranteed payment" thereon made pursuant to Section 707(c) of the Code, and
(iii) to allocate all other items of income, gain, deduction, loss or credit
with respect to the assets and operations of the 1997-A Securitization Trust to
the Transferor.
The Certificates do not represent an obligation of, or an interest in, the
Transferor, the Servicer, the Titling Trust, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective Affiliates. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the 1997-A SUBI and 1997-A SUBI Certificate and certain monies on deposit in the
Reserve Fund and in certain other accounts established for the benefit of the
Certificateholders, in each case to the extent and as more specifically set
forth in the Agreement. A copy of the Agreement may be examined during normal
business hours at the Corporate Trust Office of the 1997-A Securitization
Trustee, at the offices of Merrill Lynch & Co. in Hong Kong (initially at Asia
Pacific Financial, 3 Garden Road), at the offices of Bankers Trust Company
Luxembourg S.A. in Luxembourg (initially at 14 Boulevard
A-2-4
<PAGE>
F.D. Roosevelt, L-450 Luxembourg) and at such other places, if any, designated
by the 1997-A Securitization Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Transferor and the 1997-A Securitization Trustee without the
consent of any Certificateholders. In certain limited circumstances, the
Agreement may only be amended with the consent of the Holders of Investor
Certificates evidencing not less than 51% of the aggregate Percentage Interest
of all Investor Certificates, voting together as a single class. 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 herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the 1997-A Securitization Trustee in its capacity as
Certificate Registrar, or at the office of the agent of the 1997-A
Securitization Trustee in its capacity as Certificate Registrar, who shall
initially be First Trust of New York, National Association, 100 Wall Street,
20th Floor, New York, New York 10005, in the Borough of Manhattan, the City of
New York, and, with respect to the Definitive Certificates only, a transfer
agent appointed in Hong Kong and Luxembourg, or at the appropriate office of any
successor Certificate Registrar, accompanied by a written instrument of transfer
in form satisfactory to the 1997-A Securitization Trustee and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Class A-2 Certificates of
authorized denominations and of a like aggregate fractional undivided interest
will be issued to the designated transferee.
The Class A-2 Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class A-2 Certificate in a smaller minimum denomination
representing any remaining portion of the Initial Class A-2 Certificate
Balance). As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class, of authorized denominations of a like aggregate principal amount, as
requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the 1997-A Securitization
Trustee may require
A-2-5
<PAGE>
payment of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
Prior to due presentation of this Certificate for registration of transfer,
the 1997-A Securitization Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Class A-2 Certificate
is registered as the owner hereof for the purpose of receiving distributions and
for all other purposes, and neither the 1997-A Securitization Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and the
1997-A Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them pursuant
to the Agreement and the disposition of all property held as part of the 1997-A
Securitization Trust. The Transferor may at its option purchase the corpus of
the 1997-A Securitization Trust at a price specified in the Agreement, and such
purchase of the 1997-A SUBI and 1997-A SUBI Certificate and other property of
the 1997-A Securitization Trust will effect early retirement of the
Certificates; PROVIDED, HOWEVER, such right of purchase is exercisable only on
the Monthly Allocation Date on or after the Class A-3 Targeted Maturity Date, if
either before or after giving effect to any payments of principal required to be
made on such Monthly Allocation Date, the Certificate Balance shall be less than
or equal to $123,123,151.92 (ten percent (10%) of the Aggregate Net Investment
Value as of the Cutoff Date).
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of acquiring a beneficial interest herein)
covenants and agrees that prior to the date which is one year and one day after
the last date upon which (a) each Class of Investor Certificates has been paid
in full, and (b) all obligations due under any other Securitized Financing have
been paid in full, the Holder and/or Certificate Owner will not institute
against, or join any other Person in instituting against the Transferor, Toyota
Motor Credit Corporation, the 1997-A Securitization Trust, the Titling Trustee
or the Titling Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law. The foregoing shall not limit the Holder's and/or
Certificate Owner's right to file any claim in or otherwise take actions with
respect to any such proceeding instituted by any Person not under such a
constraint. This non-petition covenant shall survive the termination of the
Agreement.
A-2-6
<PAGE>
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the 1997-A Securitization Trustee, by manual signature,
this Class A-2 Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
A-2-7
<PAGE>
IN WITNESS WHEREOF, the 1997-A Securitization Trustee on behalf of the
1997-A securitization Trust and not in its individual capacity has caused this
Class A-2 Certificate to be duly executed.
Dated: September 24, 1997
TOYOTA AUTO LEASE TRUST 1997-A
By: U.S. BANK NATIONAL ASSOCIATION,
AS 1997-A SECURITIZATION TRUSTEE
By:
--------------------------------
Authorized Officer
A-2-8
<PAGE>
Certificate of Authentication
This is one of the Class A-2 Certificates referred
to in the within-mentioned Agreement.
U.S. BANK NATIONAL ASSOCIATION, as
1997-A Securitization Trustee
By:
--------------------------------
A-2-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*
-----------------------------
Signature Guaranteed:
*
-----------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-2-10
<PAGE>
EXHIBIT A-3
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.
TOYOTA AUTO LEASE TRUST 1997-A
6.45% AUTO LEASE ASSET BACKED CERTIFICATE, CLASS A-3
evidencing a percentage interest in the distributions allocable to the Investor
Certificates, as defined below, evidencing an undivided interest in the 1997-A
Securitization Trust, as defined below, the property of which includes, among
other things, a special unit of beneficial interest (the "1997-A SUBI") in
Toyota Lease Trust, a Delaware business trust (the "Titling Trust"), which
1997-A SUBI represents a beneficial interest in a pool of retail lease contracts
for new and used automobiles and light duty trucks (and the related automobiles
and light-duty trucks) entered into by various automobile and light duty truck
dealers pursuant to contractual arrangements with Toyota Lease Trust, and which
1997-A SUBI was originally issued to Toyota Leasing, Inc. and then to the 1997-A
Securitization Trust.
(This Certificate does not represent an obligation of, or an interest in, Toyota
Leasing, Inc., Toyota Motor Credit Corporation, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective affiliates.)
Aggregate Denominations of
all Class A-3 Certificates: CUSIP #892317 AC 2
$72,750,000
Number A-3-__ Denomination: $____________
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
_______________________________ ($____________) nonassessable, fully-paid,
fractional undivided interest in the Toyota Auto Lease Trust 1997-A (the "1997-A
Securitization Trust") formed by Toyota
A-3-1
<PAGE>
Leasing, Inc., a California corporation, as Transferor (the "Transferor"). The
1997-A Securitization Trust was created pursuant to a 1997-A Securitization
Trust Agreement dated as of September 1, 1997 (the "Agreement"), between the
Transferor and U.S. Bank National Association, a national banking association,
as trustee (the "1997-A Securitization Trustee"). A summary of certain of the
pertinent provisions of the Agreement is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates issued under
the Agreement and designated as "Toyota Auto Lease Trust 1997-A 6.45% Auto Lease
Asset Backed Certificates, Class A-3" (the "Class A-3 Certificates"). Also
issued under the Agreement are Certificates designated as "Toyota Auto Lease
Trust 1997-A 6.20% Auto Lease Asset Backed Certificates, Class A-1" (the
"Class A-1 Certificates"), Certificates designated as "Toyota Auto Lease Trust
1997-A 6.35% Auto Lease Asset Backed Certificates, Class A-2" (the "Class A-2
Certificates" and, together with the Class A-1 Certificates and the Class A-3
Certificates, the "Class A Certificates"), Certificates designated as "Toyota
Auto Lease Trust 1997-A 6.75% Auto Lease Asset Backed Certificates, Class B"
(the "Class B Certificates" and, together with the Class A Certificates, the
"Investor Certificates") and a Certificate designated as the "Toyota Auto Lease
Trust 1997-A Asset Backed Transferor Certificate" (the "Transferor Certificate"
and, together with the Investor Certificates, the "Certificates"). The Class B
Certificates are subordinated to the Class A Certificates and the Transferor
Certificate is subordinated to the Investor Certificates to the extent described
in the Agreement. This Class A-3 Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class A-3 Certificate by virtue of the acceptance hereof assents
and by which such Holder is bound.
The property of the 1997-A Securitization Trust includes, among other
things, the 1997-A SUBI (exclusive of monies and payments due or payable under
any Residual Value Insurance Policy and the right to receive such amounts),
which 1997-A SUBI represents a beneficial interest in a pool of retail
automobile and light duty truck lease contracts ("Contracts") and the new and
used automobiles and light duty trucks leased thereby ("Leased Vehicles") (such
pool of Contracts and Leased Vehicles; the "1997-A SUBI Portfolio") entered into
by various automobile and light duty truck dealers pursuant to contractual
arrangements with the Titling Trust. Toyota Motor Credit Corporation acts as
servicer (in that capacity, the "Servicer") of the 1997-A SUBI Portfolio.
During the Revolving Period, Principal Collections allocable to the 1997-A SUBI
generally will be applied towards the allocation to the 1997-A SUBI Portfolio of
Subsequent Contracts and Subsequent Leased
A-3-2
<PAGE>
Vehicles from among all other unallocated Contracts and Leased Vehicles owned by
the Titling Trust.
Under the Agreement, there will be distributed on the 25th day of March and
September or, to the extent provided in the Agreement, on the 25th day of each
month, or if such 25th day is not a Business Day, the next succeeding Business
Day (each, a "Certificate Payment Date"), commencing on March 25, 1998 (except
as provided otherwise in the Agreement), to the Person in whose name this Class
A-3 Certificate is registered at the close of business on the calendar day
immediately preceding such Certificate Payment Date or, if Definitive
Certificates have been issued, the last day of the immediately preceding
calendar month (the "Record Date"), such Class A-3 Certificateholder's
Percentage Interest in the amount distributed on the Class A-3 Certificates
pursuant to the terms of the Agreement, all to the extent and as more
specifically set forth in the Agreement. Except to the extent provided
otherwise in the Agreement, no principal payments shall be made in respect of
the Class A-2 Certificates until the Class A-1 Certificates have been paid in
full, and no principal payments shall be made in respect of the Class A-3
Certificates until the Class A-2 Certificates have been paid in full and no
principal payments shall be made in respect of the Class B Certificates until
the Class A-3 Certificates have been paid in full. Except as provided otherwise
in the Agreement, the principal of this Class A-3 Certificate shall be
distributable on the Class A-3 Targeted Maturity Date, which shall be March 26,
2001. The Stated Maturity Date of this Class A-3 Certificate is April 26, 2004.
Distributions on this Class A-3 Certificate will be made by the 1997-A
Securitization Trustee by check mailed to the Class A-3 Certificateholder of
record in the Certificate Register without the presentation or surrender of this
Class A-3 Certificate or the making of any notation hereon except that with
respect to Class A-3 Certificates registered in the name of Cede & Co., the
nominee for The Depository Trust Company, distributions will be made by wire
transfer of immediately available funds. Except as otherwise provided in the
Agreement and notwithstanding the foregoing, the final distribution on this
Class A-3 Certificate will be made after due notice by the 1997-A Securitization
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Class A-3 Certificate at the Corporate Trust Office of the
1997-A Securitization Trustee.
It is the intention of the Transferor and the Holders of Investor
Certificates that the Investor Certificates will be indebtedness for federal,
state and local income and franchise tax purposes and for purposes of any other
tax imposed on or measured by income. The Transferor, the 1997-A Securitization
Trustee and the Holder of this Certificate (or Certificate Owner) by acceptance
of this Certificate (or, in the case of a Certificate Owner, by virtue of such
Certificate Owner's acquisition of a beneficial
A-3-3
<PAGE>
interest herein) agree to treat the Investor Certificates (or beneficial
interest therein), for purposes of federal, state and local income or franchise
taxes and any other tax imposed on or measured by income, as indebtedness and to
report the transactions contemplated by the Agreement on all applicable tax
returns in a manner consistent with such treatment. Each Holder of this
Certificate agrees that it will cause any Certificate Owner acquiring an
interest in this Certificate through it to comply with the Agreement as to
treatment as indebtedness for federal, state and local income and franchise tax
purposes and for purposes of any other tax imposed on or measured by income.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of such Certificate Owner's acquisition of
a beneficial interest herein) waives any claim to any proceeds or assets of the
Titling Trustee and to all assets of the Titling Trust other than those from
time to time included in the 1997-A SUBI Assets and those proceeds or assets
derived from or earned by such 1997-A SUBI Assets (excluding the rights to
proceeds of the Residual Value Insurance Policy).
In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a) of the Agreement and herein, it is
finally determined that the Class A-3 Certificates do not evidence indebtedness
of the Transferor for all income and franchise tax purposes, but rather
represent an equity interest in the assets of the 1997-A Securitization Trust,
then the Holder (and each Certificate Owner hereof with respect hereto by virtue
of acquiring a beneficial interest herein), agrees (i) to treat such
Certificates, together with the Transferor Certificate, as representing an
interest in a partnership for all tax purposes, (ii) to treat all payments in
respect of such Certificates (to the extent not a return of capital) as a
"guaranteed payment" thereon made pursuant to Section 707(c) of the Code, and
(iii) to allocate all other items of income, gain, deduction, loss or credit
with respect to the assets and operations of the 1997-A Securitization Trust to
the Transferor.
The Certificates do not represent an obligation of, or an interest in, the
Transferor, the Servicer, the Titling Trust, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective Affiliates. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the 1997-A SUBI and 1997-A SUBI Certificate and certain monies on deposit in the
Reserve Fund and in certain other accounts established for the benefit of the
Certificateholders, in each case to the extent and as more specifically set
forth in the Agreement. A copy of the Agreement may be examined during normal
business hours at the Corporate Trust Office of the 1997-A Securitization
Trustee, at the offices of Merrill Lynch & Co. in Hong Kong (initially at Asia
Pacific Financial, 3 Garden Road), at the offices of Bankers Trust Company
Luxembourg S.A. in Luxembourg (initially at 14 Boulevard
A-3-4
<PAGE>
F.D. Roosevelt, L-450 Luxembourg) and at such other places, if any, designated
by the 1997-A Securitization Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Transferor and the 1997-A Securitization Trustee without the
consent of any Certificateholders. In certain limited circumstances, the
Agreement may only be amended with the consent of the Holders of Investor
Certificates evidencing not less than 51% of the aggregate Percentage Interest
of all Investor Certificates, voting together as a single class. 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 herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the 1997-A Securitization Trustee in its capacity as
Certificate Registrar, or at the office of the agent of the 1997-A
Securitization Trustee in its capacity as Certificate Registrar, who shall
initially be First Trust of New York, National Association, 100 Wall Street,
20th Floor, New York, New York 10005, in the Borough of Manhattan, the City of
New York, and with respect to the Definitive Certificates only, a transfer agent
appointed in Hong Kong and Luxembourg, or at the appropriate office of any
successor Certificate Registrar, accompanied by a written instrument of transfer
in form satisfactory to the 1997-A Securitization Trustee and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Class A-3 Certificates of
authorized denominations and of a like aggregate fractional undivided interest
will be issued to the designated transferee.
The Class A-3 Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class A-3 Certificate in a smaller minimum denomination
representing any remaining portion of the Initial Class A-3 Certificate
Balance). As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class, of authorized denominations of a like aggregate principal amount, as
requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the 1997-A Securitization
Trustee may require
A-3-5
<PAGE>
payment of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
Prior to due presentation of this Certificate for registration of transfer,
the 1997-A Securitization Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Class A-3 Certificate
is registered as the owner hereof for the purpose of receiving distributions and
for all other purposes, and neither the 1997-A Securitization Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and the
1997-A Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them pursuant
to the Agreement and the disposition of all property held as part of the 1997-A
Securitization Trust. The Transferor may at its option purchase the corpus of
the 1997-A Securitization Trust at a price specified in the Agreement, and such
purchase of the 1997-A SUBI and 1997-A SUBI Certificate and other property of
the 1997-A Securitization Trust will effect early retirement of the
Certificates; PROVIDED, HOWEVER, such right of purchase is exercisable only on
the Monthly Allocation Date on or after the Class A-3 Targeted Maturity Date, if
either before or after giving effect to any payments of principal required to be
made on such Monthly Allocation Date, the Certificate Balance shall be less than
or equal to $123,123,151.92 (ten percent (10%) of the Aggregate Net Investment
Value as of the Cutoff Date).
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of acquiring a beneficial interest herein)
covenants and agrees that prior to the date which is one year and one day after
the last date upon which (a) each Class of Investor Certificates has been paid
in full, and (b) all obligations due under any other Securitized Financing have
been paid in full, the Holder and/or Certificate Owner will not institute
against, or join any other Person in instituting against the Transferor, Toyota
Motor Credit Corporation, the 1997-A Securitization Trust, the Titling Trustee
or the Titling Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law. The foregoing shall not limit the Holder's and/or
Certificate Owner's right to file any claim in or otherwise take actions with
respect to any such proceeding instituted by any Person not under such a
constraint. This nonpetition covenant shall survive the termination of the
Agreement.
A-3-6
<PAGE>
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the 1997-A Securitization Trustee, by manual signature,
this Class A-3 Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
A-3-7
<PAGE>
IN WITNESS WHEREOF, the 1997-A Securitization Trustee on behalf of the
1997-A Securitization Trust and not in its individual capacity has caused this
Class A-3 Certificate to be duly executed.
Dated: September 24, 1997
TOYOTA AUTO LEASE TRUST 1997-A
By: U.S. BANK NATIONAL ASSOCIATION, AS
1997-A SECURITIZATION TRUSTEE
By:
--------------------------------
Authorized Officer
A-3-8
<PAGE>
Certificate of Authentication
This is one of the Class A-3 Certificates referred
to in the within-mentioned Agreement.
U.S. BANK NATIONAL ASSOCIATION, as
1997-A Securitization Trustee
By:
--------------------------------
A-3-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*
-----------------------------
Signature Guaranteed:
*
-----------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-3-10
<PAGE>
EXHIBIT B
THIS CLASS B CERTIFICATE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION IN
RELIANCE ON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH STATE OR FOREIGN
SECURITIES LAWS. THE CLASS B CERTIFICATES ARE ELIGIBLE FOR PURCHASE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT. NO RESALE OR OTHER TRANSFER OF THIS
CERTIFICATE SHALL BE MADE UNLESS SUCH RESALE OR TRANSFER (A) IS MADE IN
ACCORDANCE WITH SECTION 4.03 OF THE AGREEMENT REFERRED TO HEREIN AND (B) IS MADE
(i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(ii) IN A TRANSACTION (OTHER THAN A TRANSACTION IN CLAUSE (iv) BELOW) EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
AND FOREIGN SECURITIES LAWS, (iii) TO TOYOTA LEASING INC. (THE "TRANSFEROR") OR
(iv) TO A PERSON WHO THE TRANSFEROR OF THIS CLASS B CERTIFICATE REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT THAT IS AWARE THAT THE RESALE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A OR TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
UNDER RULE 501(a)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT. IN THE EVENT THAT
THE TRANSFER OF A CLASS B CERTIFICATE IS TO BE MADE AS DESCRIBED IN CLAUSE (ii)
OF THE PRECEDING SENTENCE, THE PROSPECTIVE INVESTOR IS REQUIRED TO DELIVER AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE 1997-A
SECURITIZATION TRUSTEE AND THE TRANSFEROR TO THE EFFECT THAT SUCH TRANSFER MAY
BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE OR
FOREIGN SECURITIES LAWS. THE PROSPECTIVE TRANSFEREE IN A TRANSFER OF A CLASS B
CERTIFICATE TO BE MADE AS DESCRIBED IN CLAUSE (iv) ABOVE MUST DELIVER TO THE
1997-A SECURITIZATION TRUSTEE A REPRESENTATION LETTER REQUIRED BY SECTION 4.03
OF THE AGREEMENT REFERRED TO HEREIN. PROSPECTIVE PURCHASERS OF THE CLASS B
CERTIFICATES ARE HEREBY NOTIFIED THAT THE SELLER OF ANY CLASS B CERTIFICATES MAY
BE RELYING ON THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SECTION 5 OF
THE ACT PROVIDED BY RULE 144A UNDER THE ACT.
THIS CLASS B CERTIFICATE OR A BENEFICIAL INTEREST HEREIN MAY NOT BE
TRANSFERRED UNLESS THE 1997-A SECURITIZATION TRUSTEE HAS RECEIVED (I) EITHER (A)
A CERTIFICATE FROM THE TRANSFEREE TO THE
B-1
<PAGE>
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN, TRUST OR ACCOUNT
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32)
OF ERISA SUBJECT TO ANY FEDERAL STATE OR LOCAL LAW WHICH IS, TO A MATERIAL
EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW")
(EACH, A "BENEFIT PLAN") AND IS NOT AN ENTITY INCLUDING AN INSURANCE COMPANY
SEPARATE ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY
SUCH ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION
2510.3-101 OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT PLAN ASSETS BY
REASON OF A BENEFIT PLAN'S INVESTMENT IN THE ENTITY (SUCH BENEFIT PLAN OR
ENTITY, A "BENEFIT PLAN INVESTOR") OR (B) AN OPINION OF COUNSEL SATISFACTORY TO
THE 1997-A SECURITIZATION TRUSTEE, THE TRANSFEROR AND THE SERVICER TO THE EFFECT
THAT THE PURCHASE OR HOLDING OF SUCH CERTIFICATE WILL NOT CONSTITUTE OR RESULT
IN THE ASSETS OF THE 1997-A SECURITIZATION TRUST BEING DEEMED TO BE "PLAN
ASSETS" SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR
PROHIBITED TRANSACTIONS PROVISIONS OF SECTION 4975 OF THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR SECTION 407 OF ERISA OR SECTION 4975 OF THE CODE OR SIMILAR LAW,
AND WILL NOT SUBJECT THE TRUSTEE, THE TRANSFEROR OR THE SERVICER TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OF SIMILAR LAW) IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT AND (II) A CERTIFICATE TO THE EFFECT THAT IF THE TRANSFEREE IS A
PARTNERSHIP, GRANTOR TRUST OR S CORPORATION FOR FEDERAL INCOME TAX PURPOSES (A
"FLOW-THROUGH ENTITY"), ANY CLASS B CERTIFICATES OWNED BY SUCH FLOW-THROUGH
ENTITY WILL REPRESENT LESS THAN 50% OF THE VALUE OF ALL THE ASSETS OWNED BY SUCH
FLOW-THROUGH ENTITY AND NO SPECIAL ALLOCATION OF INCOME, GAIN, LOSS, DEDUCTION
OR CREDIT FROM SUCH CLASS B CERTIFICATES WILL BE MADE AMONG THE BENEFICIAL
OWNERS OF SUCH FLOW-THROUGH ENTITY. NOTWITHSTANDING THE FOREGOING RESTRICTIONS,
THE 1997-A SECURITIZATION TRUSTEE SHALL PERMIT A TRANSFER OF CLASS B
CERTIFICATES TO A BENEFIT PLAN IF, IN THE SOLE DETERMINATION OF THE 1997-A
SECURITIZATION TRUSTEE, AFTER GIVING EFFECT TO THE PROPOSED TRANSFER TO SUCH
BENEFIT PLAN, BENEFIT PLANS WILL NOT OWN 25% OR MORE OF THE CLASS B CERTIFICATES
(BY CLASS CERTIFICATE BALANCE).
IN ADDITION, NO RESALE OR OTHER TRANSFER OF THIS CLASS B CERTIFICATE OR ANY
INTEREST THEREIN SHALL BE PERMITTED UNLESS
B-2
<PAGE>
IMMEDIATELY AFTER GIVING EFFECT TO SUCH RESALE OR OTHER TRANSFER, THERE WOULD BE
FEWER THAN 100 CLASS B CERTIFICATEHOLDERS.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO BELOW.
TOYOTA AUTO LEASE TRUST 1997-A
6.75% AUTO LEASE ASSET BACKED CERTIFICATE, CLASS B
evidencing a percentage interest in the distributions allocable to the
Investor Certificates, as defined below, evidence an undivided
interest in the 1997-A Securitization Trust, as defined below, the
property of which includes, among other things, a special unit of
beneficial interest (the "1997-A SUBI") in Toyota Lease Trust, a
Delaware business trust (the "Titling Trust"), which 1997-A SUBI
represents a beneficial interest in a pool of retail lease contracts
for new and used automobiles and light duty trucks (and the related
automobiles and light-duty trucks) entered into by various automobile
and light duty truck dealers pursuant to contractual arrangements with
Toyota Lease Trust, and which special unit of beneficial interest was
originally issued to Toyota Leasing Inc. and then to the 1997-A
Securitization Trust.
(This Certificate does not represent an obligation of, or an interest
in, Toyota Leasing, Inc., Toyota Motor Credit Corporation, the Titling
Trustee or the 1997-A Securitization Trustee or any of their
respective affiliates.)
Aggregate Denominations
of all Class B Certificates: CUSIP #892317 AD 0
$73,850,000
Number B-__ Denomination: $__________
THIS CERTIFIES THAT _______________ is the registered owner of a
________________________________________________ DOLLAR ($__________ )
nonassessable, fully-paid, fractional undivided interest in the Toyota Auto
Lease Trust 1997-A (the "1997-A Securitization Trust") formed by Toyota Leasing,
Inc., a California corporation, as Transferor (the "Transferor"). The 1997-A
Securitization Trust was created pursuant to a 1997-A Securitization Trust
Agreement dated as of September 1, 1997 (the "Agreement"), between the
Transferor and U.S. Bank National
B-3
<PAGE>
Association, a national banking association, as trustee (the "1997-A
Securitization Trustee"). A summary of certain of the pertinent provisions of
the Agreement is set forth below. To the extent not otherwise defined herein,
the capitalized terms used herein have the meanings assigned to them in the
Agreement.
This Certificate is one of the duly authorized Certificates issued under
the Agreement and designated as "Toyota Auto Lease Trust 1997-A 6.75% Auto Lease
Asset Backed Certificates, Class B" (the "Class B Certificates"). Also issued
under the Agreement are Certificates designated as "Toyota Auto Lease Trust
1997-A 6.20% Auto Lease Asset Backed Certificates, Class A-1" (the "Class A-1
Certificates"), Certificates designated as "Toyota Auto Lease Trust 1997-A 6.35%
Auto Lease Asset Backed Certificates, Class A-2" (the "Class A-2 Certificates"),
Certificates designated as "Toyota Auto Lease Trust 1997-A 6.45% Auto Lease
Asset Backed Certificates, Class A-3" (the "Class A-3 Certificates" and,
together with the Class A-1 Certificates and the Class A-2 Certificates, the
"Class A Certificates" and, together with the Class B Certificates, the
"Investor Certificates") and a Certificate designated as the "Toyota Auto Lease
Trust 1997-A Auto Lease Asset Backed Transferor Certificate" (the "Transferor
Certificate" and, together with the Investor Certificates, the "Certificates").
The Class B Certificates are subordinated to the Class A Certificates, and the
Transferor Certificate is subordinated to the Investor Certificates, to the
extent described in the Agreement. This Class B Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class B Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The property of the 1997-A Securitization Trust includes, among other
things, the 1997-A SUBI (exclusive of monies and payments due or payable under
any Residual Value Policy and the right to receive such amounts), which 1997-A
SUBI represents a beneficial interest in a pool of retail automobile and light
duty truck lease contracts ("Contracts") and the new and used automobiles and
light duty trucks leased thereby ("Leased Vehicles") (such pool of Contracts and
Leased Vehicles, the "1997-A SUBI Portfolio") entered into by various automobile
and light duty truck dealers pursuant to contractual arrangements with the
Titling Trust. Toyota Motor Credit Corporation acts as servicer (in that
capacity, the "Servicer") of the 1997-A SUBI Portfolio.
Under the Agreement, there will be distributed on the 25th day of March and
September or, to the extent provided in the Agreement, on the 25th day of each
month, or if such 25th day is not a Business Day, the next succeeding Business
Day (each, a "Certificate Payment Date"), commencing on March 25, 1998 (except
as provided otherwise in the Agreement), to the Person in whose name this Class
B Certificate is registered at the close of business on the last calendar day
of the immediately preceding
B-4
<PAGE>
calendar month (each a "Record Date"), such Class B Certificateholder's
Percentage Interest in the amount distributed on the Class B Certificates
pursuant to the terms of the Agreement, all to the extent and as more
specifically set forth in the Agreement. To the extent provided in the
Agreement, no principal payments shall be made in respect of the Class A-2
Certificates until the Class A-1 Certificates have been paid in full, no
principal payments shall be made in respect of the Class A-3 Certificates until
the Class A-2 Certificates have been paid in full and no principal payments
shall be made in respect of the Class B Certificates until the Class A-3
Certificates have been paid in full. Except as provided otherwise in the 1997-A
Securitization Trust Agreement, the principal of this Class B Certificate shall
be distributable on the Class B Targeted Maturity Date, which shall be September
25, 2001. The Stated Maturity Date of this Class B Certificate is April 26,
2004.
Distributions on this Class B Certificate will be made by the 1997-A
Securitization Trustee by check mailed to the Class B Certificateholder of
record in the Certificate Register without the presentation or surrender of this
Class B Certificate or the making of any notation hereon or, at the option of a
Holder who owns Class B Certificates having an aggregate initial denomination of
$250,000 or more, upon written instructions received by the 1997-A
Securitization Trustee not later than fifteen days prior to the related Record
Date, by wire transfer of immediately available funds to an account maintained
by such Holder at a depository institution in the United States having
appropriate facilities therefor. Except as otherwise provided in the Agreement
and notwithstanding the foregoing, the final distribution on this Class B
Certificate will be made after due notice by the 1997-A Securitization Trustee
of the pendency of such distribution and only upon presentation and surrender of
this Class B Certificate at the Corporate Trust Office of the 1997-A
Securitization Trustee.
It is the intention of the Transferor and the Holders of Investor
Certificates that the Investor Certificates will be indebtedness for federal,
state and local income and franchise tax purposes and for purposes of any other
tax imposed on or measured by income. The Transferor, the 1997-A Securitization
Trustee and the Holder of this Certificate by acceptance of this Certificate
agree to treat the Investor Certificates, for purposes of federal, state and
local income or franchise taxes and any other tax imposed on or measured by
income, as indebtedness and to report the transactions contemplated by the
Agreement on all applicable tax returns in a manner consistent with such
treatment.
By accepting this Certificate, the Holder hereof waives any claim to any
proceeds or assets of the Titling Trustee and to all assets of the Titling Trust
other than those from time to time included in the 1997-A SUBI Assets and those
proceeds or assets
B-5
<PAGE>
derived from or earned by such 1997-A SUBI Assets (excluding the rights of the
Residual Value Insurance Policy).
In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a) of the Agreement and herein, it is
finally determined that the Class B Certificates do not evidence indebtedness of
the Transferor for all income and franchise tax purposes, but rather represent
an equity interest in the assets of the 1997-A Securitization Trust, then the
Holder hereof agrees (i) to treat such Certificates, together with the
Transferor Certificate, as representing an interest in a partnership for all tax
purposes, (ii) to treat all payments in respect of such Certificates (to the
extent not a return of capital) as a "guaranteed payment" thereon made pursuant
to Section 707(c) of the Code, and (iii) to allocate all other items of income,
gain, deduction, loss or credit with respect to the assets and operations of the
1997-A Securitization Trust to the Transferor.
The Certificates do not represent an obligation of, or an interest in, the
Transferor, the Servicer, the Titling Trust, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective Affiliates. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the 1997-A SUBI and 1997-A SUBI Certificate and certain monies on deposit in the
Reserve Fund and in certain other accounts established for the benefit of the
Certificateholders, in each case to the extent and as more specifically set
forth in the Agreement. A copy of the Agreement may be examined during normal
business hours at the Corporate Trust Office of the 1997-A Securitization
Trustee, at the offices of Merrill Lynch & Co. in Hong Kong (initially at Asia
Pacific Financial, 3 Garden Road), at the offices of Bankers Trust Company
Luxembourg S.A. in Luxembourg (initially at 14 Boulevard F.D. Roosevelt, L-450
Luxembourg) and at such other places, if any, designated by the 1997-A
Securitization Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Transferor and the 1997-A Securitization Trustee without the
consent of any Certificateholders. In certain limited circumstances, the
Agreement may only be amended with the consent of the Holders of Investor
Certificates evidencing not less than 51% of the aggregate Percentage Interest
of all Investor Certificates, voting together as a single class. 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 herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate.
B-6
<PAGE>
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Registrar upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the 1997-A Securitization Trustee in its capacity as
Certificate Registrar, or at the office of the agent of the 1997-A
Securitization Trustee in its capacity as Certificate Registrar, who shall
initially be First Trust of New York, National Association, 100 Wall Street,
20th Floor, New York, New York 10005, or at the appropriate office of any
successor Certificate Registrar, accompanied by a written instrument of transfer
in form satisfactory to the 1997-A Securitization Trustee and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Class B Certificates of
authorized denominations and of a like aggregate fractional undivided interest
will be issued to the designated transferee.
The Class B Certificates are issuable only as registered Certificates
without coupons in denominations of $250,000 and integral multiples of $1,000 in
excess thereof, (except for one Class B Certificate in a smaller minimum
denomination representing any remaining portion of the Initial Class B
Certificate Balance). As provided in the Agreement, and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class, of authorized denominations of a like aggregate
principal amount, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
1997-A Securitization Trustee may require payment of a sum sufficient to cover
any tax or governmental charges payable in connection therewith.
Prior to due presentation of this Certificate for registration of transfer,
the 1997-A Securitization Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Class B Certificate is
registered as the owner hereof for the purpose of receiving distributions and
for all other purposes, and neither the 1997-A Securitization Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and the
1997-A Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them pursuant
to the Agreement and the disposition of all property held as part of the 1997-A
Securitization Trust. The Transferor may at its option purchase the corpus of
the 1997-A Securitization Trust at a price specified in the Agreement, and such
purchase of the 1997-A SUBI and 1997-A SUBI Certificate and other property of
the 1997-A Securitization Trust will effect early retirement of the
Certificates; PROVIDED,
B-7
<PAGE>
HOWEVER, such right of purchase is exercisable only on the Monthly Allocation
Date on or after the Class A-3 Targeted Maturity Date, if either before or after
giving effect to any payments of principal required to be made on such Monthly
Allocation Date, the Certificate Balance shall be less than or equal to
$123,123,151.92 (ten percent (10%) of the Aggregate Net Investment Value as of
the Cutoff Date).
By accepting this Certificate, the Holder hereof covenants and agrees that
prior to the date which is one year and one day after the last date upon which
(a) each Class of Investor Certificates has been paid in full, and (b) all
obligations due under any other Securitized Financing have been paid in full,
the Holder will not institute against, or join any other Person in instituting
against the Transferor, Toyota Motor Credit Corporation, the 1997-A
Securitization Trust, the Titling Trustee or the Titling Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceedings under any federal or state bankruptcy or similar law. The foregoing
shall not limit the Holder's right to file any claim in or otherwise take
actions with respect to any such proceeding instituted by any Person not under
such a constraint. This non-petition covenant shall survive the termination of
the Agreement.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the 1997-A Securitization Trustee, by manual signature,
this Class B Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
B-8
<PAGE>
IN WITNESS WHEREOF, the 1997-A Securitization Trustee on behalf of the
1997-A Securitization Trust and not in its individual capacity has caused this
Class B Certificate to be duly executed.
Dated: September 24, 1997
TOYOTA AUTO LEASE TRUST 1997-A
By: U.S. BANK NATIONAL ASSOCIATION,
AS 1997-A SECURITIZATION TRUSTEE
By:
--------------------------------
Authorized Officer
B-9
<PAGE>
Certificate of Authentication
This is one of the Class B Certificates referred
to in the within-mentioned Agreement.
U.S. BANK NATIONAL ASSOCIATION, as
1997-A Securitization Trustee
By:
--------------------------------
B-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*
-----------------------------
Signature Guaranteed:
*
-----------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
B-11
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE APPLICABLE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE RESOLD OR TRANSFERRED.
TOYOTA AUTO LEASE TRUST 1997-A
AUTO LEASE ASSET BACKED TRANSFEROR CERTIFICATE
evidencing the entire interest in the distributions allocable to the
Transferor Certificate evidencing an undivided interest in the 1997-A
Securitization Trust, as defined below, the property of which
includes, among other things, a special unit of beneficial interest
(the "1997-A SUBI") in Toyota Lease Trust, a Delaware business trust,
which 1997-A SUBI represents a beneficial interest in a pool of retail
lease contracts for new and used automobiles and light duty trucks
(and the related automobiles and light-duty trucks) entered into by
various automobile and light duty truck dealers pursuant to
contractual arrangements with Toyota Lease Trust, and which 1997-A
SUBI was originally issued to Toyota Leasing, Inc., and then to the
1997-A Securitization Trust.
(This Certificate does not represent an obligation of, or an interest
in, Toyota Leasing, Inc., Toyota Motor Credit Corporation, the Titling
Trustee, the 1997-A Securitization Trustee, or any of their respective
affiliates.)
THIS CERTIFIES THAT TOYOTA LEASING, INC. (the "Transferor") is the
registered owner of the entire interest not allocated to the Investor
Certificates in the Toyota Auto Lease Trust 1997-A (the "1997-A Securitization
Trust") formed by the Transferor. The 1997-A Securitization Trust was created
pursuant to a 1997-A Securitization Trust Agreement dated as of September 1,
1997 (the "Agreement"), between the Transferor and U.S. Bank National
Association, a national banking association, as trustee (the "1997-A
Securitization Trustee"). A summary of certain of the pertinent provisions of
the Agreement is set forth below. To the extent not otherwise defined herein
the capitalized terms used herein have the meanings assigned to them in the
Agreement.
This Certificate is the duly authorized Transferor Certificate issued under
the Agreement and designated as the "Toyota Auto Lease
C-1
<PAGE>
Trust 1997-A Auto Lease Asset Backed Transferor Certificate" (the "Transferor
Certificate"). Also issued under the Agreement are Certificates designated as
"Toyota Auto Lease Trust 1997-A 6.20% Auto Lease Asset Backed Certificates,
Class A-1" (the "Class A-1 Certificates"), Certificates designated as "Toyota
Auto Lease Trust 1997-A 6.35% Auto Contract Asset Backed Certificates, Class
A-2" (the "Class A-2 Certificates"), Certificates designated as "Toyota Auto
Lease Trust 1997-A 6.45% Auto Lease Asset Backed Certificates, Class A-3" (the
"Class A-3 Certificates" and, together with the Class A-1 Certificates and the
Class A-2 Certificates, the "Class A Certificates") and Certificates designated
as "Toyota Auto Lease Trust 1997-A 6.75% Auto Lease Asset Backed Certificates,
Class B" (the "Class B Certificates" and, together with the Class A
Certificates, the "Investor Certificates" and, together with the Transferor
Certificate, the "Certificates"). This Transferor Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Transferor Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The property of the 1997-A Securitization Trust includes, among other
things, the 1997-A SUBI, which 1997-A SUBI represents a beneficial interest in a
pool of retail automobile and light duty truck lease contracts ("Contracts") and
the new and used automobiles and light duty trucks leased thereby ("Leased
Vehicles") (such pool of Contracts and Leased Vehicles, the "1997-A SUBI
Portfolio") entered into by various automobile and light duty truck dealers
pursuant to contractual arrangements with the Titling Trust. Toyota Motor
Credit Corporation acts as servicer (in that capacity, the "Servicer") of the
1997-A SUBI Portfolio. During the Revolving Period, Principal Collections
allocable to the 1997-A SUBI generally will be applied towards the allocation to
the 1997-A SUBI Portfolio of additional qualifying Contracts and Leased Vehicles
from among all other unallocated Contracts and Leased Vehicles owned by the
Titling Trust.
Payments in respect of the 1997-A SUBI will be allocated between the
Investor Certificates and this Transferor Certificate and paid to the registered
Holder of this Transferor Certificate as provided in the Agreement.
It is the intention of the Transferor, as the Holder of this Certificate,
and the Holders of Investor Certificates that the Investor Certificates will be
indebtedness for federal, state and local income and franchise tax purposes and
for purposes of any other tax imposed on or measured by income. The 1997-A
Securitization Trustee and Transferor, as the Holder of this Certificate, by
acceptance of this Certificate, agree to treat the Investor Certificates, for
purposes of federal, state and local income or franchise taxes and any other tax
imposed on or measured by income, as indebtedness and to report the transactions
C-2
<PAGE>
contemplated by the Agreement on all applicable tax returns in a manner
consistent with such treatment.
By accepting this Certificate, the Holder hereof waives any claim to any
proceeds or assets of the Titling Trustee and to all assets of the Titling Trust
other than those from time to time included in the 1997-A SUBI Assets and those
proceeds or assets derived from or earned by such 1997-A SUBI Assets.
In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a) of the Agreement and herein, it is
finally determined that the Investor Certificates do not evidence indebtedness
of the Transferor for all income and franchise tax purposes, but rather
represent an equity interest in the assets of the 1997-A Securitization Trust,
then the Transferor, as Holder hereof, agrees (i) to treat the Investor
Certificates, together with this Certificate, as representing an interest in a
partnership for all tax purposes, (ii) to treat all payments in respect of such
Certificates (to the extent not a return of capital) as a "guaranteed payment"
thereon made pursuant to Section 707(c) of the Code, and (iii) to allocate all
other items of income, gain, deduction, loss or credit with respect to the
assets and operations of the 1997-A Securitization Trust to the Transferor.
The Certificates do not represent an obligation of, or an interest in, the
Transferor, the Servicer, the Titling Trust, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective affiliates. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the 1997-A SUBI and 1997-A SUBI Certificate and certain monies on deposit in the
Reserve Fund and in certain other accounts established for the benefit of the
Certificateholders, in each case to the extent and as more specifically set
forth in the Agreement. A copy of the Agreement may be examined during normal
business hours at the Corporate Trust Office of the 1997-A Securitization
Trustee, and at such other places, if any, designated by the 1997-A
Securitization Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Transferor and the 1997-A Securitization Trustee without the
consent of any Certificateholders. In certain limited circumstances, the
Agreement may only be amended with the consent of the Holders of Certificates
evidencing not less than 51% of the aggregate Percentage Interest of all
Investor Certificates, voting together as a single class.
As provided in the Agreement, this Certificate shall be owned by the
Transferor and may not be transferred.
C-3
<PAGE>
As provided in the Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of the same Class, of
authorized denominations of a like aggregate principal amount, as requested by
the Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the 1997-A Securitization Trustee may
require payment of a sum sufficient to cover any tax or governmental charges
payable in connection therewith.
The obligations and responsibilities created by the Agreement and the
1997-A Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them pursuant
to the Agreement and the disposition of all property held as part of the 1997-A
Securitization Trust. The Transferor may at its option purchase the corpus of
the 1997-A Securitization Trust at a price specified in the Agreement, and such
purchase of the 1997-A SUBI and 1997-A SUBI Certificate and other property of
the 1997-A Securitization Trust will effect early retirement of the
Certificates; PROVIDED, HOWEVER, such right of purchase is exercisable only on
the Monthly Allocation Date on or after the Class A-3 Targeted Maturity Date, if
either before or after giving effect to any payment required to be made on such
Monthly Allocation Date, the Certificate Balance shall be less than or equal to
$123,123,151.92 (ten percent (10%) of the Aggregate Net Investment Value as of
the Cutoff Date).
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the 1997-A Securitization Trustee, by manual signature,
this Transferor Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
C-4
<PAGE>
IN WITNESS WHEREOF, the 1997-A Securitization Trustee on behalf of the
1997-A Securitization Trust and not in its individual capacity has caused this
Transferor Certificate to be duly executed.
Dated: September 24, 1997
TOYOTA AUTO LEASE TRUST 1997-A
By: U.S. BANK NATIONAL ASSOCIATION,
AS 1997-A SECURITIZATION TRUSTEE
By:
--------------------------------
Authorized Officer
ATTEST
- -------------------------
C-5
<PAGE>
Certificate of Authentication
This is the Transferor Certificate referred
to in the within-mentioned Agreement.
U.S. BANK NATIONAL ASSOCIATION, as
1997-A Securitization Trustee
By:
--------------------------------
C-6
<PAGE>
EXHIBIT D
FORM OF RULE 144A TRANSFEREE CERTIFICATE
Toyota Motor Credit Corporation
Toyota Leasing, Inc.,
c/o Toyota Motor Credit Corporation
19001 S. Western Avenue
Torrance, California 90509
U.S. Bank National Association
One Illinois Center
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Re: Toyota Auto Lease Trust 1997-A; ____% Auto
Lease Asset Backed Certificates, Class B
----------------------------------------
Ladies and Gentlemen:
__________________ (the "Purchaser") is today purchasing in a private
resale from ______________ (the "Seller") $______ aggregate principal amount of
Auto Lease Asset-Backed Certificates, Class B (the "Certificates"), issued
pursuant to a securitization trust agreement, dated as of September 1, 1997 (the
"Agreement") between Toyota Leasing, Inc. ("TLI") and U.S. Bank National
Association (the "U.S. Bank"), as trustee (the "Trustee"). The Certificates are
securities issued by and evidencing interests in the assets of Toyota Auto Lease
Trust 1997-A (the "Trust").
In connection with the purchase of the Certificates, the Purchaser hereby
represents and warrants to each of you as follows:
1. The Purchaser understands that the Certificates have not been
registered under the Securities Act of 1933, as amended (the "Securities Act")
or the securities law of any state or foreign jurisdiction.
2. The Purchaser is acquiring the Certificates for its own account only
for investment and not for any other person, and not with a view to, or for
resale in connection with, a distribution that would constitute a violation of
the Securities Act or any state or foreign securities laws (subject to the
understanding that disposition of the Purchaser's property will at all times be
and remain within its control). The Purchaser is not an affiliate of TLI, the
Trustee or any of their respective affiliates.
3. The Purchaser agrees that the Certificates must be held indefinitely
by it unless (i) the Certificates are subsequently registered under the
Securities Act or (ii) an exemption from the registration requirements of the
Securities Act is available.
D-1
<PAGE>
4. The Purchaser agrees that if at some time it wishes to dispose of or
exchange any of the Certificates, it will not transfer or exchange any of the
Certificates unless such transfer or exchange is in accordance with the
provisions of Section 4.03 of the Agreement.
5. The Purchaser is a qualified institutional buyer as defined in Rule
144A of the Securities Act and has completed one of the forms of certification
to that effect attached as Annexes hereto, it is aware that the sale to it is
being made in reliance on Rule 144A, it is acquiring the Certificates for its
own account or for the account of a qualified institutional buyer and it
understands that such Certificates may be resold, pledged or transferred by the
Purchaser only (i) to a person who the Purchaser reasonably believes is a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A or (ii)
pursuant to another exemption from registration under the Securities Act and
applicable state and foreign securities laws.
6. Neither the Purchaser nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of any Certificate, any
interest in any Certificate or any other similar security of the Transferor to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of any Certificate, any interest in any Certificate or any other similar
security of TLI or the Trust with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, which would constitute a distribution of the Certificates
under the Securities Act or which would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law, require registration or qualification pursuant thereto, or
require registration of the Trust or TLI as an "investment company" under the
Investment Company Act of 1940, as amended, nor will it act, nor has it
authorized or will it authorize any person to act in such manner with respect to
the Certificates.
7. The Purchaser understands that there is no market, nor is there any
assurance that a market will develop, for the Certificates and that TLI and the
Trust have no obligation to make or facilitate any such market (or to otherwise
repurchase the Certificates from the Purchaser) under any circumstances.
8. The Purchaser has consulted with its own legal counsel, independent
accountants and financial advisors to the extent it deems necessary regarding
the tax consequences to it of ownership of the Certificates, is aware that its
taxable income with respect to the Certificates in any accounting period may not
correspond to the cash flow (if any) from the Certificates for such period, and
D-2
<PAGE>
is not purchasing the Certificates in reliance on any representations of TLI or
its counsel with respect to tax matters.
9. The Purchaser has reviewed the Private Placement Memorandum with
respect to the Certificates dated September 23, 1997, including the Prospectus
attached thereto as Exhibit A (the "Private Placement Memorandum"), and the
agreements and other materials referred to therein, and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transaction contemplated by the Private Placement Memorandum and to obtain
additional information necessary to verify the accuracy and completeness of any
information furnished to the Purchaser or to which the Purchaser had access.
10. The Purchaser understands that the Certificates will bear legends
substantially as set forth in the form of Certificate included as Exhibit B to
the Agreement.
11. The Purchaser hereby further agrees to be bound by all the terms and
conditions of the Certificates as provided in the Agreement.
12. The Purchaser selects one of the following:
___________ (a) the Purchaser is not an employee benefit plan, trust
or account subject to Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or subject to Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), or a governmental plan defined in Section
3(32) of ERISA subject to any federal state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(each, a "Benefit Plan") and is not an entity, including an insurance company
separate account or an insurance company general account if the assets in any
such accounts constitute "Plan Assets" for purposes of regulation Section
2510.3-101 of ERISA, whose underlying assets include Benefit Plan assets by
reason of a Benefit Plan's investment in the entity; or
_____________ (b) the Purchaser is delivering herewith an Opinion of
Counsel addressed to the Trustee, the Seller and the Servicer to the effect that
the purchase or holding of such Certificate will not constitute or result in the
assets of the trust being deemed to be "Plan Assets" subject to the fiduciary
responsibility provisions of ERISA or prohibited transactions provisions of
Section 4975 of the Code or Similar Law, will not constitute or result in a
prohibited transaction within the meaning of Section 406 or Section 407 of ERISA
or Section 4975 of the Code or Similar Law, and will not subject the Trustee,
the Seller or the Servicer to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or Similar Law) in addition
to those undertaken in the Agreement.
D-3
<PAGE>
The foregoing representation and opinion need not be given for subsequent
transfers if the Trustee determines in its sole discretion that, after giving
effect to the proposed transfer, Benefit Plans will not own 25% or more of the
Class B Certificates (by Class Certificate Balance).
13. If the Purchaser is a partnership, grantor trust or S corporation for
federal income tax purposes (a "Flow-Through Entity"), any Certificates owned by
such Flow-Through Entity will represent less than 50% of the value of all the
assets owned by such Flow-Through Entity and no special allocation of income,
gain, loss, deduction or credit from such Certificates will be made among the
beneficial owners of such Flow-Through Entity.
14. If the Purchaser sells any of the Certificates, the Purchaser will
obtain from any subsequent purchaser of the Certificates the same
representations contained in this Representation Letter.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Agreement or the Private Placement Memorandum,
as the case may be.
D-4
<PAGE>
The representations and warranties contained herein shall be binding upon
the heirs, executors, administrators and other successors of the undersigned.
If there is more than one signatory hereto, the obligations, representations,
warranties and agreements of the undersigned are made jointly and severally.
Executed at _________________, this ____ day of ____________ 199_
------------------------------
Purchaser's Name (Print)
By
----------------------------
Signature
Its
---------------------------
------------------------------
Address of Purchaser
------------------------------
Purchaser's Taxpayer
Identification Number
D-5
<PAGE>
APPENDIX 1 TO EXHIBIT D
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
(Buyers other than Registered Investment Companies)
Toyota Motor Credit Corporation
Toyota Leasing, Inc.,
c/o Toyota Motor Credit Corporation
19001 S. Western Avenue
Torrance, California 90509
U.S. Bank National Association
One Illinois Center
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Re: Toyota Auto Lease Trust 1997-A; ____% Auto
Lease Asset Backed Certificates, Class B
------------------------------------------
Name of Buyer: _______________ ("Buyer")
Ladies and Gentlemen:
I hereby certify that, as indicated below, I am the President, Chief
Executive/Financial Officer, Senior Vice President or other executive officer of
the Buyer.
In connection with purchases by Buyer from time to time, I hereby certify
to you and, if you act as broker for one or more customers, to such customers,
that Buyer is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because (i) the
Buyer owned and/or invested on a discretionary basis $_______(1) in securities
(except for the excluded securities referred to below) as of the end of Buyer's
most recent fiscal year (such amount being calculated in accordance with Rule
144A) and (ii) Buyer satisfies the criteria in the category marked below.
___ CORPORATION, ETC. Buyer is a corporation (other than a bank,
savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
- --------------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
D-6
<PAGE>
___ BANK. Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements.
___ SAVINGS AND LOAN. Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and
examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements.
___ BROKER-DEALER. Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934, as amended (the "1934
Act").
___ INSURANCE COMPANY. Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or
the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or
a similar official or agency of a State, territory or the
District of Columbia
___ STATE OR LOCAL PLAN. Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for
the benefit of its employees.
___ ERISA PLAN. Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of
1974.
___ INVESTMENT ADVISOR. Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
The term "SECURITIES" as used herein does not include (i) securities of
issuers that are affiliated with Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Purchaser, if Buyer is a dealer,
(iii) bank deposit notes
D-7
<PAGE>
and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate of securities owned and/or
invested on a discretionary basis by Buyer, Buyer used the cost of such
securities to Buyer and did not include any of the securities referred to in the
preceding paragraph.
Further, in determining such aggregate amount, Buyer may have included
securities owned by subsidiaries of Buyer, but only if such subsidiaries are
consolidated with Buyer in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under Buyer's direction. However, such securities were
not included if Buyer is a majority owned, consolidated subsidiary of another
enterprise and Buyer is not itself a reporting company under the 1934 Act.
Buyer acknowledges that it is familiar with Rule 144A and understands that
you and your customers (if you act as a broker for one or more customers) are
and will continue to rely on the statements made herein because one or more
sales by you for your own account or your customer's account to Buyer may be in
reliance on Rule 144A.
Will Buyer be purchasing Rule 144A securities only for Buyer's own
account?
--- ---
Yes No
If the answer to this question is "no", Buyer agrees that, in connection
with any purchase of securities sold to Buyer for the account of a third party
(including any separate account) in reliance on Rule 144A, Buyer will only
repurchase for the account of a third party that at the time is a "qualified
institutional buyer" within the meaning of Rule 144A. In addition, Buyer agrees
that Buyer will not purchase securities for a third party unless Buyer has
obtained a current representation letter from such third party or taken other
appropriate steps contemplated by Rule 144A to conclude that such third party
independently meets the definition of "qualified institutional buyer" set forth
in Rule 144A.
Buyer agrees to notify you of any changes in the information and
conclusions herein. Until such notice is given, Buyer's purchase of securities
from you, or through you from your customers, will constitute a reaffirmation of
the foregoing
D-8
<PAGE>
certifications and acknowledgements as of the date of such purchase.
Very truly yours,
Date:
--------------
------------------------------
Name of Buyer
Print
By:
---------------------------
Name:
Title:
D-9
<PAGE>
ANNEX 2 TO EXHIBIT D
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
(Buyers that are Registered Investment Companies)
Toyota Motor Credit Corporation U.S. Bank National Association
Toyota Leasing, Inc. One Illinois Center
c/o Toyota Motor Credit Corporation 111 E. Wacker Drive, Suite 3000
19001 South Western Avenue Chicago, Illinois 60601
Torrance, California 90509
Re: Toyota Auto Lease Trust 1997-A;
Auto Lease Asset-Backed Certificates, Class B
Name of Buyer: _____________________ ("Buyer")
Name of Investment Adviser: __________________ ("Adviser")
I hereby certify that, as indicated below, I am the President, Chief
Executive/Financial Officer or Senior Vice President of Buyer or, if Buyer is a
"qualified institutional buyer" as defined in Rule 144A ("Rule 144A") under the
Securities Act of 1933, as amended, because Buyer is part of a Family of
Investment Companies (as defined below), of Adviser.
In connection with purchases by Buyer, from time to time, I hereby certify
to you and, if you act as broker for one or more customers, to such customers,
that Buyer is a "qualified institutional buyer" as defined in Rule 144A because
(i) Buyer is an investment company registered under the Investment Company Act
of 1940, as amended and (ii) as marked below, Buyer alone, or Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of Buyer's most recent
fiscal year. (2)
___ Buyer owned $___________ in securities (other than the excluded
securities referred to below) as of the end of Buyer's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
___ Buyer is part of a Family of Investment Companies which owned in
the aggregate $__________ in
- -------------------
(2) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
D-10
<PAGE>
securities (other than the excluded securities referred to below)
as of the end of Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
For purposes of determining the amount of securities owned by Buyer or
Buyer's Family of Investment Companies, I used the cost of such securities and
did not include any of the securities referred to below in the second succeeding
paragraph.
The term "FAMILY OF INVESTMENT COMPANIES" as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
The term "SECURITIES" as used herein does not include (i) securities of
issuers that are affiliated with Buyer or are part of Buyer's Family of
Investment Companies, (ii) bank deposit notes and certificates of deposit, (iii)
loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
On behalf of Buyer, I acknowledge that Buyer is familiar with Rule 144A and
understands that the parties listed in the Rule 144A Representation Letter to
which this certification relates are relying and will continue to rely on the
statements made herein because one or more sales to Buyer by you for your
account or your customer's account will be made in reliance on Rule 144A. In
addition, on behalf of Buyer, I agree that, in connection with any purchase of
securities sold by or through you in reliance on Rule 144A, Buyer will only
purchase for Buyer's own account.
D-11
<PAGE>
Finally, on behalf of Buyer or Adviser (as appropriate), I agree to notify
you of any changes in the information and conclusions herein. Until such notice
is given, Buyer's purchase from time to time of securities from you, or, through
you from your customers, will constitute a reaffirmation of foregoing
certificates and acknowledgement by me as of the date of such purchase.
Date:
---------------
Very truly yours,
------------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
On behalf of
------------------------------
Name of Buyer:
or
------------------------------
Name of Adviser:
D-12
<PAGE>
EXHIBIT E
FORM OF NON-RULE 144A REPRESENTATION LETTER
Toyota Motor Credit Corporation
Toyota Leasing, Inc.
c/o Toyota Motor Credit Corporation
19001 South Western Avenue
Torrance, California 90509
U.S. Bank National Association
One Illinois Center
111 E. Wacker Drive, Suite 3000
Chicago, Illinois 60601
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower
New York New York 10281-1201
Re: Toyota Auto Lease Trust 1997-A
6.75% Automobile Lease Asset Backed Certificates, Class B
Ladies and Gentlemen:
The undersigned purchaser (the "Purchaser") understands that the purchase
of the above-referenced certificates (the "Certificates") may be made by
institutions which are "Accredited Investors" under Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended (the "Securities Act"). The
undersigned represents on behalf of the Purchaser that the Purchaser is an
"Accredited Investor" within the meaning of such definition. The Purchaser is
urged to review carefully the responses, representations and warranties it is
making herein.
REPRESENTATIONS AND WARRANTIES
The Purchaser makes the following representations and warranties in order
to permit U.S. Bank National Association, as trustee (the "Trustee") of the
Toyota Auto Lease Trust 1997-A (the "Trust"), Toyota Leasing, Inc. (the
"Transferor") and Merrill Lynch, Pierce, Fenner & Smith Incorporated to
determine its suitability as a purchaser of Certificates and to determine that
the private transfer exemption from registration relied upon by the Transferor
under the Securities Act is available to it.
1. The Purchaser understands that the Certificates have not been, and
throughout their term will not be, registered or qualified under the Securities
Act or the securities laws of any
E-1
<PAGE>
state and may be resold (which resale is not currently contemplated) only if
registered pursuant to the provisions of the Securities Act or if an exemption
from registration under the Securities Act and other applicable state securities
laws is available, that neither the Transferor nor the Trustee is required to
register the Certificates under the Securities Act or any applicable state
securities laws and that any transfer must comply with Section 4.03 of the
Securitization Trust Agreement dated as of September 1, 1997 (the "Agreement"),
between the Transferor and the Trustee.
2. The Purchaser will comply with all applicable federal and state
securities laws in connection with any subsequent resale of the Certificates.
3. The Purchaser is an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act and a sophisticated
institutional investor and has knowledge and experience in financial and
business matters (and, in particular, in such matters related to securities
similar to the Certificates) and is capable of evaluating the merits and risk of
its investment in the Certificates and is able to bear the economic risks of
such investment. The Purchaser has been given such information concerning the
Certificates, Toyota Motor Credit Corporation and the Transferor as it has
requested.
4. The Purchaser is acquiring the Certificates as principal for its own
account for the purpose of investment and not with a view to or for sale in
connection with any distribution thereof, subject nevertheless to any
requirement of law that the disposition of the Purchaser's property shall at all
times be and remain within its control.
5. Neither the Purchaser nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of any Certificate, any
interest in any Certificate or any other similar security of the Transferor to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of any Certificate, any interest in any Certificate or any other similar
security of the Transferor with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, which would constitute a distribution of the Certificates
under the Securities Act or which would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law, require registration or qualification pursuant thereto, or
require registration of the Trust under the Investment Company Act of 1940, as
amended, nor will it act, nor has it authorized or will it authorize any person
to act in such manner with respect to the Certificates.
E-2
<PAGE>
6. The Purchaser has reviewed the Private Placement Memorandum with
respect to the Certificates dated September 11, 1997, including the Prospectus
attached thereto as Exhibit A (the "Private Placement Memorandum") and has had
the opportunity to ask questions and receive answers concerning the terms and
conditions of the transactions contemplated by the Private Placement Memorandum
and to obtain additional information necessary to verify the accuracy and
completeness of any information furnished to the Purchaser or to which the
Purchaser had access.
7. Either (a) Purchaser is not an employee benefit plan, trust or account
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan defined in section 3(32)
of ERISA subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(each, a "Benefit Plan") and is not an entity, including an insurance company
separate account or an insurance company general account if the assets in any
such accounts constitute "plan assets" for purposes of regulation section
2510.3-101 of ERISA, whose underlying assets include Benefit Plan assets by
reason of a Benefit Plan s investment in the entity; or (b) Purchaser is
delivering herewith an opinion of counsel addressed to the Trustee, the
Transferor and the Servicer to the effect that the purchase or holding of such
Certificate will not constitute or result in the assets of the trust being
deemed to be "plan assets" subject to the fiduciary responsibility provisions of
ERISA or prohibited transactions provisions of Section 4975 of the Code or
Similar Law, will not constitute or result in a prohibited transaction within
the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code
or Similar Law, and will not subject the Trustee, the Transferor or the Servicer
to any obligation or liability (including obligations or liabilities under
ERISA, Section 4975 of the Code or Similar Law) in addition to those undertaken
in the Agreement. The foregoing representation and opinion need not be given if
the Trustee determines in its sole discretion that, after giving effect to the
proposed transfer, Benefit Plans will not own 25% or more of the Class B
Certificates (by Class Certificate Balance).
8. The Purchaser understands that the Certificates will bear a legend
substantially as set forth in the form of Certificate included as an Exhibit to
the Agreement.
9. The Purchaser understands that there is no market, nor is there any
assurance that a market will develop, for the Certificates and that the
Transferor does not have any obligation to make or facilitate any such market
(or to otherwise repurchase the Certificates from the Purchaser) under any
circumstances.
E-3
<PAGE>
10. The Purchaser has consulted with its own legal counsel, independent
accountants and financial advisors to the extent it deems necessary regarding
the tax consequences to it of ownership of the Certificates, is aware that its
taxable income with respect to the Certificates in any accounting period may not
correspond to the cash flow (if any) from the Certificates for such period, and
is not purchasing the Certificates in reliance on any representations of the
Transferor or its counsel with respect to tax matters.
11. The Purchaser represents, on behalf of itself that if the Purchaser is
a partnership, grantor trust or S corporation for federal income tax purposes (a
"Flow-Through Entity"), any Class B Certificates owned by or on behalf of such
Flow-Through Entity will represent less than 50% of the value of all the assets
owned by such Flow-Through Entity and no special allocation of income, gain,
loss, deduction or credit from such Class B Certificates will be made among the
beneficial owners of such Flow-Through Entity.
12. The Purchaser agrees that it will obtain from any subsequent purchaser
of the Certificates substantially the same representations, warranties and
agreements contained in the foregoing paragraphs I through 11 and in this
paragraph 12.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Agreement or the Private Placement Memorandum,
as the case may be.
The representations and warranties continued herein shall be binding upon
the successors of the undersigned.
Executed at _________, this ____ day of ________, 199_.
----------------------------------------
Purchaser's Name (Print)
By:
-------------------------------------
Name:
Title:
----------------------------------------
Address of Purchaser
----------------------------------------
Purchaser's Taxpayer
Identification Number
E-4
<PAGE>
EXHIBIT A-1
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.
TOYOTA AUTO LEASE TRUST 1997-A
6.20% AUTO LEASE ASSET BACKED CERTIFICATE, CLASS A-1
evidencing a percentage interest in the distributions allocable to the Investor
Certificates, as defined below, evidencing an undivided interest in the 1997-A
Securitization Trust, as defined below, the property of which includes, among
other things, a special unit of beneficial interest (the "1997-A SUBI") in
Toyota Lease Trust, a Delaware business trust (the "Titling Trust"), which
1997-A SUBI represents a beneficial interest in a pool of retail lease contracts
for new and used automobiles and light duty trucks (and the related automobiles
and light-duty trucks) entered into by various automobile and light duty truck
dealers pursuant to contractual arrangements with Toyota Lease Trust, and which
1997-A SUBI was originally issued to Toyota Leasing, Inc. and then to the 1997-A
Securitization Trust.
(This Certificate does not represent an obligation of, or an interest in, Toyota
Leasing, Inc., Toyota Motor Credit Corporation, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective affiliates.)
Aggregate Denominations of
all Class A-1 Certificates: CUSIP #892317 AA 6
$410,000,000
Number A-1- Denomination: $____________
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
_______________________________ ($____________) nonassessable, fully-paid,
fractional undivided interest in the Toyota Auto Lease Trust 1997-A (the "1997-A
Securitization Trust") formed by Toyota
A-1-1
<PAGE>
Leasing, Inc., a California corporation, as Transferor (the "Transferor"). The
1997-A Securitization Trust was created pursuant to a 1997-A Securitization
Trust Agreement dated as of September 1, 1997 (the "Agreement"), between the
Transferor and U.S. Bank National Association, a national banking association,
as trustee (the "1997-A Securitization Trustee"). A summary of certain of the
pertinent provisions of the Agreement is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates issued under
the Agreement and designated as "Toyota Auto Lease Trust 1997-A 6.20% Auto Lease
Asset Backed Certificates, Class A-1" (the "Class A-1 Certificates"). Also
issued under the Agreement are Certificates designated as "Toyota Auto Lease
Trust 1997-A 6.35% Auto Lease Asset Backed Certificates, Class A-2" (the "Class
A-2 Certificates"), Certificates designated as "Toyota Auto Lease Trust 1997-A
6.45% Auto Lease Asset Backed Certificates, Class A-3" (the "Class A-3
Certificates" and, together with the Class A-1 Certificates and the Class A-2
Certificates, the "Class A Certificates"), Certificates designated as "Toyota
Auto Lease Trust 1997-A 6.75% Auto Lease Asset Backed Certificates, Class B"
(the "Class B Certificates" and, together with the Class A Certificates, the
"Investor Certificates") and a Certificate designated as the "Toyota Auto Lease
Trust 1997-A Asset Backed Transferor Certificate" (the "Transferor Certificate"
and, together with the Investor Certificates, the "Certificates"). The Class B
Certificates are subordinated to the Class A Certificates and the Transferor
Certificate is subordinated to the Investor Certificates to the extent described
in the Agreement. This Class A-1 Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class A-1 Certificate by virtue of the acceptance hereof assents
and by which such Holder is bound.
The property of the 1997-A Securitization Trust includes, among other
things, the 1997-A SUBI (exclusive of monies and payments due or payable under
any Residual Value Insurance Policy and the right to receive such amounts),
which 1997-A SUBI represents a beneficial interest in a pool of retail
automobile and light duty truck lease contracts ("Contracts") and the new and
used automobiles and light duty trucks leased thereby ("Leased Vehicles") (such
pool of Contracts and Leased Vehicles, the "1997-A SUBI Portfolio") entered into
by various automobile and light duty truck dealers pursuant to contractual
arrangements with the Titling Trust. Toyota Motor Credit Corporation acts as
servicer (in that capacity, the "Servicer") of the 1997-A SUBI Portfolio.
During the Revolving Period, Principal Collections allocable to the 1997-A SUBI
generally will be applied towards the allocation to the 1997-A SUBI Portfolio of
Subsequent Contracts and Subsequent Leased
A-1-2
<PAGE>
Vehicles from among all other unallocated Contracts and Leased Vehicles owned by
the Titling Trust.
Under the Agreement, there will be distributed on the 25th day of March and
September or, to the extent provided in the Agreement, on the 25th day of each
month, or if such 25th day is not a Business Day, the next succeeding Business
Day (each, a "Certificate Payment Date"), commencing on March 25, 1998 (except
as provided otherwise in the Agreement), to the Person in whose name this Class
A-1 Certificate is registered at the close of business on the calendar day
immediately preceding such Certificate Payment Date or, if Definitive
Certificates have been issued, the last day of the immediately preceding
calendar month (the "Record Date"), such Class A-1 Certificateholder's
Percentage Interest in the amount distributed on the Class A-1 Certificates
pursuant to the terms of the Agreement, all to the extent and as more
specifically set forth in the Agreement. Except to the extent provided
otherwise in the Agreement, no principal payments shall be made in respect of
the Class A-2 Certificates until the Class A-1 Certificates have been paid in
full, no principal payments shall be made in respect of the Class A-3
Certificates until the Class A-2 Certificates have been paid in full and no
principal payments will be made in respect of the Class B Certificates until the
Class A-3 Certificates have been paid in full. Except as provided otherwise in
the Agreement, the principal of this Class A-1 Certificate shall be
distributable on the Targeted Maturity Date, which shall be September 27, 1999.
The Stated Maturity Date of this Class A-1 Certificate is April 26, 2004.
Distributions on this Class A-1 Certificate will be made by the 1997-A
Securitization Trustee by check mailed to the Class A-1 Certificateholder of
record in the Certificate Register without the presentation or surrender of this
Class A-1 Certificate or the making of any notation hereon except that with
respect to Class A-1 Certificates registered in the name of Cede & Co., the
nominee for The Depository Trust Company, distributions will be made by wire
transfer of immediately available funds. Except as otherwise provided in the
Agreement and notwithstanding the foregoing, the final distribution on this
Class A-1 Certificate will be made after due notice by the 1997-A Securitization
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Class A-1 Certificate at the Corporate Trust Office of the
1997-A Securitization Trustee.
It is the intention of the Transferor and the Holders of Investor
Certificates that the Investor Certificates will be indebtedness for federal,
state and local income and franchise tax purposes and for purposes of any other
tax imposed on or measured by income. The Transferor, the 1997-A Securitization
Trustee and the Holder of this Certificate (or Certificate Owner) by acceptance
of this Certificate (or, in the case of a Certificate Owner, by virtue of such
Certificate Owner's acquisition of a beneficial
A-1-3
<PAGE>
interest herein) agree to treat the Investor Certificates (or beneficial
interests therein), for purposes of federal, state and local income or franchise
taxes and any other tax imposed on or measured by income, as indebtedness and to
report the transactions contemplated by the Agreement on all applicable tax
returns in a manner consistent with such treatment. Each Holder of this
Certificate agrees that it will cause any Certificate Owner acquiring an
interest in this Certificate through it to comply with the Agreement as to
treatment as indebtedness for federal, state and local income and franchise tax
purposes and for purposes of any other tax imposed on or measured by income.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of such Certificate Owner's acquisition of
a beneficial interest herein) waives any claim to any proceeds or assets of the
Titling Trustee and to all assets of the Titling Trust other than those from
time to time included in the 1997-A SUBI Assets and those proceeds or assets
derived from or earned by such 1997-A SUBI Assets (excluding the rights to
proceeds of the Residual Value Insurance Policy).
In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a) of the Agreement and herein, it is
finally determined that the Class A-1 Certificates do not evidence indebtedness
of the Transferor for all income and franchise tax purposes, but rather
represent an equity interest in the assets of the 1997-A Securitization Trust,
then the Holder (and each Certificate Owner hereof with respect hereto by virtue
of acquiring a beneficial interest herein), agrees (i) to treat such
Certificates, together with the Transferor Certificate, as representing an
interest in a partnership for all tax purposes, (ii) to treat all payments in
respect of such Certificates (to the extent not a return of capital) as a
"guaranteed payment" thereon made pursuant to Section 707(c) of the Code, and
(iii) to allocate all other items of income, gain, deduction, loss or credit
with respect to the assets and operations of the 1997-A Securitization Trust to
the Transferor.
The Certificates do not represent an obligation of, or an interest in, the
Transferor, the Servicer, the Titling Trust, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective Affiliates. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the 1997-A SUBI and 1997-A SUBI Certificate and certain monies on deposit in the
Reserve Fund and in certain other accounts established for the benefit of the
Certificateholders, in each case to the extent and as more specifically set
forth in the Agreement. A copy of the Agreement may be examined during normal
business hours at the Corporate Trust Office of the 1997-A Securitization
Trustee, at the offices of Merrill Lynch & Co. in Hong Kong (initially at Asia
Pacific Financial, 3 Garden Road), at the offices of Bankers Trust Company
Luxembourg S.A. in Luxembourg (initially at 14 Boulevard
A-1-4
<PAGE>
F.D. Roosevelt, L-450 Luxembourg) and at such other places, if any, designated
by the 1997-A Securitization Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Transferor and the 1997-A Securitization Trustee without the
consent of any Certificateholders. In certain limited circumstances, the
Agreement may only be amended with the consent of the Holders of Investor
Certificates evidencing not less than 51% of the aggregate Percentage Interest
of all Investor Certificates, voting together as a single class. 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 herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the 1997-A Securitization Trustee in its capacity as
Certificate Registrar, or at the office of the agent of the 1997-A
Securitization Trustee in its capacity as Certificate Registrar, who shall
initially be First Trust of New York, National Association, 100 Wall Street,
20th Floor, New York, New York 10005, in the Borough of Manhattan, the City of
New York, and, with respect to the Definitive Certificates only, a transfer
agent appointed in Hong Kong and Luxembourg, or at the appropriate office of any
successor Certificate Registrar, accompanied by a written instrument of transfer
in form satisfactory to the 1997-A Securitization Trustee and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Class A-1 Certificates of
authorized denominations and of a like aggregate fractional undivided interest
will be issued to the designated transferee.
The Class A-1 Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class A-1 Certificate in a smaller minimum denomination
representing any remaining portion of the Initial Class A-1 Certificate
Balance). As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class, of authorized denominations of a like aggregate principal amount, as
requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the 1997-A Securitization
Trustee may require
A-1-5
<PAGE>
payment of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
Prior to due presentation of this Certificate for registration of transfer,
the 1997-A Securitization Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Class A-1 Certificate
is registered as the owner hereof for the purpose of receiving distributions and
for all other purposes, and neither the 1997-A Securitization Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and the
1997-A Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them pursuant
to the Agreement and the disposition of all property held as part of the 1997-A
Securitization Trust. The Transferor may at its option purchase the corpus of
the 1997-A Securitization Trust at a price specified in the Agreement, and such
purchase of the 1997-A SUBI and 1997-A SUBI Certificate and other property of
the 1997-A Securitization Trust will effect early retirement of the
Certificates; PROVIDED, HOWEVER, such right of purchase is exercisable only on
the Monthly Allocation Date on or after the Class A-3 Targeted Maturity Date, if
either before or after giving effect to any payments of principal required to be
made on such Monthly Allocation Date, the Certificate Balance shall be less than
or equal to $123,123,151.92 (ten percent (10%) of the Aggregate Net Investment
Value as of the Cutoff Date).
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of acquiring a beneficial interest herein)
covenants and agrees that prior to the date which is one year and one day after
the last date upon which (a) each Class of Investor Certificates has been paid
in full, and (b) all obligations due under any other Securitized Financing have
been paid in full, the Holder and/or Certificate Owner will not institute
against, or join any other Person in instituting against the Transferor, Toyota
Motor Credit Corporation, the 1997-A Securitization Trust, the Titling Trustee
or the Titling Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law. The foregoing shall not limit the Holder's and/or
Certificate Owner's right to file any claim in or otherwise take actions with
respect to any such proceeding instituted by any Person not under such a
constraint. This non-petition covenant shall survive the termination of the
Agreement.
A-1-6
<PAGE>
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the 1997-A Securitization Trustee, by manual signature,
this Class A-1 Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
A-1-7
<PAGE>
IN WITNESS WHEREOF, the 1997-A Securitization Trustee on behalf of the
1997-A Securitization Trust and not in its individual capacity has caused this
Class A-1 Certificate to be duly executed.
Dated: September 24, 1997
TOYOTA AUTO LEASE TRUST 1997-A
BY: U.S. BANK NATIONAL ASSOCIATION,
AS 1997-A SECURITIZATION TRUSTEE
By:
--------------------------------
Authorized Officer
A-1-8
<PAGE>
Certificate of Authentication
This is one of the Class A-1 Certificates referred
to in the within-mentioned Agreement.
U.S. BANK NATIONAL ASSOCIATION, as
1997-A Securitization Trustee
By:
--------------------------------
A-1-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*
-----------------------------
Signature Guaranteed:
*
-----------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-1-10
<PAGE>
EXHIBIT A-2
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.
TOYOTA AUTO LEASE TRUST 1997-A
6.35% AUTO LEASE ASSET BACKED CERTIFICATE, CLASS A-2
evidencing a percentage interest in the distributions allocable to the Investor
Certificates, as defined below, evidencing an undivided interest in the 1997-A
Securitization Trust, as defined below, the property of which includes, among
other things, a special unit of beneficial interest (the "1997-A SUBI") in
Toyota Lease Trust, a Delaware business trust (the "Titling Trust), which 1997-A
SUBI represents a beneficial interest in a pool of retail lease contracts for
new and used automobiles and light duty trucks (and the related automobiles and
light-duty trucks) entered into by various automobile and light duty truck
dealers pursuant to contractual arrangements with Toyota Lease Trust, and which
1997-A SUBI was originally issued to Toyota Leasing, Inc. and then to the 1997-A
Securitization Trust.
(This Certificate does not represent an obligation of, or an interest in, Toyota
Leasing, Inc., Toyota Motor Credit Corporation, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective affiliates.)
Aggregate Denominations of
all Class A-2 Certificates: CUSIP #892317 AB 4
$650,000,000
Number A-2-__ Denomination: $__________
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
____________________________ ($__________) nonassessable, fully-paid, fractional
undivided interest in the Toyota Auto Lease Trust 1997-A (the "1997-A
Securitization Trust") formed by Toyota
A-2-1
<PAGE>
Leasing, Inc., a California corporation, as Transferor (the "Transferor"). The
1997-A Securitization Trust was created pursuant to a 1997-A Securitization
Trust Agreement dated as of September 1, 1997 (the "Agreement"), between the
Transferor and U.S. Bank National Association, a national banking association,
as trustee (the "1997-A Securitization Trustee"). A summary of certain of the
pertinent provisions of the Agreement is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates issued under
the Agreement and designated as "Toyota Auto Lease Trust 1997-A 6.35% Auto Lease
Asset Backed Certificates, Class A-2" (the "Class A-2 Certificates"). Also
issued under the Agreement are Certificates designated as "Toyota Auto Lease
Trust 1997-A 6.20% Auto Lease Asset Backed Certificates, Class A-1" (the
"Class A-1 Certificates"), Certificates designated as "Toyota Auto Lease Trust
1997-A 6.45% Auto Lease Asset Backed Certificates, Class A-3" (the "Class A-3
Certificates" and, together with the Class A-1 Certificates and the Class A-2
Certificates, the "Class A Certificates"), Certificates designated as "Toyota
Auto Lease Trust 1997-A 6.75% Auto Lease Asset Backed Certificates, Class B"
(the "Class B Certificates" and, together with the Class A Certificates, the
"Investor Certificates") and a Certificate designated as the "Toyota Auto Lease
Trust 1997-A Asset Backed Transferor Certificate" (the "Transferor Certificate"
and, together with the Investor Certificates, the "Certificates"). The Class B
Certificates are subordinated to the Class A Certificates and the Transferor
Certificate is subordinated to the Investor Certificates to the extent described
in the Agreement. This Class A-2 Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class A-2 Certificate by virtue of the acceptance hereof assents
and by which such Holder is bound.
The property of the 1997-A Securitization Trust includes, among other
things, the 1997-A SUBI (exclusive of monies and payments due or payable under
any Residual Value Insurance Policy and the right to receive such amounts),
which 1997-A SUBI represents a beneficial interest in a pool of retail
automobile and light duty truck lease contracts ("Contracts") and the new and
used automobiles and light duty trucks leased thereby ("Leased Vehicles") (such
pool of Contracts and Leased Vehicles; the "1997-A SUBI Portfolio") entered into
by various automobile and light duty truck dealers pursuant to contractual
arrangements with the Titling Trust. Toyota Motor Credit Corporation acts as
servicer (in that capacity, the "Servicer") of the 1997-A SUBI Portfolio.
During the Revolving Period, Principal Collections allocable to the 1997-A SUBI
generally will be applied towards the allocation to the 1997-A SUBI Portfolio of
additional qualifying Contracts and Leased
A-2-2
<PAGE>
Vehicles from among all Subsequent Contracts and Subsequent Leased Vehicles
owned by the Titling Trust.
Under the Agreement, there will be distributed on the 25th day of March and
September or, to the extent provided in the Agreement, on the 25th day of each
month, or if such 25th day is not a Business Day, the next succeeding Business
Day (each, a "Certificate Payment Date"), commencing on March 25, 1998 (except
as provided otherwise in the Agreement), to the Person in whose name this Class
A-2 Certificate is registered at the close of business on the calendar day
immediately preceding such Certificate Payment Date or, if Definitive
Certificates have been issued, the last day of the immediately preceding
calendar month (the "Record Date"), such Class A-2 Certificateholder's
Percentage Interest in the amount distributed on the Class A-2 Certificates
pursuant to the terms of the Agreement, all to the extent and as more
specifically set forth in the Agreement. Except to the extent provided
otherwise in the Agreement, no principal payments shall be made in respect of
the Class A-2 Certificates until the Class A-1 Certificates have been paid in
full, no principal payments shall be made in respect of the Class A-3
Certificates until the Class A-2 Certificates have been paid in full and no
principal payments shall be made in respect of the Class B Certificates until
the Class A-3 Certificates have been paid in full. Except as provided otherwise
in the Agreement, the principal of this Class A-2 Certificate shall be
distributable on the Class A-2 Targeted Maturity Date, which shall be September
25, 2000. The Stated Maturity Date of this Class A-2 Certificate is April 26,
2004.
Distributions on this Class A-2 Certificate will be made by the 1997-A
Securitization Trustee by check mailed to the Class A-2 Certificateholder of
record in the Certificate Register without the presentation or surrender of this
Class A-2 Certificate or the making of any notation hereon except that with
respect to Class A-2 Certificates registered in the name of Cede & Co., the
nominee for The Depository Trust Company, distributions will be made by wire
transfer of immediately available funds. Except as otherwise provided in the
Agreement and notwithstanding the foregoing, the final distribution on this
Class A-2 Certificate will be made after due notice by the 1997-A Securitization
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Class A-2 Certificate at the Corporate Trust Office of the
1997-A Securitization Trustee.
It is the intention of the Transferor and the Holders of Investor
Certificates that the Investor Certificates will be indebtedness for federal,
state and local income and franchise tax purposes and for purposes of any other
tax imposed on or measured by income. The Transferor, the 1997-A Securitization
Trustee and the Holder of this Certificate (or Certificate Owner) by acceptance
of this Certificate (or, in the case of a Certificate Owner, by virtue of such
Certificate Owner's acquisition of a beneficial
A-2-3
<PAGE>
interest herein) agree to treat the Investor Certificates (or beneficial
interest therein), for purposes of federal, state and local income or franchise
taxes and any other tax imposed on or measured by income, as indebtedness and to
report the transactions contemplated by the Agreement on all applicable tax
returns in a manner consistent with such treatment. Each Holder of this
Certificate agrees that it will cause any Certificate Owner acquiring an
interest in this Certificate through it to comply with the Agreement as to
treatment as indebtedness for federal, state and local income and franchise tax
purposes and for purposes of any other tax imposed on or measured by income.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of such Certificate Owner's acquisition of
a beneficial interest herein) waives any claim to any proceeds or assets of the
Titling Trustee and to all assets of the Titling Trust other than those from
time to time included in the 1997-A SUBI Assets and those proceeds or assets
derived from or earned by such 1997-A SUBI Assets (excluding the rights to
proceeds of the Residual Value Insurance Policy).
In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a) of the Agreement and herein, it is
finally determined that the Class A-2 Certificates do not evidence indebtedness
of the Transferor for all income and franchise tax purposes, but rather
represent an equity interest in the assets of the 1997-A Securitization Trust,
then the Holder (and each Certificate Owner hereof with respect hereto by virtue
of acquiring a beneficial interest herein), agrees (i) to treat such
Certificates, together with the Transferor Certificate, as representing an
interest in a partnership for all tax purposes, (ii) to treat all payments in
respect of such Certificates (to the extent not a return of capital) as a
"guaranteed payment" thereon made pursuant to Section 707(c) of the Code, and
(iii) to allocate all other items of income, gain, deduction, loss or credit
with respect to the assets and operations of the 1997-A Securitization Trust to
the Transferor.
The Certificates do not represent an obligation of, or an interest in, the
Transferor, the Servicer, the Titling Trust, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective Affiliates. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the 1997-A SUBI and 1997-A SUBI Certificate and certain monies on deposit in the
Reserve Fund and in certain other accounts established for the benefit of the
Certificateholders, in each case to the extent and as more specifically set
forth in the Agreement. A copy of the Agreement may be examined during normal
business hours at the Corporate Trust Office of the 1997-A Securitization
Trustee, at the offices of Merrill Lynch & Co. in Hong Kong (initially at Asia
Pacific Financial, 3 Garden Road), at the offices of Bankers Trust Company
Luxembourg S.A. in Luxembourg (initially at 14 Boulevard
A-2-4
<PAGE>
F.D. Roosevelt, L-450 Luxembourg) and at such other places, if any, designated
by the 1997-A Securitization Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Transferor and the 1997-A Securitization Trustee without the
consent of any Certificateholders. In certain limited circumstances, the
Agreement may only be amended with the consent of the Holders of Investor
Certificates evidencing not less than 51% of the aggregate Percentage Interest
of all Investor Certificates, voting together as a single class. 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 herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the 1997-A Securitization Trustee in its capacity as
Certificate Registrar, or at the office of the agent of the 1997-A
Securitization Trustee in its capacity as Certificate Registrar, who shall
initially be First Trust of New York, National Association, 100 Wall Street,
20th Floor, New York, New York 10005, in the Borough of Manhattan, the City of
New York, and, with respect to the Definitive Certificates only, a transfer
agent appointed in Hong Kong and Luxembourg, or at the appropriate office of any
successor Certificate Registrar, accompanied by a written instrument of transfer
in form satisfactory to the 1997-A Securitization Trustee and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Class A-2 Certificates of
authorized denominations and of a like aggregate fractional undivided interest
will be issued to the designated transferee.
The Class A-2 Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class A-2 Certificate in a smaller minimum denomination
representing any remaining portion of the Initial Class A-2 Certificate
Balance). As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class, of authorized denominations of a like aggregate principal amount, as
requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the 1997-A Securitization
Trustee may require
A-2-5
<PAGE>
payment of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
Prior to due presentation of this Certificate for registration of transfer,
the 1997-A Securitization Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Class A-2 Certificate
is registered as the owner hereof for the purpose of receiving distributions and
for all other purposes, and neither the 1997-A Securitization Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and the
1997-A Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them pursuant
to the Agreement and the disposition of all property held as part of the 1997-A
Securitization Trust. The Transferor may at its option purchase the corpus of
the 1997-A Securitization Trust at a price specified in the Agreement, and such
purchase of the 1997-A SUBI and 1997-A SUBI Certificate and other property of
the 1997-A Securitization Trust will effect early retirement of the
Certificates; PROVIDED, HOWEVER, such right of purchase is exercisable only on
the Monthly Allocation Date on or after the Class A-3 Targeted Maturity Date, if
either before or after giving effect to any payments of principal required to be
made on such Monthly Allocation Date, the Certificate Balance shall be less than
or equal to $123,123,151.92 (ten percent (10%) of the Aggregate Net Investment
Value as of the Cutoff Date).
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of acquiring a beneficial interest herein)
covenants and agrees that prior to the date which is one year and one day after
the last date upon which (a) each Class of Investor Certificates has been paid
in full, and (b) all obligations due under any other Securitized Financing have
been paid in full, the Holder and/or Certificate Owner will not institute
against, or join any other Person in instituting against the Transferor, Toyota
Motor Credit Corporation, the 1997-A Securitization Trust, the Titling Trustee
or the Titling Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law. The foregoing shall not limit the Holder's and/or
Certificate Owner's right to file any claim in or otherwise take actions with
respect to any such proceeding instituted by any Person not under such a
constraint. This non-petition covenant shall survive the termination of the
Agreement.
A-2-6
<PAGE>
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the 1997-A Securitization Trustee, by manual signature,
this Class A-2 Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
A-2-7
<PAGE>
IN WITNESS WHEREOF, the 1997-A Securitization Trustee on behalf of the
1997-A securitization Trust and not in its individual capacity has caused this
Class A-2 Certificate to be duly executed.
Dated: September 24, 1997
TOYOTA AUTO LEASE TRUST 1997-A
By: U.S. BANK NATIONAL ASSOCIATION,
AS 1997-A SECURITIZATION TRUSTEE
By:
--------------------------------
Authorized Officer
A-2-8
<PAGE>
Certificate of Authentication
This is one of the Class A-2 Certificates referred
to in the within-mentioned Agreement.
U.S. BANK NATIONAL ASSOCIATION, as
1997-A Securitization Trustee
By:
--------------------------------
A-2-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*
-----------------------------
Signature Guaranteed:
*
-----------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-2-10
<PAGE>
EXHIBIT A-3
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.
TOYOTA AUTO LEASE TRUST 1997-A
6.45% AUTO LEASE ASSET BACKED CERTIFICATE, CLASS A-3
evidencing a percentage interest in the distributions allocable to the Investor
Certificates, as defined below, evidencing an undivided interest in the 1997-A
Securitization Trust, as defined below, the property of which includes, among
other things, a special unit of beneficial interest (the "1997-A SUBI") in
Toyota Lease Trust, a Delaware business trust (the "Titling Trust"), which
1997-A SUBI represents a beneficial interest in a pool of retail lease contracts
for new and used automobiles and light duty trucks (and the related automobiles
and light-duty trucks) entered into by various automobile and light duty truck
dealers pursuant to contractual arrangements with Toyota Lease Trust, and which
1997-A SUBI was originally issued to Toyota Leasing, Inc. and then to the 1997-A
Securitization Trust.
(This Certificate does not represent an obligation of, or an interest in, Toyota
Leasing, Inc., Toyota Motor Credit Corporation, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective affiliates.)
Aggregate Denominations of
all Class A-3 Certificates: CUSIP #892317 AC 2
$72,750,000
Number A-3-__ Denomination: $____________
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
_______________________________ ($____________) nonassessable, fully-paid,
fractional undivided interest in the Toyota Auto Lease Trust 1997-A (the "1997-A
Securitization Trust") formed by Toyota
A-3-1
<PAGE>
Leasing, Inc., a California corporation, as Transferor (the "Transferor"). The
1997-A Securitization Trust was created pursuant to a 1997-A Securitization
Trust Agreement dated as of September 1, 1997 (the "Agreement"), between the
Transferor and U.S. Bank National Association, a national banking association,
as trustee (the "1997-A Securitization Trustee"). A summary of certain of the
pertinent provisions of the Agreement is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates issued under
the Agreement and designated as "Toyota Auto Lease Trust 1997-A 6.45% Auto Lease
Asset Backed Certificates, Class A-3" (the "Class A-3 Certificates"). Also
issued under the Agreement are Certificates designated as "Toyota Auto Lease
Trust 1997-A 6.20% Auto Lease Asset Backed Certificates, Class A-1" (the
"Class A-1 Certificates"), Certificates designated as "Toyota Auto Lease Trust
1997-A 6.35% Auto Lease Asset Backed Certificates, Class A-2" (the "Class A-2
Certificates" and, together with the Class A-1 Certificates and the Class A-3
Certificates, the "Class A Certificates"), Certificates designated as "Toyota
Auto Lease Trust 1997-A 6.75% Auto Lease Asset Backed Certificates, Class B"
(the "Class B Certificates" and, together with the Class A Certificates, the
"Investor Certificates") and a Certificate designated as the "Toyota Auto Lease
Trust 1997-A Asset Backed Transferor Certificate" (the "Transferor Certificate"
and, together with the Investor Certificates, the "Certificates"). The Class B
Certificates are subordinated to the Class A Certificates and the Transferor
Certificate is subordinated to the Investor Certificates to the extent described
in the Agreement. This Class A-3 Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class A-3 Certificate by virtue of the acceptance hereof assents
and by which such Holder is bound.
The property of the 1997-A Securitization Trust includes, among other
things, the 1997-A SUBI (exclusive of monies and payments due or payable under
any Residual Value Insurance Policy and the right to receive such amounts),
which 1997-A SUBI represents a beneficial interest in a pool of retail
automobile and light duty truck lease contracts ("Contracts") and the new and
used automobiles and light duty trucks leased thereby ("Leased Vehicles") (such
pool of Contracts and Leased Vehicles; the "1997-A SUBI Portfolio") entered into
by various automobile and light duty truck dealers pursuant to contractual
arrangements with the Titling Trust. Toyota Motor Credit Corporation acts as
servicer (in that capacity, the "Servicer") of the 1997-A SUBI Portfolio.
During the Revolving Period, Principal Collections allocable to the 1997-A SUBI
generally will be applied towards the allocation to the 1997-A SUBI Portfolio of
Subsequent Contracts and Subsequent Leased
A-3-2
<PAGE>
Vehicles from among all other unallocated Contracts and Leased Vehicles owned by
the Titling Trust.
Under the Agreement, there will be distributed on the 25th day of March and
September or, to the extent provided in the Agreement, on the 25th day of each
month, or if such 25th day is not a Business Day, the next succeeding Business
Day (each, a "Certificate Payment Date"), commencing on March 25, 1998 (except
as provided otherwise in the Agreement), to the Person in whose name this Class
A-3 Certificate is registered at the close of business on the calendar day
immediately preceding such Certificate Payment Date or, if Definitive
Certificates have been issued, the last day of the immediately preceding
calendar month (the "Record Date"), such Class A-3 Certificateholder's
Percentage Interest in the amount distributed on the Class A-3 Certificates
pursuant to the terms of the Agreement, all to the extent and as more
specifically set forth in the Agreement. Except to the extent provided
otherwise in the Agreement, no principal payments shall be made in respect of
the Class A-2 Certificates until the Class A-1 Certificates have been paid in
full, and no principal payments shall be made in respect of the Class A-3
Certificates until the Class A-2 Certificates have been paid in full and no
principal payments shall be made in respect of the Class B Certificates until
the Class A-3 Certificates have been paid in full. Except as provided otherwise
in the Agreement, the principal of this Class A-3 Certificate shall be
distributable on the Class A-3 Targeted Maturity Date, which shall be March 26,
2001. The Stated Maturity Date of this Class A-3 Certificate is April 26, 2004.
Distributions on this Class A-3 Certificate will be made by the 1997-A
Securitization Trustee by check mailed to the Class A-3 Certificateholder of
record in the Certificate Register without the presentation or surrender of this
Class A-3 Certificate or the making of any notation hereon except that with
respect to Class A-3 Certificates registered in the name of Cede & Co., the
nominee for The Depository Trust Company, distributions will be made by wire
transfer of immediately available funds. Except as otherwise provided in the
Agreement and notwithstanding the foregoing, the final distribution on this
Class A-3 Certificate will be made after due notice by the 1997-A Securitization
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Class A-3 Certificate at the Corporate Trust Office of the
1997-A Securitization Trustee.
It is the intention of the Transferor and the Holders of Investor
Certificates that the Investor Certificates will be indebtedness for federal,
state and local income and franchise tax purposes and for purposes of any other
tax imposed on or measured by income. The Transferor, the 1997-A Securitization
Trustee and the Holder of this Certificate (or Certificate Owner) by acceptance
of this Certificate (or, in the case of a Certificate Owner, by virtue of such
Certificate Owner's acquisition of a beneficial
A-3-3
<PAGE>
interest herein) agree to treat the Investor Certificates (or beneficial
interest therein), for purposes of federal, state and local income or franchise
taxes and any other tax imposed on or measured by income, as indebtedness and to
report the transactions contemplated by the Agreement on all applicable tax
returns in a manner consistent with such treatment. Each Holder of this
Certificate agrees that it will cause any Certificate Owner acquiring an
interest in this Certificate through it to comply with the Agreement as to
treatment as indebtedness for federal, state and local income and franchise tax
purposes and for purposes of any other tax imposed on or measured by income.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of such Certificate Owner's acquisition of
a beneficial interest herein) waives any claim to any proceeds or assets of the
Titling Trustee and to all assets of the Titling Trust other than those from
time to time included in the 1997-A SUBI Assets and those proceeds or assets
derived from or earned by such 1997-A SUBI Assets (excluding the rights to
proceeds of the Residual Value Insurance Policy).
In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a) of the Agreement and herein, it is
finally determined that the Class A-3 Certificates do not evidence indebtedness
of the Transferor for all income and franchise tax purposes, but rather
represent an equity interest in the assets of the 1997-A Securitization Trust,
then the Holder (and each Certificate Owner hereof with respect hereto by virtue
of acquiring a beneficial interest herein), agrees (i) to treat such
Certificates, together with the Transferor Certificate, as representing an
interest in a partnership for all tax purposes, (ii) to treat all payments in
respect of such Certificates (to the extent not a return of capital) as a
"guaranteed payment" thereon made pursuant to Section 707(c) of the Code, and
(iii) to allocate all other items of income, gain, deduction, loss or credit
with respect to the assets and operations of the 1997-A Securitization Trust to
the Transferor.
The Certificates do not represent an obligation of, or an interest in, the
Transferor, the Servicer, the Titling Trust, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective Affiliates. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the 1997-A SUBI and 1997-A SUBI Certificate and certain monies on deposit in the
Reserve Fund and in certain other accounts established for the benefit of the
Certificateholders, in each case to the extent and as more specifically set
forth in the Agreement. A copy of the Agreement may be examined during normal
business hours at the Corporate Trust Office of the 1997-A Securitization
Trustee, at the offices of Merrill Lynch & Co. in Hong Kong (initially at Asia
Pacific Financial, 3 Garden Road), at the offices of Bankers Trust Company
Luxembourg S.A. in Luxembourg (initially at 14 Boulevard
A-3-4
<PAGE>
F.D. Roosevelt, L-450 Luxembourg) and at such other places, if any, designated
by the 1997-A Securitization Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Transferor and the 1997-A Securitization Trustee without the
consent of any Certificateholders. In certain limited circumstances, the
Agreement may only be amended with the consent of the Holders of Investor
Certificates evidencing not less than 51% of the aggregate Percentage Interest
of all Investor Certificates, voting together as a single class. 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 herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the 1997-A Securitization Trustee in its capacity as
Certificate Registrar, or at the office of the agent of the 1997-A
Securitization Trustee in its capacity as Certificate Registrar, who shall
initially be First Trust of New York, National Association, 100 Wall Street,
20th Floor, New York, New York 10005, in the Borough of Manhattan, the City of
New York, and with respect to the Definitive Certificates only, a transfer agent
appointed in Hong Kong and Luxembourg, or at the appropriate office of any
successor Certificate Registrar, accompanied by a written instrument of transfer
in form satisfactory to the 1997-A Securitization Trustee and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Class A-3 Certificates of
authorized denominations and of a like aggregate fractional undivided interest
will be issued to the designated transferee.
The Class A-3 Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class A-3 Certificate in a smaller minimum denomination
representing any remaining portion of the Initial Class A-3 Certificate
Balance). As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class, of authorized denominations of a like aggregate principal amount, as
requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the 1997-A Securitization
Trustee may require
A-3-5
<PAGE>
payment of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
Prior to due presentation of this Certificate for registration of transfer,
the 1997-A Securitization Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Class A-3 Certificate
is registered as the owner hereof for the purpose of receiving distributions and
for all other purposes, and neither the 1997-A Securitization Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and the
1997-A Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them pursuant
to the Agreement and the disposition of all property held as part of the 1997-A
Securitization Trust. The Transferor may at its option purchase the corpus of
the 1997-A Securitization Trust at a price specified in the Agreement, and such
purchase of the 1997-A SUBI and 1997-A SUBI Certificate and other property of
the 1997-A Securitization Trust will effect early retirement of the
Certificates; PROVIDED, HOWEVER, such right of purchase is exercisable only on
the Monthly Allocation Date on or after the Class A-3 Targeted Maturity Date, if
either before or after giving effect to any payments of principal required to be
made on such Monthly Allocation Date, the Certificate Balance shall be less than
or equal to $123,123,151.92 (ten percent (10%) of the Aggregate Net Investment
Value as of the Cutoff Date).
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of acquiring a beneficial interest herein)
covenants and agrees that prior to the date which is one year and one day after
the last date upon which (a) each Class of Investor Certificates has been paid
in full, and (b) all obligations due under any other Securitized Financing have
been paid in full, the Holder and/or Certificate Owner will not institute
against, or join any other Person in instituting against the Transferor, Toyota
Motor Credit Corporation, the 1997-A Securitization Trust, the Titling Trustee
or the Titling Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law. The foregoing shall not limit the Holder's and/or
Certificate Owner's right to file any claim in or otherwise take actions with
respect to any such proceeding instituted by any Person not under such a
constraint. This nonpetition covenant shall survive the termination of the
Agreement.
A-3-6
<PAGE>
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the 1997-A Securitization Trustee, by manual signature,
this Class A-3 Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
A-3-7
<PAGE>
IN WITNESS WHEREOF, the 1997-A Securitization Trustee on behalf of the
1997-A Securitization Trust and not in its individual capacity has caused this
Class A-3 Certificate to be duly executed.
Dated: September 24, 1997
TOYOTA AUTO LEASE TRUST 1997-A
By: U.S. BANK NATIONAL ASSOCIATION, AS
1997-A SECURITIZATION TRUSTEE
By:
--------------------------------
Authorized Officer
A-3-8
<PAGE>
Certificate of Authentication
This is one of the Class A-3 Certificates referred
to in the within-mentioned Agreement.
U.S. BANK NATIONAL ASSOCIATION, as
1997-A Securitization Trustee
By:
--------------------------------
A-3-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*
-----------------------------
Signature Guaranteed:
*
-----------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-3-10
<PAGE>
EXHIBIT B
THIS CLASS B CERTIFICATE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION IN
RELIANCE ON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH STATE OR FOREIGN
SECURITIES LAWS. THE CLASS B CERTIFICATES ARE ELIGIBLE FOR PURCHASE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT. NO RESALE OR OTHER TRANSFER OF THIS
CERTIFICATE SHALL BE MADE UNLESS SUCH RESALE OR TRANSFER (A) IS MADE IN
ACCORDANCE WITH SECTION 4.03 OF THE AGREEMENT REFERRED TO HEREIN AND (B) IS MADE
(i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(ii) IN A TRANSACTION (OTHER THAN A TRANSACTION IN CLAUSE (iv) BELOW) EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
AND FOREIGN SECURITIES LAWS, (iii) TO TOYOTA LEASING INC. (THE "TRANSFEROR") OR
(iv) TO A PERSON WHO THE TRANSFEROR OF THIS CLASS B CERTIFICATE REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT THAT IS AWARE THAT THE RESALE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A OR TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
UNDER RULE 501(a)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT. IN THE EVENT THAT
THE TRANSFER OF A CLASS B CERTIFICATE IS TO BE MADE AS DESCRIBED IN CLAUSE (ii)
OF THE PRECEDING SENTENCE, THE PROSPECTIVE INVESTOR IS REQUIRED TO DELIVER AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE 1997-A
SECURITIZATION TRUSTEE AND THE TRANSFEROR TO THE EFFECT THAT SUCH TRANSFER MAY
BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE OR
FOREIGN SECURITIES LAWS. THE PROSPECTIVE TRANSFEREE IN A TRANSFER OF A CLASS B
CERTIFICATE TO BE MADE AS DESCRIBED IN CLAUSE (iv) ABOVE MUST DELIVER TO THE
1997-A SECURITIZATION TRUSTEE A REPRESENTATION LETTER REQUIRED BY SECTION 4.03
OF THE AGREEMENT REFERRED TO HEREIN. PROSPECTIVE PURCHASERS OF THE CLASS B
CERTIFICATES ARE HEREBY NOTIFIED THAT THE SELLER OF ANY CLASS B CERTIFICATES MAY
BE RELYING ON THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SECTION 5 OF
THE ACT PROVIDED BY RULE 144A UNDER THE ACT.
THIS CLASS B CERTIFICATE OR A BENEFICIAL INTEREST HEREIN MAY NOT BE
TRANSFERRED UNLESS THE 1997-A SECURITIZATION TRUSTEE HAS RECEIVED (I) EITHER (A)
A CERTIFICATE FROM THE TRANSFEREE TO THE
B-1
<PAGE>
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN, TRUST OR ACCOUNT
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN DEFINED IN SECTION 3(32)
OF ERISA SUBJECT TO ANY FEDERAL STATE OR LOCAL LAW WHICH IS, TO A MATERIAL
EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW")
(EACH, A "BENEFIT PLAN") AND IS NOT AN ENTITY INCLUDING AN INSURANCE COMPANY
SEPARATE ACCOUNT OR AN INSURANCE COMPANY GENERAL ACCOUNT IF THE ASSETS IN ANY
SUCH ACCOUNTS CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF REGULATION SECTION
2510.3-101 OF ERISA, WHOSE UNDERLYING ASSETS INCLUDE BENEFIT PLAN ASSETS BY
REASON OF A BENEFIT PLAN'S INVESTMENT IN THE ENTITY (SUCH BENEFIT PLAN OR
ENTITY, A "BENEFIT PLAN INVESTOR") OR (B) AN OPINION OF COUNSEL SATISFACTORY TO
THE 1997-A SECURITIZATION TRUSTEE, THE TRANSFEROR AND THE SERVICER TO THE EFFECT
THAT THE PURCHASE OR HOLDING OF SUCH CERTIFICATE WILL NOT CONSTITUTE OR RESULT
IN THE ASSETS OF THE 1997-A SECURITIZATION TRUST BEING DEEMED TO BE "PLAN
ASSETS" SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA OR
PROHIBITED TRANSACTIONS PROVISIONS OF SECTION 4975 OF THE CODE OR SIMILAR LAW,
WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF
SECTION 406 OR SECTION 407 OF ERISA OR SECTION 4975 OF THE CODE OR SIMILAR LAW,
AND WILL NOT SUBJECT THE TRUSTEE, THE TRANSFEROR OR THE SERVICER TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OF SIMILAR LAW) IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT AND (II) A CERTIFICATE TO THE EFFECT THAT IF THE TRANSFEREE IS A
PARTNERSHIP, GRANTOR TRUST OR S CORPORATION FOR FEDERAL INCOME TAX PURPOSES (A
"FLOW-THROUGH ENTITY"), ANY CLASS B CERTIFICATES OWNED BY SUCH FLOW-THROUGH
ENTITY WILL REPRESENT LESS THAN 50% OF THE VALUE OF ALL THE ASSETS OWNED BY SUCH
FLOW-THROUGH ENTITY AND NO SPECIAL ALLOCATION OF INCOME, GAIN, LOSS, DEDUCTION
OR CREDIT FROM SUCH CLASS B CERTIFICATES WILL BE MADE AMONG THE BENEFICIAL
OWNERS OF SUCH FLOW-THROUGH ENTITY. NOTWITHSTANDING THE FOREGOING RESTRICTIONS,
THE 1997-A SECURITIZATION TRUSTEE SHALL PERMIT A TRANSFER OF CLASS B
CERTIFICATES TO A BENEFIT PLAN IF, IN THE SOLE DETERMINATION OF THE 1997-A
SECURITIZATION TRUSTEE, AFTER GIVING EFFECT TO THE PROPOSED TRANSFER TO SUCH
BENEFIT PLAN, BENEFIT PLANS WILL NOT OWN 25% OR MORE OF THE CLASS B CERTIFICATES
(BY CLASS CERTIFICATE BALANCE).
IN ADDITION, NO RESALE OR OTHER TRANSFER OF THIS CLASS B CERTIFICATE OR ANY
INTEREST THEREIN SHALL BE PERMITTED UNLESS
B-2
<PAGE>
IMMEDIATELY AFTER GIVING EFFECT TO SUCH RESALE OR OTHER TRANSFER, THERE WOULD BE
FEWER THAN 100 CLASS B CERTIFICATEHOLDERS.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO BELOW.
TOYOTA AUTO LEASE TRUST 1997-A
6.75% AUTO LEASE ASSET BACKED CERTIFICATE, CLASS B
evidencing a percentage interest in the distributions allocable to the
Investor Certificates, as defined below, evidence an undivided
interest in the 1997-A Securitization Trust, as defined below, the
property of which includes, among other things, a special unit of
beneficial interest (the "1997-A SUBI") in Toyota Lease Trust, a
Delaware business trust (the "Titling Trust"), which 1997-A SUBI
represents a beneficial interest in a pool of retail lease contracts
for new and used automobiles and light duty trucks (and the related
automobiles and light-duty trucks) entered into by various automobile
and light duty truck dealers pursuant to contractual arrangements with
Toyota Lease Trust, and which special unit of beneficial interest was
originally issued to Toyota Leasing Inc. and then to the 1997-A
Securitization Trust.
(This Certificate does not represent an obligation of, or an interest
in, Toyota Leasing, Inc., Toyota Motor Credit Corporation, the Titling
Trustee or the 1997-A Securitization Trustee or any of their
respective affiliates.)
Aggregate Denominations
of all Class B Certificates: CUSIP #892317 AD 0
$73,850,000
Number B-__ Denomination: $__________
THIS CERTIFIES THAT _______________ is the registered owner of a
________________________________________________ DOLLAR ($__________ )
nonassessable, fully-paid, fractional undivided interest in the Toyota Auto
Lease Trust 1997-A (the "1997-A Securitization Trust") formed by Toyota Leasing,
Inc., a California corporation, as Transferor (the "Transferor"). The 1997-A
Securitization Trust was created pursuant to a 1997-A Securitization Trust
Agreement dated as of September 1, 1997 (the "Agreement"), between the
Transferor and U.S. Bank National
B-3
<PAGE>
Association, a national banking association, as trustee (the "1997-A
Securitization Trustee"). A summary of certain of the pertinent provisions of
the Agreement is set forth below. To the extent not otherwise defined herein,
the capitalized terms used herein have the meanings assigned to them in the
Agreement.
This Certificate is one of the duly authorized Certificates issued under
the Agreement and designated as "Toyota Auto Lease Trust 1997-A 6.75% Auto Lease
Asset Backed Certificates, Class B" (the "Class B Certificates"). Also issued
under the Agreement are Certificates designated as "Toyota Auto Lease Trust
1997-A 6.20% Auto Lease Asset Backed Certificates, Class A-1" (the "Class A-1
Certificates"), Certificates designated as "Toyota Auto Lease Trust 1997-A 6.35%
Auto Lease Asset Backed Certificates, Class A-2" (the "Class A-2 Certificates"),
Certificates designated as "Toyota Auto Lease Trust 1997-A 6.45% Auto Lease
Asset Backed Certificates, Class A-3" (the "Class A-3 Certificates" and,
together with the Class A-1 Certificates and the Class A-2 Certificates, the
"Class A Certificates" and, together with the Class B Certificates, the
"Investor Certificates") and a Certificate designated as the "Toyota Auto Lease
Trust 1997-A Auto Lease Asset Backed Transferor Certificate" (the "Transferor
Certificate" and, together with the Investor Certificates, the "Certificates").
The Class B Certificates are subordinated to the Class A Certificates, and the
Transferor Certificate is subordinated to the Investor Certificates, to the
extent described in the Agreement. This Class B Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class B Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The property of the 1997-A Securitization Trust includes, among other
things, the 1997-A SUBI (exclusive of monies and payments due or payable under
any Residual Value Policy and the right to receive such amounts), which 1997-A
SUBI represents a beneficial interest in a pool of retail automobile and light
duty truck lease contracts ("Contracts") and the new and used automobiles and
light duty trucks leased thereby ("Leased Vehicles") (such pool of Contracts and
Leased Vehicles, the "1997-A SUBI Portfolio") entered into by various automobile
and light duty truck dealers pursuant to contractual arrangements with the
Titling Trust. Toyota Motor Credit Corporation acts as servicer (in that
capacity, the "Servicer") of the 1997-A SUBI Portfolio.
Under the Agreement, there will be distributed on the 25th day of March and
September or, to the extent provided in the Agreement, on the 25th day of each
month, or if such 25th day is not a Business Day, the next succeeding Business
Day (each, a "Certificate Payment Date"), commencing on March 25, 1998 (except
as provided otherwise in the Agreement), to the Person in whose name this Class
B Certificate is registered at the close of business on the last calendar day
of the immediately preceding
B-4
<PAGE>
calendar month (each a "Record Date"), such Class B Certificateholder's
Percentage Interest in the amount distributed on the Class B Certificates
pursuant to the terms of the Agreement, all to the extent and as more
specifically set forth in the Agreement. To the extent provided in the
Agreement, no principal payments shall be made in respect of the Class A-2
Certificates until the Class A-1 Certificates have been paid in full, no
principal payments shall be made in respect of the Class A-3 Certificates until
the Class A-2 Certificates have been paid in full and no principal payments
shall be made in respect of the Class B Certificates until the Class A-3
Certificates have been paid in full. Except as provided otherwise in the 1997-A
Securitization Trust Agreement, the principal of this Class B Certificate shall
be distributable on the Class B Targeted Maturity Date, which shall be September
25, 2001. The Stated Maturity Date of this Class B Certificate is April 26,
2004.
Distributions on this Class B Certificate will be made by the 1997-A
Securitization Trustee by check mailed to the Class B Certificateholder of
record in the Certificate Register without the presentation or surrender of this
Class B Certificate or the making of any notation hereon or, at the option of a
Holder who owns Class B Certificates having an aggregate initial denomination of
$250,000 or more, upon written instructions received by the 1997-A
Securitization Trustee not later than fifteen days prior to the related Record
Date, by wire transfer of immediately available funds to an account maintained
by such Holder at a depository institution in the United States having
appropriate facilities therefor. Except as otherwise provided in the Agreement
and notwithstanding the foregoing, the final distribution on this Class B
Certificate will be made after due notice by the 1997-A Securitization Trustee
of the pendency of such distribution and only upon presentation and surrender of
this Class B Certificate at the Corporate Trust Office of the 1997-A
Securitization Trustee.
It is the intention of the Transferor and the Holders of Investor
Certificates that the Investor Certificates will be indebtedness for federal,
state and local income and franchise tax purposes and for purposes of any other
tax imposed on or measured by income. The Transferor, the 1997-A Securitization
Trustee and the Holder of this Certificate by acceptance of this Certificate
agree to treat the Investor Certificates, for purposes of federal, state and
local income or franchise taxes and any other tax imposed on or measured by
income, as indebtedness and to report the transactions contemplated by the
Agreement on all applicable tax returns in a manner consistent with such
treatment.
By accepting this Certificate, the Holder hereof waives any claim to any
proceeds or assets of the Titling Trustee and to all assets of the Titling Trust
other than those from time to time included in the 1997-A SUBI Assets and those
proceeds or assets
B-5
<PAGE>
derived from or earned by such 1997-A SUBI Assets (excluding the rights of the
Residual Value Insurance Policy).
In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a) of the Agreement and herein, it is
finally determined that the Class B Certificates do not evidence indebtedness of
the Transferor for all income and franchise tax purposes, but rather represent
an equity interest in the assets of the 1997-A Securitization Trust, then the
Holder hereof agrees (i) to treat such Certificates, together with the
Transferor Certificate, as representing an interest in a partnership for all tax
purposes, (ii) to treat all payments in respect of such Certificates (to the
extent not a return of capital) as a "guaranteed payment" thereon made pursuant
to Section 707(c) of the Code, and (iii) to allocate all other items of income,
gain, deduction, loss or credit with respect to the assets and operations of the
1997-A Securitization Trust to the Transferor.
The Certificates do not represent an obligation of, or an interest in, the
Transferor, the Servicer, the Titling Trust, the Titling Trustee, the 1997-A
Securitization Trustee or any of their respective Affiliates. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the 1997-A SUBI and 1997-A SUBI Certificate and certain monies on deposit in the
Reserve Fund and in certain other accounts established for the benefit of the
Certificateholders, in each case to the extent and as more specifically set
forth in the Agreement. A copy of the Agreement may be examined during normal
business hours at the Corporate Trust Office of the 1997-A Securitization
Trustee, at the offices of Merrill Lynch & Co. in Hong Kong (initially at Asia
Pacific Financial, 3 Garden Road), at the offices of Bankers Trust Company
Luxembourg S.A. in Luxembourg (initially at 14 Boulevard F.D. Roosevelt, L-450
Luxembourg) and at such other places, if any, designated by the 1997-A
Securitization Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Transferor and the 1997-A Securitization Trustee without the
consent of any Certificateholders. In certain limited circumstances, the
Agreement may only be amended with the consent of the Holders of Investor
Certificates evidencing not less than 51% of the aggregate Percentage Interest
of all Investor Certificates, voting together as a single class. 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 herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate.
B-6
<PAGE>
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Registrar upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the 1997-A Securitization Trustee in its capacity as
Certificate Registrar, or at the office of the agent of the 1997-A
Securitization Trustee in its capacity as Certificate Registrar, who shall
initially be First Trust of New York, National Association, 100 Wall Street,
20th Floor, New York, New York 10005, or at the appropriate office of any
successor Certificate Registrar, accompanied by a written instrument of transfer
in form satisfactory to the 1997-A Securitization Trustee and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Class B Certificates of
authorized denominations and of a like aggregate fractional undivided interest
will be issued to the designated transferee.
The Class B Certificates are issuable only as registered Certificates
without coupons in denominations of $250,000 and integral multiples of $1,000 in
excess thereof, (except for one Class B Certificate in a smaller minimum
denomination representing any remaining portion of the Initial Class B
Certificate Balance). As provided in the Agreement, and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class, of authorized denominations of a like aggregate
principal amount, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
1997-A Securitization Trustee may require payment of a sum sufficient to cover
any tax or governmental charges payable in connection therewith.
Prior to due presentation of this Certificate for registration of transfer,
the 1997-A Securitization Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Class B Certificate is
registered as the owner hereof for the purpose of receiving distributions and
for all other purposes, and neither the 1997-A Securitization Trustee, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and the
1997-A Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them pursuant
to the Agreement and the disposition of all property held as part of the 1997-A
Securitization Trust. The Transferor may at its option purchase the corpus of
the 1997-A Securitization Trust at a price specified in the Agreement, and such
purchase of the 1997-A SUBI and 1997-A SUBI Certificate and other property of
the 1997-A Securitization Trust will effect early retirement of the
Certificates; PROVIDED,
B-7
<PAGE>
HOWEVER, such right of purchase is exercisable only on the Monthly Allocation
Date on or after the Class A-3 Targeted Maturity Date, if either before or after
giving effect to any payments of principal required to be made on such Monthly
Allocation Date, the Certificate Balance shall be less than or equal to
$123,123,151.92 (ten percent (10%) of the Aggregate Net Investment Value as of
the Cutoff Date).
By accepting this Certificate, the Holder hereof covenants and agrees that
prior to the date which is one year and one day after the last date upon which
(a) each Class of Investor Certificates has been paid in full, and (b) all
obligations due under any other Securitized Financing have been paid in full,
the Holder will not institute against, or join any other Person in instituting
against the Transferor, Toyota Motor Credit Corporation, the 1997-A
Securitization Trust, the Titling Trustee or the Titling Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceedings under any federal or state bankruptcy or similar law. The foregoing
shall not limit the Holder's right to file any claim in or otherwise take
actions with respect to any such proceeding instituted by any Person not under
such a constraint. This non-petition covenant shall survive the termination of
the Agreement.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the 1997-A Securitization Trustee, by manual signature,
this Class B Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
B-8
<PAGE>
IN WITNESS WHEREOF, the 1997-A Securitization Trustee on behalf of the
1997-A Securitization Trust and not in its individual capacity has caused this
Class B Certificate to be duly executed.
Dated: September 24, 1997
TOYOTA AUTO LEASE TRUST 1997-A
By: U.S. BANK NATIONAL ASSOCIATION,
AS 1997-A SECURITIZATION TRUSTEE
By:
--------------------------------
Authorized Officer
B-9
<PAGE>
Certificate of Authentication
This is one of the Class B Certificates referred
to in the within-mentioned Agreement.
U.S. BANK NATIONAL ASSOCIATION, as
1997-A Securitization Trustee
By:
--------------------------------
B-10
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*
-----------------------------
Signature Guaranteed:
*
-----------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
B-11
<PAGE>
ANNEX OF DEFINITIONS
Unless otherwise specified in the agreement to which this Annex of
Definitions is attached or which refers to this Annex of Definitions, the
following terms have the indicated meanings. Terms defined herein but not
directly or indirectly used or referenced in such agreement shall not be deemed
to have any meaning or significance with respect to such agreement.
"ADMINISTRATIVE EXPENSE" means any reasonable administrative cost or
expense associated with any relevant Securitization Trust and the Titling Trust,
as the context indicates, including reasonable fees and expenses of attorneys
and accountants.
"ADMINISTRATIVE LIEN" means any first lien specified upon any Certificate
of Title as deemed necessary and useful by the Servicer or the UTI Beneficiary
to provide for delivery of title documentation to the Titling Trustee or its
designee.
"ADMINISTRATIVE LIENHOLDER" means the Person or Persons identified as such
from time to time to the Titling Trustee by the Servicer and in whose name one
or more Administrative Liens are specified on Certificates of Title.
"ADVANCE" if a Transaction Document specifies that Advances are to be made,
unless otherwise provided in such Transaction Document, means an advance to be
made by the Servicer on the date specified in such Transaction Document in
respect of the related SUBI Collection Period and with respect to each
outstanding Contract that is included in the related SUBI Portfolio as to which
the scheduled Monthly Payment is delinquent or as to which payments have been
deferred by the Servicer which deferrals have resulted in any diminution of the
amount of Collections received in connection therewith relative to the
originally scheduled Monthly Payments, each such advance to be in an amount
equal to the aggregate amount of the Monthly Payments due thereon during such
SUBI Collection Period but not received during such SUBI Collection Period.
"AFFECTED TRUST ASSETS" means a discrete Titling Trust Asset or group of
Titling Trust Assets impacted by any Liability (including contract, tort or tax
claims relating to one or more specific Contracts or Leased Vehicles) as
described in Section 3.04 of the Titling Trust Agreement.
"AFFILIATE" means, as to any Person, any other Person that (i) directly or
indirectly controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any employee benefit plan) or (ii) is an officer or director of
such Person. A Person shall be deemed to be "controlled by" any other Person if
such other Person possesses, directly or indirectly, power (x) to vote 5% or
more of the securities (on a fully diluted basis) having ordinary voting power
for the election of directors or managing partners; or (y) to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise.
<PAGE>
"AUTHORIZED NEWSPAPER" means a newspaper of general circulation in the
Borough of Manhattan, The City of New York, printed in the English language and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
"BENEFICIARY" means the UTI Beneficiary or any holder of a UTI Certificate
or SUBI Certificate, including any trust formed with respect to a Securitized
Financing but excluding the Titling Trustee, any Trust Agent, or any trustee or
trust agent with respect to a Securitized Financing or UTI Pledge.
"BOOKED RESIDUAL VALUE" means the amount established at the origination of
the lease (based on documentation provided to the Dealers by TMCC) representing
the estimated wholesale market value at the Maturity Date of the related
Contract, each as set forth on the face of such Contract at the time of
origination including, and with respect to a Contract for which the Maturity
Date has been extended by the Servicer in connection with any extension or
deferral, means the value as set forth above reduced by payments in respect of
principal received during the extension period.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other day on
which banking institutions in New York, New York, Chicago, Illinois or Los
Angeles, California are authorized or obligated by law, executive order or
governmental decree to be closed; provided, that, solely for purposes of
identifying any Certificate Payment Date with respect to the making of payments
on the Class A-1, Class A-2 and Class A-3 Certificates in any foreign
jurisdiction by a paying agent located therein, "Business Day" shall also
exclude any day on which banking institutions in such foreign jurisdiction are
authorized or obligated by law, regulation, governmental order or decree to be
closed, whether or not payments are made in any other city on such Certificates
on such date, but such date shall not be used for making any other determination
with respect to the assets of the Trust or the Certificates of any Class.
"CERTIFICATE OF TITLE" means a certificate of title or other evidence of
ownership of a Leased Vehicle issued by the Registrar of Titles in the
respective jurisdiction in which such Leased Vehicle is registered, which
Certificate of Title shall reflect as the owner of such Leased Vehicle "Toyota
Lease Trust", "TMTT, Inc., as Trustee of Toyota Lease Trust" or such other
similar designation as may be acceptable to any relevant Registrar of Titles.
"CERTIFICATE OF TRUST" means the Certificate of Trust for the Titling Trust
required to be filed with the office of the Secretary of State of the State of
Delaware pursuant to Section 3810 of the Delaware Act.
"CHARGED-OFF CONTRACT" means a Contract (a) with respect to which the
related Leased Vehicle has been repossessed and sold or otherwise disposed of or
(b) which has been written off by the Servicer in accordance with its normal
policies for writing off lease contracts other than with respect to
repossession.
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<PAGE>
"CLAIMS" means any losses, liabilities and expenses (including reasonable
attorney's and other professional fees and expenses) incurred in connection with
reasonable collection efforts or the defense of any suit or action.
"CLASS" means all Certificates whose form is identical except for variation
in denomination, principal amount or owner.
"CLEARING AGENCY" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"CLOSING DATE" means, with respect to any Securitized Financing, the date
specified as such in the related Transaction Documents.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLECTION PERIOD" means, with respect to any Distribution Date, the
calendar month preceding such Distribution Date.
"COLLECTIONS" means, with respect to any Collection Period, all net
collections received in respect of the Contracts and Leased Vehicles during such
Collection Period, including Monthly Payments and Payments Ahead that represent
Monthly Payments due during such Collection Period; Prepayments, Advances, Net
Matured Leased Vehicle Proceeds, Net Repossessed Vehicle Proceeds and other Net
Liquidation Proceeds, less (i) amounts representing Payments Ahead with respect
to future Collection Periods (ii) amounts retained by or paid to the Servicer in
respect of outstanding Advances and (iii) Additional Loss Amounts in respect of
such Collection Period.
"COMMISSION" means the Securities and Exchange Commission, and any
successor thereto.
"CONTINGENT AND EXCESS LIABILITY INSURANCE POLICIES" means, collectively,
the contingent liability insurance policies maintained or to be maintained by
TMCC providing coverage for bodily injury and property damage suffered by third
persons caused by the operation of any vehicle that is a Leased Vehicle, and
each of the excess liability insurance policies maintained or to be maintained
by TMCC with third party insurers providing excess insurance coverage as to such
liabilities.
"CONTRACT" means any of the fixed rate retail closed-end lease contracts
(and all proceeds thereof) originated in connection with the lease of the Leased
Vehicles that are or were originated by Dealers pursuant to and in conformity
with Dealer Agreements between such Dealers and the Titling Trust, the rights to
which have been assigned to the Titling Trust, or the Titling Trustee on behalf
of the Titling Trust, in accordance with such Dealer Agreements.
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<PAGE>
"CONTRACT DOCUMENTS" means, with respect to each Contract, (i) the fully
executed Contract, (ii) the related Certificate of Title (or the application
therefor if the Certificate of Title has not been received), (iii) any written
agreements modifying such Contract (including any written extension thereof),
(iv) all related credit applications, factory invoices, Dealer worksheets,
written records of certification of information provided in the credit
application and odometer statements required by applicable law, (v) documents
related to the provision of insurance and (vi) all other documents relating to
such Contract and retained by the Servicer.
"CONTRACT RECORD" means all data maintained by the Servicer (including,
without limitation, computerized records), together with all operating software
and appropriate documentation, relating directly to or maintained in connection
with the servicing of the Contracts.
"CORPORATE TRUST OFFICE" means the office of the Titling Trustee or Trust
Agent, as indicated by the context. As of October 1, 1996, the Corporate Trust
Office is located at 111 East Wacker Drive, Suite 3000, Chicago, Illinois 60601,
Attention: Toyota Lease Trust. After October 1, 1996, Corporate Trust Office
will mean the corporate trust office designated in writing to the Servicer and
to the Beneficiaries by the Titling Trustee, Trust Agent or any successor
thereto, as the case may be.
"CO-TRUSTEE AGREEMENT" means that Co-Trustee Agreement dated as of October
1, 1996, among TMCC, the Titling Trustee, the Trust Agent and Delaware Trust
Capital Management Inc., as Delaware Trustee.
"CREDIT AND COLLECTION POLICY" means those credit and collection policies
and practices of the Servicer, as applied by the Servicer, with respect to the
origination and servicing of Contracts and related Leased Vehicles as they may
be amended, supplemented, or modified by the Servicer from time to time.
"CURRENT CONTRACT" means a Contract that is not a Charged-off Contract, a
Matured Contract, a Liquidated Contract or an Additional Loss Contract.
"DEALER" means a motor vehicle dealer, located in a State permitted by the
Origination Criteria, that has entered into a Dealer Agreement.
"DEALER AGREEMENT" means that certain Retail Motor Vehicle Lease Agreement
substantially in the form to be attached as an exhibit to the UTI Supplement or
in such other form as may be approved from time to time entered into between the
Titling Trust and a Dealer setting forth the respective rights and obligations
of the Titling Trust and the Dealer, acting as an independent contractor, with
respect to the Dealer's entering into Contracts.
"DELAWARE ACT" means the Delaware Business Trust Act 12 Del. Code, Sections
3801 ET SEQ.
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<PAGE>
"DELAWARE TRUSTEE" means any trustee or co-trustee appointed as such by the
Titling Trustee pursuant to a co-trustee agreement for purposes of satisfying
the Delaware Act. Initially, the Titling Trustee will so appoint Delaware Trust
Capital Management, Inc.
"DELAWARE PARTNERSHIP ACTS" means the Delaware Revised Uniform Limited
Partnership Act and the Delaware Uniform Partnership Act, in each case as
amended.
"DETERMINATION DATE" means, with respect to any Distribution Date, the
second Business Day prior to such Distribution Date.
"DISCOUNTED CONTRACT" means any Contract that has a Lease Rate below the
Discount Rate specified in the Transaction Documents with respect to any
Securitized Financing.
"DISCOUNT RATE" means the discount rate specified in the Transaction
Documents with respect to any Securitized Financing.
"DISTRIBUTION DATE" means, with respect to the UTI and a Collection Period,
the twenty-fifth day of the following month, or if that day is not a Business
Day, the next Business Day, beginning with October 25, 1997.
"DTC" means The Depository Trust Company and its successors.
"DUE DATE" with respect to any Contract, means the monthly date specified
in such Contract on which the scheduled Monthly Payment is due.
"ELIGIBLE ACCOUNT" means (i) an account maintained with a federal or state
chartered depository or trust institution, the short-term unsecured debt
obligations of which have the Required Rating, (ii) a segregated trust account
maintained with a federal or state chartered depository or trust institution in
its corporate trust department or (iii) an account otherwise acceptable to each
Rating Agency without reduction or withdrawal of its rating of any related Rated
Certificates, as evidenced by a letter from each Rating Agency.
"ELIGIBLE CONTRACT" with respect to eligibility for origination in the name
of the Titling Trust, means a UTI Eligible Contract, and with respect to
eligibility for inclusion in any SUBI Sub-Trust means a UTI Eligible Contract
that also satisfies the definition of Eligible Contract applicable to such SUBI
Sub-Trust as set forth in the related SUBI Servicing Supplement.
"ELIGIBLE SERVICER" means TMCC or an entity that is servicing a portfolio
of automobile and/or light truck retail installment lease contracts, that is
legally qualified and has the capacity to service the Contracts and that has
demonstrated the ability to service a portfolio of similar lease contracts
professionally and competently in accordance with high standards of skill and
care.
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<PAGE>
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed to refer also to any
successor sections.
"ERISA AFFILIATE" means each person (as defined in Section 3(9) of ERISA)
which, together with the identified person, would be deemed to be a member of
the same "controlled group" within the meaning of Section 414(b), (c), (m) and
(o) of the Code or Section 4001 of ERISA.
"EXCESS FUNDS" means, as of any date, the amount of funds in the Lease
Funding Account or otherwise held by the Servicer or the Titling Trustee in
respect of the UTI in excess of those (i) required to maintain the account to
meet all existing Liabilities of the Titling Trust to be paid out of such
account (after accounting for all transfers to be made from any SUBI Account on
or before such date) and (ii) required to be retained in such account as
reserves for reasonably anticipated Liabilities of the Titling Trust (after
taking into account all transfers to be made to such Lease Funding Account out
of any SUBI Account in respect of that SUBI's proportionate share of such
anticipated Liabilities).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXTENSION FEE" means, with respect to any Contract that has had its
Maturity Date extended as contemplated in the Titling Trust Agreement or any
SUBI Servicing Supplement, any payment required to be made by the Obligor in
connection with such extension.
"FDIC" means the Federal Deposit Insurance Corporation and its successors.
"FINANCIAL INTERMEDIARY" means a financial intermediary, as such term is
defined in Section 8-313(4) of the UCC.
"FIRST BANK" means First Bank National Association, a national banking
association.
"FNMA" means the Federal National Mortgage Association and its successors.
"FUNDING ADVANCE" means the amount of each advance of the face amount or
any portion of a Contract (including with respect to any taxes, fees or charges
payable to the related Dealer or any third party at the time of the funding
thereof) made by the UTI Beneficiary or any agent thereof in connection with the
funding of such Contract that has not previously been reimbursed thereto.
"FUNDING ADVANCE REIMBURSEMENT AMOUNT" means, with respect to any
Distribution Date, the aggregate amount of Funding Advances made during the
related Collection period and not previously reimbursed to the UTI Beneficiary
from Collections on the related Contracts or otherwise.
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<PAGE>
"FUNDING ADVANCE REIMBURSEMENT DATE" means a Distribution Date on which a
Funding Advance Reimbursement Amount is to be made.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
government.
"GRANTOR" means TMCC in its capacity as Grantor.
"INDEPENDENT" with respect to any specified Person means another Person who
(a) is in fact independent of the specified Person and any of its Affiliates;
(b) does not have any direct financial interest or any material indirect
financial interest in the specified Person or any of its Affiliates; and (c) is
not connected with the specified Person or any of its Affiliates as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions. Whenever it is provided in the Titling Trust Agreement or
any other agreement adopting this definition that any Independent Person's
opinion or certificate shall be furnished, such Independent Person shall be
deemed to be Independent to the satisfaction of the recipient thereof if such
opinion or certificate shall state that the signer has read this definition and
that the signer is in fact Independent within the meaning hereof.
"INDEPENDENT ACCOUNTANT" means an Accountant, who may also be the
Accountant who audits the books of TMCC or any of its Affiliates, who is
Independent with respect to TMCC and its Affiliates as contemplated by Rule 101
of the Code of Professional Conduct of the American Institute of Certified
Public Accountants.
"INDEPENDENT DIRECTOR" means a director of the Transferor who shall at no
time be (i) a director, officer, employee or former employee of the Transferor
or any Affiliate thereof, (ii) a natural person related to any director,
officer, employee or former employee of the Transferor or any Affiliate thereof,
(iii) a holder (directly or indirectly) of any voting securities of the
Transferor or any Affiliate thereof, or (iv) a natural person related to a
holder (directly or indirectly) of any voting securities of the Transferor or
any Affiliate thereof.
"INSOLVENCY EVENT" means, with respect to any Person:
(i) Such Person shall file a petition commencing a voluntary case under
any chapter of the Federal bankruptcy laws; or such Person shall file a petition
or answer or consent seeking reorganization, arrangement, adjustment, or
composition under any other similar applicable Federal law, or shall consent to
the filing of any such petition, answer, or consent; or such Person shall
appoint, or consent to the appointment of a custodian, receiver, liquidator,
trustee, assignee, sequestrator or other similar official in bankruptcy or
insolvency of it or of any substantial part of its property, or shall make any
assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due; or
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<PAGE>
(ii) any order for relief against such Person shall have been entered by
a court having jurisdiction in the premises under any chapter of the Federal
bankruptcy laws; or a decree or order by a court having jurisdiction in the
premises shall have been entered approving as properly filed a petition seeking
reorganization, arrangement, adjustment, or composition of such Person under any
other similar applicable Federal Law; or a decree or order of a court having
jurisdiction in the premises for the appointment of a custodian, receiver,
liquidator, trustee, assignee, sequestrator or other similar official in
bankruptcy or insolvency of such Person or of any substantial part of its
property, or for the winding up or liquidation of its affairs, shall have been
entered.
"INSURANCE COSTS" means, with respect to any Insurance Policy, the premiums
therefor, any deductibles and any coinsurance payments.
"INSURANCE POLICIES" means any residual value insurance policy and any
policy of comprehensive, collision, public liability, physical damage, personal
liability, credit accident or health, credit life or unemployment insurance
maintained by the Grantor, any Obligor under any Contract or any Affiliate of
any such Person to the extent that any such policy covers or applies to any
Contract, Leased Vehicle or the ability of any Obligor under any Contract to
make required payments with respect to a Contract or the related Leased Vehicle;
provided that, with respect to any SUBI, "Insurance Policies" means only such of
the foregoing policies as relate to the related SUBI Portfolio and, in the case
of such insurance policies that relate to Contracts or related assets in more
than one SUBI Portfolio, such policies only insofar as they, or the proceeds
thereof, relate to Contracts or related assets included in the related SUBI
Portfolio.
"INSURANCE PROCEEDS" with respect to any Collection Period, means
recoveries pursuant to each Insurance Policy obtained and maintained by the
Obligor pursuant to a Contract, or by the Titling Trust or the Servicer with
respect to such Contract or the related Leased Vehicle.
"INTEREST COLLECTIONS" means, with respect to any Collection Period, an
amount equal to the amount by which Collections exceed Principal Collections
with respect to such Collection Period.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended.
"LEASE FUNDING ACCOUNT" means the Lease Funding Account established and
maintained in accordance with Section 7.01(a) of the Titling Trust Agreement.
"LEASED VEHICLE" means the new or used (including any dealer demonstrator
vehicle or manufacturers' program vehicle) automobile, minivan, sports utility
vehicle or light duty truck, together with all accessories, additions and parts
constituting a part thereof and all accessions thereto, which is the subject of
a Contract.
"LEASE RATE" means the imputed interest rate set forth in each Contract on
the basis of which the lessor identifies the portions of each Monthly Payment
that constitute principal or interest, respectively.
-8-
<PAGE>
"LIABILITIES" means all losses, liabilities, claims, damages, expenses
(including related reasonable legal and other professional fees and expenses),
taxes, actions and suits of any kind.
"LIEN" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind other than tax liens, mechanics' liens and any liens
that attach to property, as the context may require, by operation of law.
"LIQUIDATED CONTRACT" means a Contract that has been the subject of a
Prepayment in full or otherwise has been paid in full or, in the case of a
Charged-off Contract, a Contract as to which the Servicer has determined that
the final amounts in respect thereof have been paid.
"LIQUIDATION EXPENSES" means reasonable out-of-pocket expenses (including
related attorneys' fees and expenses) incurred by the Servicer in connection
with the attempted realization of the full amounts due or to become due under
any Contract, including expenses incurred in connection with the repossession of
the related Leased Vehicle, the sale of such Leased Vehicle, whether upon its
repossession or return (if such Contract is a Matured Contract), any collection
effort (whether or not resulting in a lawsuit against the Obligor under such
Contract) or any claim under an Insurance Policy.
"LIQUIDATION PROCEEDS" means gross amounts received by the Servicer or the
Titling Trustee, on behalf of the Titling Trust (before reimbursement for
Liquidation Expenses), in connection with the realization of the full amounts
due or to become due under any Contract, whether from the sale or other
disposition of the related Leased Vehicle (without regard to whether such
proceeds exceed the Booked Residual Value), the proceeds of any collection
effort (whether or not resulting in a lawsuit against the Obligor under such
Contract), the proceeds of recourse payments by Dealers, receipt of Insurance
Proceeds, or collection of amounts due hereunder in respect of such Contract
(including the application of Security Deposits) or otherwise.
"MATURED CONTRACT" means any Contract that has reached its Maturity Date.
"MATURED VEHICLE", as of any date, means any Leased Vehicle, the related
Contract of which has reached its Maturity Date, and which Leased Vehicle has
been returned to the Servicer on behalf of the Titling Trust (or the Titling
Trustee on behalf of the Titling Trust), regardless of the status of the sale or
disposition of such Leased Vehicle as of the date of such return.
"MATURITY DATE" means, with respect to any Contract, the date on which the
last scheduled Monthly Payment shall be due and payable, as such date may be
extended in accordance with the provisions of the UTI Supplement and any
applicable SUBI Supplement or SUBI Servicing Supplement.
"MONTHLY PAYMENT" means, with respect to any Contract, the amount of each
fixed monthly payment payable by the related Obligor in accordance with the
terms thereof, net of any portion of such monthly payment that represents
collections allocable to payments to be made by such Obligor
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for sales taxes or similar items, and excluding any portion thereof relating to
the payment of insurance premiums (unless such premiums are included in the
related capitalized cost), late payment charges, extension fees or other similar
items.
"MONTHLY REMITTANCE CONDITIONS" means that (i) TMCC is the Servicer, (ii)
either (a) TMCC's short-term unsecured debt is rated at least P-1 by Moody's and
A-1 by Standard & Poor's (so long as Moody's and Standard & Poor's are Rating
Agencies), or (b) certain arrangements are made that have been approved in
writing by each Rating Agency that has rated any class of securities issued in
connection with a Securitized Financing at the request of the Grantor and (iii)
no Early Amortization Event or Event of Servicing Termination as defined in any
SUBI Supplement shall have occurred and be continuing.
"MOODY'S" means Moody's Investors Service, Inc., and its successors.
"OBLIGEE" means each Person who is the lessor under a Contract or the
assignee thereof, including the Titling Trust or the Titling Trustee on behalf
of the Titling Trust.
"OBLIGOR" means the Person who is the lessee under a Contract.
"OFFICER'S CERTIFICATE" means, with respect to any Person, a certificate
signed by the President, any Vice President, the Chief Financial Officer, the
Chief Accounting Officer, the Treasurer or any Assistant Treasurer, the
Secretary or any Assistant Secretary thereof.
"OPINION OF COUNSEL" means, with respect to any Person, a written opinion
of counsel which counsel shall be reasonably acceptable to the indicated
recipient; provided that, in the case of opinions to be delivered by TMCC or
TLI, such counsel may be an employee of or outside counsel to the Transferor or
the Servicer.
"ORIGINATION CRITERIA" means, with respect to any Contract, TMCC's written
underwriting criteria in effect as of the date of origination of any specific
Contract, and as the same may be amended, supplemented or modified from time to
time by TMCC in the ordinary course of business.
"OTHER PROCEEDS" means monies arising from the sale, exchange, lease,
collection or other disposition of lease contracts and related leased vehicles
or other receivables that are not Titling Trust Assets but as to which the
Servicer is acting as servicer.
"OUTSTANDING PRINCIPAL BALANCE" means, with respect to any Contract as of
any date, the amount to which the capitalized cost of a Contract has been
amortized at any point in time, which will be an amount equal to (i) the sum of
all Monthly Payments remaining to be made, including overdue Monthly Payments
(provided, however, that Payments Ahead received but not yet applied are deemed
to be Monthly Payments remaining to be made), less any unearned finance or other
similar unearned lease charges relating to the period beginning after the next
succeeding Payment Date on such Contract (determined on a constant yield basis)
in accordance with the Servicer's usual
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<PAGE>
practices, plus (ii) the Booked Residual Value of the related Leased Vehicle.
The term "principal amount" and "principal balance" as used in relation to any
Contract or Contracts shall refer, as of such date of determination, to the
Outstanding Principal Balance of such Contract or Contracts computed as of such
time.
"PAYMENT AHEAD" means any payment of one or more Monthly Payments (not
constituting a Prepayment) remitted by an Obligor with respect to a Contract in
excess of the Monthly Payment due with respect to such Contract, which sums the
Obligor has instructed the Servicer to hold and apply to Monthly Payments due in
one or more immediately subsequent calendar months.
"PAYMENT DATE" means, as to each Contract, the date each month therein set
forth as the date Monthly Payments are due.
"PERMITTED INVESTMENTS" means any one or more of the following instruments,
obligations or securities, in each case subject to any further criteria
specified in the related SUBI Supplement:
(a) obligations of, and obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any agency thereof,
provided such obligations are backed by the full faith and credit of the United
States;
(b) general obligations of or obligations guaranteed by FNMA or any
state of the United States, the District of Columbia or the Commonwealth of
Puerto Rico then rated the highest available credit rating of each Rating Agency
for such obligations;
(c) certificates of deposit issued by any depository institution or
trust company (including any Securitization Trustee) incorporated under the laws
of the United States or of any state thereof, the District of Columbia or the
Commonwealth of Puerto Rico and subject to supervision and examination by
banking authorities of one or more of such jurisdictions, provided that the
short-term unsecured debt obligations of such depository institution or trust
company are then rated the highest available rating of each Rating Agency for
such obligations;
(d) certificates of deposit, demand or time deposits of, bankers'
acceptances issued by, or federal funds sold by, any depository institution or
trust company (including any Securitization Trustee) incorporated under the laws
of the United States or any State and subject to supervision and examination by
federal and/or State banking authorities and the deposits of which are fully
insured by the Federal Deposit Insurance Corporation, so long as at the time of
such investment or contractual commitment providing for such investment either
such depository institution or trust company has the Required Rating (or if such
investment will mature after more than one month, the long-term, unsecured debt
of the issuer has the highest available rating from each Rating Agency) or such
Securitization Trustee shall have received a letter from each Rating Agency to
the effect that such investment would not result in the qualification,
downgrading or withdrawal of the ratings then assigned to any Rated
Certificates;
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(e) certificates of deposit issued by any bank, trust company, savings
bank or other savings institution and fully insured by the FDIC having the
Required Rating (or if such investment will mature after more than one month,
the long-term, unsecured debt of the issuer has the highest available rating
from each Rating Agency);
(f) repurchase obligations held by any Securitization Trustee that are
acceptable to the Securitization Trustee with respect to any security described
in clauses (a), (b) or (g) hereof or any other security issued or guaranteed by
any other agency or instrumentality of the United States, in either case entered
into with a federal agency or a depository institution or trust company (acting
as principal) described in clause (d) above (including any Securitization
Trustee); PROVIDED, HOWEVER, that repurchase obligations entered into with any
particular depository institution or trust company (including such
Securitization Trustee) will not be Permitted Investments to the extent that the
aggregate principal amount of such repurchase obligations with such depository
institution or trust company held by such Securitization Trustee on behalf of
the related Securitization Trust or of all of the Titling Trust Assets shall
exceed 10% of either the Aggregate Net Investment Value or the aggregate unpaid
principal balance or face amount, as the case may be, of all Permitted
Investments so held thereby;
(g) interests in any open-end or closed-end management type investment
company or investment trust (i) registered under the Investment Company Act, the
portfolio of which is limited to the obligations of, or guaranteed by, the
United States and to agreements to repurchase such obligations, which
agreements, with respect to principal and interest, are at least 100%
collateralized by such obligations marked to market on a daily basis and the
investment company or investment trust shall take delivery of such obligations
either directly or through an independent custodian designated in accordance
with the Investment Company Act and (ii) acceptable to each Rating Agency (as
approved in writing by each Rating Agency) as collateral for securities having
ratings equivalent to the ratings of the Rated Certificates on the Closing Date;
(h) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any State so
long as at the time of such investment or contractual commitment providing for
such investment (i) the long-term, unsecured debt of such corporation has the
highest available rating from each Rating Agency, (ii) such corporation is TMCC
and TMCC's long term debt obligations shall at such time have a rating of at
least Aa3 from Moody's, and TMCC's short term debt obligations shall at such
time have a rating of at least A-1+ from Standard & Poor's and at least P-1 from
Moody's or (iii) a Securitization Trustee shall have received a letter from each
Rating Agency to the effect that such investment would not result in the
qualification, downgrading or withdrawal of the ratings then assigned to any
Rated Certificates or commercial paper or other short-term debt having the
Required Rating;
(i) money market funds so long as such funds are rated Aaa by Moody's
(so long as Moody's is a Rating Agency) and AAAm by Standard & Poor's (so long
as Standard & Poor's is a Rating Agency), and any other fund for which a
Securitization Trustee or an Affiliate of such Securitization Trustee serves as
an investment advisor, administrator, shareholder servicing agent
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and/or custodian or subcustodian, provided that any shares of such funds have a
credit rating of at least Aaa by Moody's (so long as Moody's is a Rating Agency)
and AAAm by Standard & Poor's (so long as Standard & Poor's is a Rating Agency)
and notwithstanding that (i) such Trustee or Affiliate charges and collects fees
and expenses from such funds for services rendered, (ii) such Trustee charges
and collects fees and expenses for services rendered pursuant to the related
Securitization Trust Agreement or under the Trust Agency Agreement and (iii)
services performed for such funds and pursuant to either such Agreement may
converge at any time. Each of the Transferor and the Servicer hereby
specifically authorizes the Securitization Trustee or Titling Trustee or
Affiliate thereof to charge and collect all fees and expenses from such funds
for services rendered to such funds, in addition to any fees and expenses such
Trustee may charge and collect for services rendered pursuant to either such
Agreement; and
(j) such other investments acceptable to each Rating Agency (as approved
in writing by each Rating Agency) as will not result in the qualification,
downgrading or withdrawal of the ratings then assigned to any Rated Certificates
by such Rating Agency;
provided that each of the foregoing investments shall mature no later than the
day specified in the related SUBI Supplement, and shall be required to be held
to such maturity.
None of the foregoing will be considered a Permitted Investment if:
(i) it constitutes a certificated security, bankers' acceptance,
commercial paper, negotiable certificate of deposit or other
obligation that constitutes an "instrument" within the meaning of
Section 9-105(1)(i) of the UCC and is susceptible of physical
delivery unless it is transferred to the Titling Trustee, a
Securitization Trustee or its Financial Intermediary in
accordance with Sections 8-313(1)(a), 8-313(1)(d)(i) or
8-313(1)(g) of the UCC, and such trustee obtains evidence that
any such property that is in registrable form has been registered
in its name or the name of its Financial Intermediary, its
custodian or its nominee;
(ii) it constitutes a book-entry security held through the Federal
Reserve System pursuant to federal book-entry regulations,
unless, in accordance with applicable law, (A) a book-entry
registration thereof is made to an appropriate book-entry account
maintained with a Federal Reserve Bank by the Titling Trustee, a
Securitization Trustee or by a custodian therefor, (B) a deposit
advice or other written confirmation of such book-entry
registration is issued to such trustee or custodian, (C) any
such custodian makes entries in its books and records identifying
that such book-entry security is held through the Federal Reserve
System pursuant to federal book-entry regulations and belongs to
such trustee and indicating that such custodian holds such
Permitted Investment solely as agent for such Trustee, (D) such
trustee makes entries in its books and records establishing that
it holds such security solely as Titling Trustee or
Securitization Trustee for the Titling Trust or the related
Securitization Trust, as the case may be, and (E) any additional
or alternative procedures as may
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hereafter become necessary to effect complete transfer of ownership
thereof to such trustee are satisfied, consistent with changes in
applicable law or regulations or the interpretation thereof; or
(iii) it constitutes an uncertificated security under Article 8 of the
UCC that is not governed by clause (ii) above, unless the
transfer to, and ownership thereof by, the Titling Trustee or
Securitization Trustee, its Financial Intermediary, its custodian
or its nominee by the issuer of such security is registered by
the issuer thereof.
Notwithstanding anything to the contrary contained in this definition, no
Permitted Investment may be purchased at a premium and no Permitted Investment
shall be an interest only instrument. Any of the foregoing which constitutes an
uncertificated security shall not be considered a Permitted Investment if: (i) a
notation of the right of the issuer thereof to a lien thereon is contained in
the initial transaction statement therefor sent to the Titling Trustee; (ii) the
Titling Trustee has notice or actual knowledge of (A) any restriction on the
transfer thereof imposed by the issuer thereof, or (B) any adverse claim, or a
notation of any such restriction or of any specific adverse claim as to which
the issuer has a duty under the law of the state in which the Corporate Trust
Office is located at the time of registration is contained in the initial
transaction statement therefor sent to the Titling Trustee; or (iii) to the
Titling Trustee's actual knowledge, a creditor has served legal process upon the
issuer thereof at its chief executive office in the United States which legal
process attempts to place a Lien thereon prior to the registration thereof in
the name of the Titling Trustee.
Moreover, none of the foregoing (except long term debt obligations of TMCC
described in clause (h) above) will be a Permitted Investment with respect to
amounts on deposit in the Certificateholders' Account unless by its own terms it
matures on or before the Deposit Date succeeding the date of investment or it
includes a demand, put or similar feature such that the Securitization Trustee
(or the Servicer on behalf of the Securitization Trustee) is able to cause such
investment to mature on or before such Deposit Date.
For purposes of this definition, any reference to the highest available
credit rating of an obligation shall mean the highest available credit rating
for such obligation (excluding any "+" signs associated with such rating), or
such lower credit rating (as approved in writing by each Rating Agency) as will
not result in the qualification, downgrading or withdrawal of the rating then
assigned to any Rated Certificates by such Rating Agency. Also for purposes of
this definition, any reference to a Rating Agency refers only to a Rating Agency
that has, at the request of the Grantor, rated securities issued in the specific
securitized financing as to which this definition is being applied.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated association, Governmental Authority or any other entity.
"PLAN" means an "employee benefit plan," as such term is defined in Section
3(3) of ERISA.
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"PREPAYMENT" means, with respect to any Contract other than a Charged-off
Contract, payment to the Servicer of 100% of the Discounted Principal Balance of
such Contract, including an amount equal to the Booked Residual Value of the
related Leased Vehicle.
"PRINCIPAL COLLECTIONS" means, with respect to any Collection Period, all
Collections allocable to the principal component of any Contract, discounted to
the extent such Contract is a Discounted Contract.
"RATED CERTIFICATES" means the securities of any class or series issued in
a Securitized Financing that has been rated by a Rating Agency at the request of
the Grantor.
"RATING AGENCY" means each nationally recognized statistical rating
organization that rates a security in a Securitized Financing at the request of
the Grantor as of the related Closing Date and continues to do so.
"REGISTRAR OF TITLES" means any applicable department, agency or official
in a State responsible for accepting applications for, and maintaining records
regarding, Certificates of Title and liens thereon.
"REQUIRED RATING" means a rating on commercial paper or other short term
unsecured debt obligations of Prime-1 by Moody's so long as Moody's is a Rating
Agency and A-1+ by Standard & Poor's so long as Standard & Poor's is a Rating
Agency; and any requirement that deposits or debt obligations have the "Required
Rating" shall mean that such deposits or debt obligations have the foregoing
required ratings from Moody's and Standard & Poor's.
"RESIDUAL UTI CERTIFICATE" has the meaning set forth in Section 11.02 of
the UTI Supplement.
"RESIDUAL UTI UNIT" has the meaning set forth in Section 11.01 of the UTI
Supplement.
"RESIDUAL VALUE" means the actual Liquidation Proceeds, net of Liquidation
Expenses, received with respect to the disposition of any Leased Vehicle,
whether at maturity of the related Contract or otherwise, and whether or not
such Residual Value exceeds the Booked Residual Value.
"RESIDUAL VALUE INSURANCE POLICY" means Residual Value Insurance Policy
number RVI 97001 issued effective October 1, 1996 by Toyota Motor Insurance
Corporation of Vermont, in favor of the Titling Trust and naming TMCC as
additional insured and reinsured by RVI Guaranty Co., Ltd.
"RESPONSIBLE OFFICER" means an officer of the Titling Trustee or
Securitization Trustee assigned to the relevant Corporate Trust Office,
including the President, any Vice President, any trust officer, the corporate
Secretary and any assistant corporate Secretary or any other officer performing
functions similar to those performed by the persons who at the time shall be
such officers, and any
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other officer thereof to whom a matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIZATION TRUSTEE" means any trustee appointed as such under the
Transaction Documents with respect to any Securitized Financing.
"SECURITIZED FINANCING" means (i) any financing transaction of any sort
undertaken by the related Beneficiary based on or secured by, directly or
indirectly, Titling Trust Assets, the UTI or any UTI Unit, any SUBI or any
interest in any of the foregoing, (ii) any sale by a Beneficiary of any interest
in one or more SUBIs or (iii) any other asset securitization, secured loan or
similar transaction involving Titling Trust Assets or any beneficial interest
therein or in the Titling Trust.
"SECURITY DEPOSIT" means the security deposit, reconditioning reserve or
similar deposit paid by an Obligor at the time of origination of the related
Contract; provided that the Titling Trust Assets shall include such deposits
only to the extent actually applied to cover excess wear and tear charges or may
otherwise lawfully be retained by the Titling Trust as lessor or its agents in
respect of fees, charges or reimbursable advances, payments or expenses thereby
under the related Contract.
"SERVICER" means TMCC, in its capacity as servicer under the Titling Trust
Agreement, or any successor to TMCC in such capacity.
"SERVICER EXPENSES" means all reasonable amounts expended by the Servicer
in connection with its performance of its duties under the Titling Trust
Agreement, including those incurred in connection with the preparation,
execution and delivery of all legal documentation relating to the formation of
the Titling Trust and the servicing of the UTI Assets prior to the creation of
the first SUBI, the making of any requisite license or other applications,
filings and related filing fees in connection with the commencement of
origination of leases and the recordation of related certificates of title in
the name of the Titling Trust and the perfection of security interests therein
or the registration of any offering of securities in any Securitized Financing,
the costs and expenses of preparing and delivering servicing, tax and other
reports as set forth in the Titling Trust Agreement and the costs and expenses
of providing any monitoring, billing and collection services with respect
thereto, in each case including any reasonable attorneys' fees and expenses, and
in each case excluding any costs and expenses to be paid out of the Servicing
Fee specified in any supplement to the Titling Trust Agreement.
"SERVICER REIMBURSEMENT" means the amount of any required reimbursement to
the Servicer of Servicer Expenses on a Closing Date or any other date (whether a
Distribution Date or otherwise) specified in the Transaction Documents with
respect to a Securitized Financing.
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"SERVICER'S CERTIFICATE" means a certificate of an officer or other
authorized signatory of the Servicer completed and executed pursuant to Section
5.01(b) of the related SUBI Servicing Supplement.
"SERVICING FEE" means (a) prior to the creation of the first SUBI, zero
and (b) after the creation of the first SUBI, the sum of each SUBI Servicing Fee
specified in a SUBI Supplement plus during any UTI Collection Period for which
TMCC is the Servicer, 1.00% of the outstanding balances of the Contracts in the
UTI Portfolio.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a division of
The McGraw Hill Companies, Incorporated, and its successors.
"STATE" means any state of the United States, the District of Columbia and
the Commonwealth of Puerto Rico in which, pursuant to the Origination Criteria,
a UTI Eligible Contract may be originated.
"SUBI" means any "special unit of beneficial interest" in the Titling Trust
comprised of a beneficial interest in a SUBI Sub-Trust.
"SUBI ACCOUNT" means, with respect to a SUBI, the SUBI Collection Account
or the SUBI Lease Funding Account.
"SUBI ASSETS" means, with respect to any SUBI, those Titling Trust Assets
that are identified as relating to and allocated to such SUBI by the Titling
Trustee upon the written direction of the UTI Beneficiary pursuant to the
Titling Trust Agreement and related SUBI Supplement.
"SUBI BENEFICIARY" means any Beneficiary that is a Beneficiary because it
is the holder or pledgee of a SUBI Certificate.
"SUBI CERTIFICATE" means, with respect to a SUBI, each of the certificates
evidencing such SUBI, substantially in the form included as an exhibit to each
SUBI Supplement, executed and delivered pursuant to the related SUBI Supplement.
"SUBI COLLECTION ACCOUNT" means, with respect to a SUBI, any account
denominated as such that is established and maintained in accordance with the
related SUBI Supplement and SUBI Servicing Supplement.
"SUBI COLLECTION PERIOD" means, with respect to any SUBI, the period
identified as the "Collection Period" in the related Transaction Documents.
"SUBI LEASE FUNDING ACCOUNT" means, with respect to a SUBI, any account
denominated as such that is established and maintained in accordance with the
related SUBI Supplement and SUBI Servicing Supplement.
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"SUBI PORTFOLIO" means, with respect to any SUBI, the related Contracts and
Leased Vehicles comprising the related SUBI Assets.
"SUBI SERVICING SUPPLEMENT" means any agreement supplementing the servicing
provisions of the Titling Trust Agreement that is executed by TMCC, the Titling
Trustee and one or more other parties in connection with a Securitized
Financing.
"SUBI SUB-TRUST" means a separate Sub-Trust of the Titling Trust (other
than the UTI Sub-Trust) that is established at the direction of the UTI
Beneficiary on the books and records of the Titling Trust by the Titling Trustee
and that is accounted for separately within the Titling Trust. The Titling
Trustee shall from time to time, as directed in writing by the UTI Beneficiary,
and subject to Section 3.01(d) of the Titling Trust Agreement, identify or cause
to be identified on the books and records of the Titling Trust one or more
separate Sub-Trusts to be accounted for separately within the Titling Trust
(each, a "SUBI Sub-Trust") and identify and allocate, or cause to be identified
and allocated, to such SUBI Sub-Trust on such books and records certain Titling
Trust Assets that are not then allocated to another SUBI Sub-Trust. Upon such
allocation, such related SUBI Assets shall no longer be assets of, or allocated
to, the UTI (unless and until specifically reallocated to the UTI from that SUBI
in accordance with the related SUBI Supplement). Each SUBI shall constitute a
separate series of the Titling Trust pursuant to Section 3806(b)(2) of the
Delaware Act and shall represent the beneficial interest in such SUBI and the
SUBI Assets allocated thereto from time to time. Each SUBI shall be represented
by one or more separate SUBI Certificates issued pursuant to the related SUBI
Supplement. The Titling Trustee shall issue each SUBI Certificate to or upon
the order of the UTI Beneficiary.
"SUBI SUPPLEMENT" means any of the one or more supplements to the Titling
Trust Agreement, substantially in the form attached thereto as an exhibit, the
execution and delivery of which by the UTI Beneficiary and the Titling Trustee
in accordance with Section 3.01(c) of the Titling Trust Agreement will effect
the creation of a SUBI.
"SUB-TRUST" means any of the sub-trusts of the Titling Trust established by
the Titling Trustee as directed by the UTI Beneficiary from time to time, and to
which the Titling Trustee will allocate Titling Trust Assets identified by the
UTI Beneficiary, having the name and beneficiaries designated by the UTI
Beneficiary and being a separate series of the Titling Trust pursuant to Section
3806(b)(2) of the Delaware Act.
"TITLE DOCUMENTS" with respect to any Leased Vehicle means the related
Certificate of Title and all related or ancillary documents or instruments
necessary for the recordation or transfer of title in each relevant
jurisdiction.
"TITLING TRUST" means Toyota Lease Trust, a Delaware business trust, formed
pursuant to the Titling Trust Agreement.
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"TITLING TRUST AGREEMENT" means the Trust and Servicing Agreement dated as
of October 1, 1996, among TMCC, TMTT, Inc., as Titling Trustee, and, for certain
limited purposes, First Bank, as Trust Agent, as amended and restated by the
Amended and Restated Trust and Servicing Agreement also dated as of October 1,
1996 among TMCC, TMTT, Inc., as Titling Trustee, and, for certain limited
purposes, First Bank, as Trust Agent.
"TITLING TRUST ASSETS" means: (i) any capital contributed by the Grantor;
(ii) the Contracts and all proceeds thereof; (iii) the Leased Vehicles and all
proceeds thereof, including each Certificate of Title and the Residual Value of
each Leased Vehicle, whether realized through the exercise by Obligors of
purchase options under the Contracts, the proceeds of sale of the Leased
Vehicles to Dealers or third parties or through payments received from any other
Person (directly or indirectly) under any related Insurance Policy (to the
extent not applied to repair or otherwise paid to a third Person or Governmental
Authority by the Servicer as required by law or pursuant to its normal
servicing practices) or as a subsidy or other funding of any modification of the
related Residual Value; (iv) all of the Titling Trust's rights with respect to
any Contract or Leased Vehicle, including the right to enforce and to proceeds
arising from all Dealer repurchase obligations arising under Dealer Agreements;
(v) all of TMCC's rights (but not its obligations) with respect to any Contract
or Leased Vehicle, including the right to enforce and to proceeds arising from
all Dealer repurchase obligations arising under Dealer Agreements; (vi) any
Insurance Policy and rights thereunder or proceeds therefrom relating to any of
the Contracts, Leased Vehicles or payments of the related Obligors with respect
thereto; (vii) any portion of any Security Deposit actually and properly applied
by the Servicer against amounts due under the related Contract, to the extent
not applied to making repairs to the related Leased Vehicle or paid to a third
party or Governmental Authority in accordance with the Servicer's normal
servicing practices; and (viii) all proceeds of any of the foregoing.
"TITLING TRUSTEE" means TMTT, Inc., in its capacity as such under the
Titling Trust Agreement, and any successor thereto in such capacity appointed
pursuant to the Titling Trust Agreement.
"TITLING TRUSTEE ACCOUNTS" means any of the separate UTI Collection
Account, Lease Funding Account, SUBI Collection Account and/or SUBI Lease
Funding Account established by the Titling Trustee with respect to the UTI or
the related SUBI as described in the Titling Trust Agreement and the related
SUBI Supplement and SUBI Servicing Supplement. Each such account maintained
with respect to Rated Certificates shall be an Eligible Account.
"TITLING TRUSTEE STOCK" means the issued and outstanding capital stock of
the Titling Trustee, together with any additional capital stock of the Titling
Trustee that may be issued from time to time.
"TITLING TRUST EXPENSES" means the aggregate of the Titling Trustee's
compensation and other Administrative Expenses with respect to the Titling
Trust, including those due under Section 6.13 of the Titling Trust Agreement.
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"TLI" means Toyota Leasing, Inc. and its successors.
"TMCC" means Toyota Motor Credit Corporation, a California corporation, its
successors and assigns.
"TMS" means Toyota Motor Sales U.S.A., Inc., a California corporation, its
successors and assigns.
"TRANSACTION DOCUMENTS" means and includes the Titling Trust Agreement, the
UTI Supplement and, with respect to any Securitized Financing involving the
creation of a SUBI, the related SUBI Supplement, SUBI Servicing Supplement, SUBI
Certificate(s), any agreement transferring ownership or other interests in the
related SUBI and SUBI Certificate, the related Securitization Trust Agreement,
indenture, trust agreement or similar instrument governing the securitization of
such SUBI and any securities offered or sold that are secured by interests in
the related SUBI, and any other documents ancillary thereto, in each case as the
same may be amended, supplemented or modified from time to time but only to the
extent that any such amendment, supplement or modification relates to such SUBI.
"TRANSFEROR" means TLI in its capacity as transferor under any
Securitization Trust Agreement and each other related Transaction Document.
"TRUST AGENCY AGREEMENT" means any of the one or more agency agreements
entered into by the Titling Trustee in furtherance of its execution of any of
the trusts or powers under the Titling Trust Agreement or performance of any
duties under the Titling Trust Agreement either directly or by or through agents
or attorneys or one or more custodians as set forth in the Titling Trust
Agreement. In addition, with respect to any Securitization Trustee, Trust
Agency Agreement means any of the one or more agency agreements entered into by
such Securitization Trustee in furtherance of its execution of any of the trusts
or powers under the related Securitization Trust Agreement or performance of any
duties under such Securitization Trust Agreement either directly or by or
through agents or attorneys or one or more custodians as set forth in such
Securitization Trust Agreement.
"TRUST AGENT" means any of the one or more Persons, including any Affiliate
of the Titling Trustee or any Securitization Trustee, engaged by the Titling
Trustee or such Securitization Trustee pursuant to a Trust Agency Agreement.
"TRUST ASSET TRANSFER" means the allocation to a SUBI Sub-Trust of Titling
Trust Assets not then allocated to any other SUBI Sub-Trust pursuant to Section
3.01(c) of the Titling Trust Agreement.
"TRUST STATES" initially means California, Florida, Michigan, Ohio and
Pennsylvania and after the date of this Agreement, means those States and such
other States as designated in writing from time to time to the Titling Trustee
by the Grantor in which Dealers are regularly originating Contracts and
assigning them to the Titling Trust as contemplated by the Titling Trust
Agreement.
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"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
"UNITED STATES" means the United States of America, its territories and
possessions and areas subject to its jurisdiction.
"UNDIVIDED TRUST INTEREST" or "UTI" means the exclusive, undivided
beneficial interest in all Titling Trust Assets (including Contracts and Leased
Vehicles), other than SUBI Assets, held by the UTI Beneficiary.
"UNDIVIDED TRUST INTEREST CERTIFICATE" or "UTI CERTIFICATE" means the one
or more trust certificates (together with any replacements thereof) issued by
the Titling Trust at the direction of the UTI Beneficiary substantially in the
form attached as an exhibit to the form of UTI Supplement.
"UTI ACCOUNT" means any of the separate UTI Collection Accounts and/or
Lease Funding Account established by the Titling Trustee with respect to the
UTI pursuant to Section 12.01 of the UTI Supplement.
"UTI ASSETS" means all Titling Trust Assets that have not been allocated to
a SUBI Sub-Trust.
"UTI BENEFICIARY" means TMCC, in its capacity as the initial beneficiary of
the Titling Trust on the date of the UTI Supplement, and its successors and
assigns (exclusive of any pledgee of a UTI Pledge).
"UTI COLLECTION ACCOUNT" means the separate account established by the
Titling Trustee with respect to the UTI pursuant to Section 12.01 of the UTI
Supplement.
"UTI COLLECTION PERIOD" with respect to any Distribution Date, means the
preceding calendar month.
"UTI CONTRACT" means any Contract that is an asset of the UTI Sub-Trust.
"UTI ELIGIBLE CONTRACT" means a Contract as to which the following criteria
are satisfied as of the date the Contract is originated and assigned by the
relevant Dealer to the Titling Trust:
(a) that was originated (i) by a Dealer, (ii) in the ordinary
course of its retail business, (iii) pursuant to a Dealer Agreement, and
(iv) in compliance with the customary underwriting standards employed by
the Grantor in originating leases for its own account;
(b) which Contract and the related Leased Vehicle are free of
all liens and other interests (including tax liens, mechanics liens and
liens that arise by operation of law, but excluding any Administrative
Lien);
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(c) that was originated in compliance with, and complies with,
all material applicable legal requirements, including, to the extent
applicable, the Federal Consumer Credit Protection Act (including the
Consumer Leasing Act), as amended, Regulation M of the Board of Governors
of the Federal Reserve System, as amended, all State leasing and consumer
protection laws and all State and federal usury, fair credit billing, fair
credit reporting, equal credit opportunity, and fair debt collection
practices laws;
(d) as to which all material consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained effected or given by the originator of
such Contract in connection with (i) the origination of such Contract, (ii)
the execution, delivery and performance by such originator of such Contract
and (iii) the acquisition by the Titling Trust of such Contract and the
related Leased Vehicle have been duly obtained, effected or given and were
in full force and effect as of such date of creation or acquisition;
(e) that is the legal, valid and binding full-recourse payment
obligation of the Obligor thereunder, enforceable against such Obligor in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws, now or hereafter in effect, affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity);
(f) that, according to the records of the Grantor, is not
subject to any right of rescission, setoff, counterclaim or any other
defense (including defenses arising out of violations of usury laws) of the
Obligor thereunder to payment of the amounts due thereunder, and no such
right of rescission, setoff, counterclaim or other defense has been
asserted or threatened;
(g) as to which each of the originating Dealer, the Servicer and
the Titling Trust has satisfied all obligations required to be fulfilled on
its part;
(h) that is payable solely in United States dollars in the
United States;
(i) the Obligor of which is a Person located in one of the
United States and is not the Grantor, the Transferor or any of their
respective Affiliates;
(j) that requires the Obligor thereunder to maintain in full
force and effect during the term of such Contract a public liability and a
comprehensive and collision physical damage Insurance Policy, with coverage
in amounts not less than that required by applicable State law, and that
includes a term requiring such Insurance Policy to name the Titling Trust,
the Titling Trustee or an agent of the Titling Trust on behalf of the
Titling Trust as a "loss payee" and an "additional insured";
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(k) the related Leased Vehicle of which is titled in the name of
the Titling Trust or the Titling Trustee on behalf of the Titling Trust (or
properly completed applications for such title have been submitted to the
appropriate titling authority) and all transfer and similar taxes imposed
in connection therewith have been paid;
(l) that is fully assignable and that does not require the
consent of the Obligor thereunder as a condition to any transfer, sale or
assignment of the rights of the originator under such Contracts;
(m) that is a "true lease", as opposed to a lease intended as
security, under the laws of the State in which it was originated as such
laws relate to the perfection of security interests therein;
(n) that meets the Origination Criteria and, in the case of any
Contract included in a SUBI Portfolio, meets any Additional Origination
Criteria specified in the related SUBI Supplement;
(o) that was fully and properly executed by the parties thereto
and, upon conveyance to the Titling Trust pursuant to the Titling Trust
Agreement, shall have been validly assigned by the originating Dealer to
the Titling Trust in accordance with the terms of the Dealer Agreement
under which it was originated and immediately thereafter shall be owned by
the Titling Trust;
(p) that is substantially identical to one of the forms of
Contract attached to the UTI Supplement (or such other form as may be
approved from time to time by TMCC in the ordinary course of business);
(q) as to which the information set forth in the Schedule of
Contracts and Leased Vehicles with respect to such Contract and related
Leased Vehicle as of such Cutoff Date is true and correct in all material
respects;
(r) the Obligor under which Contract, according to the records
of the Servicer, has not filed or had filed against it any petition for
relief, rearrangement of its debts or other protection from its creditors
under any State or federal bankruptcy or insolvency laws, except as
otherwise permitted by the Origination Criteria;
(s) in respect of which the Grantor has taken no action such
that such Contract has been satisfied, subordinated, amended, waived,
restricted, rescinded, held to be invalid or unenforceable, altered or
modified in any respect, except (i) to the extent that such action (A) does
not render such Contract not in conformity with any other criteria for an
Eligible Contract, and (B) was made in accordance with the Grantor's
obligations under the Titling Trust Agreement, and (ii) if such action was
made pursuant to a document, instrument or writing, such document,
instrument or writing is included in the related Contract Documents;
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(t) as to which the Grantor, consistent with its standard
underwriting procedures, has reviewed and verified the material information
contained in the related Contract application;
(u) as to which, according to the records of the Grantor, no
default, breach, violation or event permitting acceleration under the terms
of the Contract exists, and no continuing condition that, with notice or
lapse of time, or both, would constitute a default, breach, violation or
event permitting acceleration under the terms of the Contract has arisen,
the Grantor has not waived any of the foregoing, and the related Leased
Vehicle has not been repossessed without reinstatement;
(v) that has not been originated in, and is not subject to the
laws of, any jurisdiction under which the sale, transfer, and assignment of
such Contract under its terms or pursuant to which transfers of the
Contracts or of the related Certificates of Title are unlawful, void or
voidable;
(w) as to which there is only one executed original, which will
be conveyed by the Dealer to the Titling Trustee or to the Grantor or
Servicer as the agent of the Titling Trustee, in each case on behalf of the
Titling Trust;
(x) that constitutes "chattel paper" as defined in the UCC;
(y) that was originated without any fraud or misrepresentation
on the part of the Grantor;
(z) as to which all taxes of any nature or description
whatsoever relating thereto that are due and owing as of the date of
origination have been paid or provided for in full except for (i) any state
transfer taxes payable in connection with the transfer of any Contracts to
the Titling Trustee and (ii) similar transfer taxes to which the Titling
Trustee has consented to; and
(aa) as to which the related Leased Vehicle was a new vehicle
(which may be a dealer demonstrator vehicle driven fewer than 20,000 miles)
or used vehicle (four model years old or less at the time of origination of
the related Contract, and which may be a certified used vehicle or
manufacturers' program vehicle), whether an automobile, light duty truck,
minivan or sports utility vehicle. As used in this clause (bb), certified
used vehicle means a vehicle purchased by a dealer, reconditioned and
certified to meet certain Toyota or Lexus required standards and sold or
leased with an extended warranty, and manufacturers' program vehicle means
a vehicle that has been sold to a rental car company, repurchased by the
manufacturer and subsequently purchased by a dealer to sell or lease as a
current model year or one year old used vehicles with 20,000 miles or less.
"UTI LEASED VEHICLE" means any Leased Vehicle that is an asset of the UTI
Sub-Trust.
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"UTI PLEDGE" means a pledge of and grant of a security interest in the UTI
and UTI Certificate, or any interest therein, in connection with any Securitized
Financing, and the terms and conditions thereof set forth in the related
documentation.
"UTI PORTFOLIO" means the Contracts and Leased Vehicles comprising the
Undivided Trust Interest.
"UTI SUB-TRUST" means the separate Sub-Trust of the Titling Trust
containing all Titling Trust Assets that have not been allocated to any SUBI
Sub-Trust.
"UTI SUPPLEMENT" means any of the one or more supplements or amendments to
the Titling Trust Agreement, substantially in the form attached thereto as an
exhibit, the execution and delivery of which by the UTI Beneficiary and the
Titling Trustee in accordance with Section 3.01(b) of the Titling Trust
Agreement will effect the creation of a UTI.
"UTI UNIT CERTIFICATE" has the meaning described in Section 11.02 of the
UTI Supplement.
"UTI UNIT" has the meaning described in Section 11.01 of the UTI
Supplement.
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