TOYOTA AUTO LEASE TRUST 1998-B
$[ ] [ ]% Auto Lease Asset Backed Certificates, Class A-1
$[ ] [ ]% Auto Lease Asset Backed Certificates, Class A-2
$[ ] [ ]% Auto Lease Asset Backed Certificates, Class A-3
UNDERWRITING AGREEMENT
[___________], 1998
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[ ]
As Representative of the
Several Underwriters
[ ]
Dear Sirs:
1. Introductory. Toyota Leasing, Inc., a California corporation (the
"Transferor"), and Toyota Motor Credit Corporation, a California corporation
("TMCC"), hereby confirm their respective agreements with you and each of the
other underwriters named in Schedule I hereto (the "Underwriters"), for whom you
are acting as representative (the "Representative"), with respect to the sale by
the Transferor to the Underwriters of $[ ] aggregate principal amount
of [ ]% Auto Lease Asset Backed Certificates, Class A-1 (the "Class A-1
Certificates"), $[ ] aggregate principal amount of [ ]% Auto Lease
Asset Backed Certificates, Class A-2 (the "Class A-2 Certificates") and $[ ]
aggregate principal amount of [ ]% Auto Lease Asset Backed Certificates,
Class A-3 (the "Class A-3 Certificates") and, together with the Class A-1
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Certificates and the Class A-2 Certificates, the "Class A Certificates") of the
Toyota Auto Lease Trust 1998-B (the "Securitization Trust") under the terms and
conditions herein contained. Simultaneously with the issuance of the Class A
Certificates, the Transferor will cause the Trust to issue $[ ]
aggregate principal amount of [ ]% Auto Lease Asset Backed Certificates,
Class B (the "Class B Certificates" and, together with the Class A Certificates,
the "Investor Certificates"). The Investor Certificates will be issued pursuant
to a securitization trust agreement, dated as of [ ], 1998 (the
"Securitization Trust Agreement"), between the Transferor and [ ], as
trustee (in such capacity, the "Securitization Trustee"). The Investor
Certificates will represent undivided interests in the Securitization Trust.
The Transferor will own the undivided interest in the Securitization Trust not
evidenced by the Investor Certificates (the "Transferor Interest"). The Class B
Certificates will be subordinated to the Class A Certificates, and the
certificate evidencing the Transferor Interest (the "Transferor Certificate"
and, together with the Investor Certificates, the "Certificates") will be
subordinated to the Investor Certificates, in each case to the extent described
in the Securitization Trust Agreement. Capitalized terms used herein that are
not otherwise defined herein shall have the meanings ascribed thereto in the
Securitization Trust Agreement.
The property of the Securitization Trust will consist primarily of a
certificate representing substantially all of a special unit of beneficial
interest (the "1998-B SUBI"), which, in turn, will evidence a beneficial
interest in certain specified assets of Toyota Lease Trust, a Delaware business
trust (the "Titling Trust"), monies on deposit in the SUBI Collection Account,
and the right to receive payments from the Reserve Fund in certain circumstances
(collectively, the "1998-B SUBI Assets"). The assets of the Titling Trust (the
"Titling Trust Assets") will consist primarily of retail closed-end lease
contracts assigned to the Titling Trust by motor vehicle dealers pursuant to
dealer agreements with the Titling Trust, the automobiles and light duty trucks
relating thereto and the proceeds thereof, and payments made under certain
insurance policies relating to such lease contracts, the related lessees or such
leased vehicles. The 1998-B SUBI Insurance Certificate, representing interests
in certain residual value insurance policies that are part of the 1998-B SUBI,
will not be property of the Securitization Trust.
The Titling Trust is expected to invest certain collections on the
Contracts and Leased Vehicles in certain demand notes ("TMCC Demand Notes")
issued by TMCC pursuant to an indenture (the "Indenture") dated as of August
___, 1998, between TMCC and [ ], as trustee (in such capacity, the
"Indenture Trustee").
The 1998-B SUBI (other than interests in certain Residual Value Insurance
Policies) will be evidenced by a certificate (the "1998-B SUBI Certificate")
issued to TMCC by the Titling Trust pursuant to the 1998-B Supplement (the
"1998-B SUBI Supplement") dated August ___, 1998, to the Amended and Restated
Trust and Servicing Agreement (the "Titling Trust Agreement") dated as of
October 1, 1996, in each case, among TMCC, as grantor, initial beneficiary and
servicer, TMTT, Inc., as trustee (the "Titling Trustee") and [ ], as trust
agent (in such capacity, the "Trust Agent"). TMCC will transfer the 1998-B SUBI
Certificate to the Transferor pursuant to the 1998-B SUBI Certificate Purchase
and Sale Agreement between them (the "1998-B SUBI Certificate Sale Agreement").
The 1998-B SUBI Certificate will be transferred and assigned by the Transferor
to the Securitization Trustee pursuant to the
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Securitization Trust Agreement. The Titling Trust Assets (including the 1998-B
SUBI Assets) will be serviced by TMCC pursuant to the Titling Trust Agreement
and the Series 1998-B SUBI Servicing Supplement to the Titling Trust Agreement
dated as of August ___, 1998 (the "1998-B SUBI Servicing Supplement") among the
Titling Trustee, TMCC and the Transferor. The Securitization Trust Agreement,
the Titling Trust Agreement, the 1998-B SUBI Supplement, the 1998-B SUBI
Servicing Supplement, the 1998-B SUBI Certificate Sale Agreement, the UTI
Supplement (as defined herein), the Indenture and the TMCC Demand Notes are
referred to herein collectively as the "Basic Agreements".
2. Representations and Warranties of the Transferor and TMCC.
(a) Each of the Transferor and TMCC, jointly and severally,
represents and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-1 and Form S-3 (No.
333-[ ]), including a form of prospectus, relating to the Class A
Certificates has been filed with the Securities and Exchange Commission
(the "Commission") and either (A) has been declared effective under the
Securities Act of 1933, as amended (the "Act"), and is not proposed to be
amended or (B) is proposed to be amended by amendment or post-effective
amendment. If the Transferor does not propose to amend such registration
statement and if any post-effective amendment to such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent such post-effective amendment
has been declared effective by the Commission. For purposes of this
Agreement, "Effective Time" means (A) if the Transferor has advised the
Representative that it does not propose to amend such registration
statement, the date and time as of which such registration statement, or
the most recent post-effective amendment thereto, if any, filed prior to
the execution and delivery of this Agreement, was declared effective by the
Commission or (B) if the Transferor has advised the Representative that it
proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as the
case may be, is declared effective by the Commission. "Effective Date"
means the date of the Effective Time. Such registration statement, as
amended at the Effective Time (including all information, if any, deemed to
be a part of such registration statement as of the Effective Time pursuant
to Rule 430A(b) under the Act, the exhibits thereto and all documents
incorporated by reference therein), is hereinafter referred to as the
"Registration Statement", and the form of prospectus (including all
documents incorporated therein or deemed to be incorporated therein)
relating to the Class A Certificates, in the form transmitted to the
Commission for filing pursuant to and in accordance with Rule 424(b) under
the Act ("Rule 424(b)"), or, if no such filing is required, as included in
the Registration Statement at the Effective Time, is hereinafter referred
to as the "Prospectus". The Prospectus delivered to you for use in
connection with the offering of the Class A Certificates is identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to Rule 424(b) or, as of the Effective Date, as the case may be,
pursuant to its Electronic Data Gathering, Analysis and
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Retrieval ("XXXXX") system, except to the extent permitted by Regulation
S-T. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or
"stated" in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus
shall be deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the "1934 Act") which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
(ii) If the Effective Time is prior to the execution and delivery
of this Agreement: (A) on the Effective Date, the Registration Statement
conformed, and on the date of this Agreement the Registration Statement
conforms, in all material respects with the requirements of the Act and the
rules and regulations of the Commission promulgated under the Act (the
"Rules and Regulations") and at such times did not and does not include any
untrue statement of a material fact, and did not and does not omit to state
any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (B) at
the time of the filing of the Prospectus pursuant to Rule 424(b) and at the
Closing Date (as such term is defined in Section 3 hereof), the Prospectus
does and will conform in all material respects to the requirements of the
Act and the Rules and Regulations and does not and will not include any
untrue statement of a material fact and does not and will not omit any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading
except that the representations and warranties set forth in this subsection
(ii) do not apply to statements or omissions in the Prospectus based upon
information furnished to the Transferor in writing by any Underwriter
through the Representative expressly for use therein, it being understood
and agreed that the only such information furnished by any Underwriter
consists of the information in the Prospectus appearing in the fifth, sixth
and seventh textual paragraphs under the caption "Underwriting" and the
information in the paragraph on page [ ] following the Table of Contents.
If the Effective Time is subsequent to the execution and delivery of this
Agreement: (A) on the Effective Date, the Registration Statement and the
Prospectus will conform in all material respects to the requirements of the
Act and the Rules and Regulations, and the Registration Statement will not
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading, and
(B) on the Effective Date or at the time of the filing of the Prospectus
pursuant to Rule 424(b), if required, as the case may be, and at the
Closing Date, the Prospectus will not include any untrue statement of a
material fat or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. The two immediately preceding sentences do not
apply to statements in or omissions from the Registration Statement or
Prospectus based upon written information furnished to the Transferor by
any Underwriter through the Representative specifically for use therein.
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(iii) The consummation of the transactions contemplated by this
Agreement, the Purchase Agreement and the Basic Agreements, and the
fulfillment of the terms thereof, will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
or result in the creation of any lien, charge, or encumbrance upon any of
the property or assets of the Transferor or TMCC pursuant to the terms of,
any indenture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or similar agreement or instrument under which the
Transferor or TMCC is a debtor or guarantor.
(iv) No consent, approval, authorization, or order of, or filing
with, any court or governmental agency or body is required to be obtained
or made by the Transferor or TMCC for the consummation of the transactions
contemplated by this Agreement, the Purchase Agreement and the Basic
Agreements, including without limitation (A) the issuance of the 1998-B
SUBI Certificate, the 1998-B SUBI Insurance Certificate or the UTI
Certificates, (B) the issuance of the Certificates or the offering and sale
of the Investor Certificates, or (C) the execution, delivery and
performance by each of the Transferor or TMCC of this Agreement or any
Basic Agreement to which it is a party and the Certificates, except such as
have been obtained and made under the Act or the Rules and Regulations and
such as may be required under securities laws of any state or foreign
jurisdiction.
(v) Neither the Transferor nor TMCC is in violation of its charter
or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any agreement or
instrument to which it is a party or by which it or its properties are
bound which could have a material adverse effect on the transactions
contemplated herein, in the Purchase Agreement or in the Basic Agreements.
The execution, delivery and performance of this Agreement, the Purchase
Agreement and the Basic Agreements and the issuance and sale of the
Certificates and compliance with the terms and provisions of the
Certificates will not, subject to obtaining any consents or approvals as
may be required under the securities laws of various jurisdictions (in the
United States and elsewhere), result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over the Transferor or TMCC or any of their respective
properties or any agreement or instrument to which the Transferor or TMCC
is a party or by which the Transferor or TMCC is bound or to which any of
their respective properties is subject, or with the charter or by-laws of
the Transferor or TMCC, and each of the Transferor and TMCC has full
corporate power and authority to enter into this Agreement, the Purchase
Agreement and the Basic Agreements to which it is a party and to consummate
the transactions contemplated hereby and thereby. Each of the Transferor
and TMCC is duly qualified or registered as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification or registration is required, whether by reason of the
ownership of property or the conduct of business, except where the failure
to so qualify would not have a material adverse effect on its condition,
financial or otherwise, or the enforceability of the Basic Agreements or
the Contracts.
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(vi) This Agreement has been duly authorized, executed and
delivered by the Transferor and TMCC.
(vii) The Basic Agreements, the 1998-B SUBI Certificate, the 1998-B
SUBI Insurance Certificate and the certificate or certificates representing
the Titling Trust Assets not allocated to the 1998-B SUBI (the "UTI
Certificates") conform in all material respects to the respective
descriptions thereof and the statements in relation thereto contained in
the Prospectus; 1998-B the SUBI Certificate, the 1998-B SUBI Insurance
Certificate and the UTI Certificates have been duly and validly authorized
and, when executed, issued, authenticated and delivered in accordance with
the 1998-B SUBI Supplement, the Titling Trust Agreement and the UTI
Supplement to the Titling Trust Agreement (the "UTI Supplement"), will be
duly and validly issued and outstanding and entitled to the benefits of the
1998-B SUBI Supplement, the UTI Supplement and the Titling Trust Agreement.
(viii) The Certificates conform in all material respects to the
description thereof and the statements in relation thereto contained in the
Prospectus; the Certificates have been duly and validly authorized and,
when executed, issued, authenticated and delivered in accordance with the
Securitization Trust Agreement and, in the case of the Class A
Certificates, when delivered to the Underwriters against payment of the
consideration specified herein, and in the case of the Class B
Certificates, when delivered to the Representative against payment of the
consideration specified in the Purchase Agreement, will be duly and validly
issued and outstanding and entitled to the benefits of the Securitization
Trust Agreement.
(ix) None of the Transferor, TMCC, the Titling Trust or the
Securitization Trust is now or, as a result of the transactions
contemplated by this Agreement, will become, an "investment company", nor
is any of them "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(x) At or prior to the Closing Date, the Titling Trustee will have
allocated as 1998-B SUBI Assets, Contracts and Leased Vehicles that have
an Aggregate Net Investment Value as of the Cutoff Date equal to
$[ ].
(xi) The representations and warranties of each of the Transferor
and TMCC in each Basic Agreement to which it is a party will be true and
correct in accordance with the terms of such Basic Agreement; provided,
however, that with respect to representations or warranties made with
respect to any Contracts or SUBI Assets, the sole remedy for any breach
thereof is, as provided in the related agreement, the repurchase by either
TMCC or the Transferor, as the case may be, of any such Contract or SUBI
Asset.
(xii) All of the issued and outstanding capital stock of the
Transferor is owned by TMCC free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest
(collectively, "Liens") except as permitted by the Basic Agreements.
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(xiii) All filings required to be made in respect of the Titling
Trust's status as a business trust under the laws of each state in which
such filings are required have been made and are in full force and effect
on the Closing Date, except where the failure so to file would not have a
material adverse effect on its condition, financial or otherwise, or its
ability to perform its obligations under each Basic Agreement to which it
is a party or on the enforceability of the Contracts.
(xiv) The accountants who certified the financial statements and
supporting schedules incorporated by reference in the Registration
Statement are independent public accountants with respect to TMCC as
required by the Act and the Rules and Regulations.
(xv) The financial statements and supporting schedules incorporated
by reference in the Registration Statement and the Prospectus present
fairly the financial position of TMCC and its consolidated subsidiaries as
of the dates indicated and the results of their operations for the periods
specified; except as otherwise stated in the Registration Statement, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis and the
supporting schedules incorporated by reference in the Registration
Statement present fairly the information required to be stated therein.
(xvi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, (A) there has been no material adverse
change in the condition, financial or otherwise, of TMCC and its
subsidiaries considered as one enterprise or in the earnings, business
affairs or business prospects of TMCC and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business,
(B) there have been no transactions entered into by TMCC or any of its
subsidiaries, other than those in the ordinary course of business (which
includes, but is not limited to, Euromarket, EuroAsian, or global financing
and domestic private placement and public financing), which are material
with respect to TMCC and its subsidiaries considered as one enterprise, and
(C) since the date of the most recent audited financial statements of TMCC,
there has been no dividend or distribution of any kind declared, paid or
made by TMCC on any class of its capital stock, except as otherwise
disclosed in the Registration Statement and the Prospectus.
(xvii) Except as disclosed in the Registration Statement and
Prospectus, 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 knowledge of TMCC, threatened against TMCC or any of its subsidiaries
which might, in the opinion of TMCC, result in any material adverse change
in the condition, financial or otherwise, of TMCC and its subsidiaries
considered as one enterprise, or in the earnings, business affairs or
business prospects of TMCC and its subsidiaries considered as one
enterprise.
(xviii) An application has been made on behalf of the Transferor for
the Class A Certificates to be listed on the [ ] Stock Exchange
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(xix) [All payments of principal and interest in respect of the
Certificates may be made free and clear of, and without withholding or
deduction for, any taxes, duties, assessments or governmental changes of
whatsoever nature imposed, levied, collected, withheld or assessed by the
United States or any political subdivision or authority thereof or therein
having power to tax.]
(b) Any Officer's Certificate signed by any officer of TMCC or the
Transferor and delivered to the Representative or counsel for the Underwriters
shall be deemed a representation and warranty of TMCC or the Transferor, as the
case may be, to each Underwriter as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Class A Certificates. On the
basis of and in reliance on the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Transferor agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase from the
Transferor, the aggregate principal amount of each Class of Class A Certificates
set forth in Schedule I opposite the name of such Underwriter, at a purchase
price equal to the following percentages of the aggregate initial principal
balances thereof, (i) in the case of the Class A-1 Certificates, [ ]%,
(ii) in the case of the Class A-2 Certificates, [ ]% and (iii) in
the case of the Class A-3 Certificates, [ ]%.
Each Class of Class A Certificates will initially be represented by one or
more certificates registered in the name of [ ], as the nominee of
[ ]. The interests of beneficial owners of each Class of Class A
Certificates will be represented by book entries on the records of [ ] and
participating members thereof.
The Transferor will deliver the Class A Certificates to the Representative
for the respective securities accounts of the Underwriters, against payment of
the purchase price therefor in immediately available funds payable to the order
of the Transferor, at the office of [ ]or at such other location as
agreed upon among the Transferor, TMCC and the Representative) at 10:00 A.M.,
Los Angeles time, on August [ ], 1998, or at such other time not later than
five full business days thereafter, as the Transferor, TMCC and the
Representative determine, such time being herein referred to as the "Closing
Date". The certificates evidencing the Class A Certificates will be made
available for inspection at the above offices of [ ] (or at such other
location agreed upon among the Transferor, TMCC and the Representative) at least
24 hours prior to the Closing Date.
4. Offering by the Underwriters. It is understood that the several
Underwriters propose to offer the Class A Certificates for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Transferor and TMCC. Each of the Transferor
and TMCC, as the case may be, jointly and severally, covenants and agrees with
each of the Underwriters that:
(a) If the Effective Time is prior to the execution and delivery of this
Agreement, the Transferor will file the Prospectus with the Commission pursuant
to and in accordance with
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subparagraph (1) (or, if applicable and if consented to by the Representative,
subparagraph (4)) of Rule 424(b), not later than the second business day
following the execution and delivery of this Agreement. The Transferor will
advise the Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Transferor and TMCC will advise the Representative promptly of any
proposal to amend or supplement the registration statement as filed or the
related prospectus or the Registration Statement or the Prospectus (whether
pursuant to the Act or the 1934 Act) and will not effect any such amendment or
supplement without the consent of the Representative. The Transferor will
advise the Representative promptly of the effectiveness of the Registration
Statement (if the Effective Time is subsequent to the execution and delivery of
this Agreement), of any amendment or supplement of the Registration Statement or
the Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement. The Transferor will use
its best efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Class A Certificates
is required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act, the Transferor and TMCC will promptly
notify the Representative and, with the consent of the Representative (which
consent shall not be unreasonably withheld), will promptly prepare and file, or
cause to be prepared and filed, with the Commission an amendment or supplement
which will correct such statement or omission, or an amendment or supplement
that will effect such compliance. Neither the consent of the Representative to,
nor the delivery by the Representative of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6
hereof.
(d) As soon as practicable, but not later than the Availability Date (as
defined below), the Transferor will cause the Securitization Trustee to make
generally available to the Class A Certificateholders an earnings statement with
respect to the Securitization Trust covering a period of at least 12 months
beginning after the Effective Date that will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence, "Availability
Date" means the 45th day after the end of the fourth fiscal quarter following
the Transferor's fiscal quarter that includes such Effective Date, except that,
if such fourth fiscal quarter is the last quarter of the Transferor's fiscal
year, "Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
(e) The Transferor will furnish to the Representative copies of the
registration statement as originally filed with the Commission and each
amendment thereto (in each case including a photocopy of the originally executed
copy and one with all exhibits), each related preliminary prospectus, the
Prospectus and all amendments and supplements to such documents, in each case as
soon as available and in such quantities as the Representative may reasonably
request.
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(f) The Transferor will arrange for the qualification of the Class A
Certificates for sale under the laws of such jurisdictions in the United States
as the Representative may reasonably designate and will continue such
qualifications in effect so long as required for the distribution of the Class A
Certificates, provided that the Transferor shall not be obligated to qualify to
do business or become subject to service of process generally, but only to the
extent required for such qualification, in any jurisdiction in which it is not
currently so qualified.
(g) So long as any Investor Certificates are outstanding, the Transferor
or TMCC, as the case may be, will deliver or cause to be delivered to the
Representative copies of (i) each statement relating to the Investor
Certificates delivered to Certificateholders pursuant to Section [3.03] of the
Securitization Trust Agreement, (ii) the annual statement as to compliance and
the annual statement of a firm of independent public accountants furnished
pursuant to Sections [5.02 ]or [5.03] of the 1998-B SUBI Servicing Supplement,
(iii) each certificate or notice delivered by the Servicer pursuant to
Section 9.03 of the Titling Trust Agreement and Section [7.04] of the 1998-B
SUBI Servicing Supplement, (iv) copies of each document filed with the [
] Stock Exchange, (v) each periodic report required to be filed by the
Transferor with the Commission pursuant to the Exchange Act, or any order of the
Commission thereunder, and (vi) such other information concerning the
Transferor, TMCC, the Titling Trustee (in its capacity as trustee of the Titling
Trust), the Titling Trust, the Trust or the Certificates as the Representative
may reasonably request from time to time.
(h) The Transferor and TMCC will pay all expenses incident to the
performance of their respective obligations under this Agreement, including
without limitation, (i) expenses incident to the word processing, printing,
reproduction and distribution of the registration statement as originally filed
with the Commission and each amendment thereto, preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto), (ii) the fees and
disbursements of the Titling Trustee, the Securitization Trustee, the Trust
Agent and their respective counsel, (iii) the fees and disbursements of counsel
and the independent public accountants of the Transferor and TMCC, (iv) the fees
charged by each of [ ] and [ ] and, together with [ ], the
"Rating Agencies") in connection with the rating of each Class of Class A
Certificates, (v) the fees of [ ] in connection with the book-entry
registration of the Class A Certificates, (vi) listing fees, (vii) the fees and
expenses of [ ] and (viii) expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriters, and will reimburse the Underwriters for any
expenses (including reasonable fees and disbursements of counsel) incurred by
the Underwriters in connection with the qualification of the Class A
Certificates for sale under the laws of such jurisdictions in the United States
as the Representative may designate pursuant to Section 5(f) hereof. If this
Agreement is terminated by the Representative in accordance with the provisions
of Section 6 or clause (i) or clause (ii) of Section 9 hereof, the Transferor
and TMCC shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel to the
Underwriters, reasonably incurred by them in the offering of the Class A
Certificates.
(i) For a period of 45 days from the date hereof, none of the Transferor,
TMCC or any of their respective affiliates will, without the prior written
consent of the Representative,
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directly or indirectly, offer, sell or contract to sell or announce the offering
of, in a public or private transaction, any other asset-backed auto lease
securities similar to the Class A Certificates other than the Class B
Certificates and notes the payments of which are secured by assets other than
SUBI Assets lease or contracts, even if payments thereon reflect the performance
of a pool or pools of lease contracts.
(j) So long as any Class A Certificates are outstanding, the Transferor
and TMCC will cause to be delivered to the Representative a reliance letter
relating to each Opinion of Counsel delivered to the Securitization Trustee or
any Rating Agency by counsel to the Transferor or counsel to TMCC pursuant to
the Basic Agreements.
(k) To the extent, if any, that the rating provided with respect to any
Class of Class A Certificates by any Rating Agency is conditional upon the
furnishing of documents or the taking of any other actions by the Transferor or
TMCC, the Transferor or TMCC, as the case may be, shall furnish such documents
and take any such other actions.
(l) The Transferor will file with the Commission such report on Form SR as
may be required pursuant to Rule 463 under the Act.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Class A Certificates will
be subject to the accuracy of the respective representations and warranties on
the part of the Transferor and TMCC herein, to the accuracy of the statements of
the Transferor and TMCC made in any officers' certificate pursuant to the
provisions hereof, to the performance by the Transferor and TMCC of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) On (i) the date of this Agreement, the Representative , the Transferor
and TMCC shall have received two letters (one of which relates to the Contracts
and related information and one of which relates to the financial statements of
TMCC), dated the date of delivery thereof (which, if the Effective Time is prior
to the execution and delivery of this Agreement, shall be on or prior to the
date of this Agreement or, if the Effective Time is subsequent to the execution
and delivery of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed shortly prior
to the Effective Time), of [ ] confirming that they are independent public
accountants with respect to the Transferor and TMCC within the meaning of the
Act and the Rules and Regulations, substantially in the form of the drafts to
which the Representative has previously agreed and otherwise in form and in
substance satisfactory to the Representative and counsel for the Underwriters,
and (ii) on the Closing Date, the Representative , the Transferor and TMCC shall
have received a letter, dated as of the Closing Date, from [ ],
updating the letter delivered pursuant to clause (i) above that relates to the
financial statements of TMCC, in form and substance satisfactory to the
Representative and counsel for the Underwriters.
(b) If the Effective Time has not occurred prior to the date of this
Agreement, the Effective Time shall have occurred not later than 5:30 p.m. New
York City time on the date of execution and delivery of this
11
Agreement, or such later date as shall have been consented to by the
Representative. If the Effective Time is prior to the execution and delivery of
this Agreement, the Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) hereof. Prior to the
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Transferor, TMCC or the
Representative, shall be contemplated by the Commission.
(c) The Representative shall have received a certificate dated the Closing
Date of the President, any Vice President or a principal accounting or financial
officer of the Transferor and the President, any Vice President or a principal
accounting or financial officer of TMCC in which such officer shall state (i) in
the case of the Transferor, that (A) to the best knowledge of such officer after
reasonable investigation, the representations and warranties of the Transferor
in this Agreement are true and correct, (B) to the best knowledge of such
officer after reasonable investigation, the Transferor has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are contemplated by the Commission and
(C) subsequent to the date of this Agreement, there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Transferor except as set forth in or
contemplated by the Prospectus and (ii) in the case of TMCC, that (A) to the
best knowledge of such officer after reasonable investigation, the
representations and warranties of TMCC in this Agreement are true and correct,
(B) to the best knowledge of such officer after reasonable investigation, TMCC
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder and (C) subsequent to the date of this
Agreement, there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of TMCC
that would materially and adversely affect the performance by TMCC of its
obligations under this Agreement or the Basic Documents to which it is a party.
(d) The Representative shall have received:
(i) the favorable opinion, dated the Closing Date, of Xxxx X.
Xxxxx, Esq., General Counsel of TMCC and counsel to the Transferor, in form
and scope satisfactory to the Representative and its counsel, to the effect
that:
(A) Each of the Transferor and TMCC is a corporation duly
organized, existing and in good standing under the laws of the
State of California.
(B) Each of the Transferor and TMCC is duly incorporated or
qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which their
respective ownership or lease of substantial properties or the
conduct of their respective businesses requires such
qualification and in which the failure to so qualify and be in
good standing would materially adversely affect their
respective businesses or financial condition.
12
(C) To such counsel's knowledge (A) there are no legal or
governmental proceedings pending or threatened against TMCC or
in connection with the origination and servicing of the
Contracts by TMCC which are required to be disclosed in the
registration statement, other than those disclosed therein,
(B) there are no legal or governmental proceedings to which
TMCC is a party or to which any of its property is subject
which are not described in TMCC's Annual Report on Form 10-K
for the year ended September 30, 1997, or its Quarterly
Report for the quarter ended June 30, 1998, which are
required to be disclosed therein other than those disclosed
therein and (C) there are no pending legal or governmental
proceedings to which the Transferor is a party or to which any
of its property is subject.
(D) To such counsel's knowledge (1) no default exists in the due
performance or observance by TMCC of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it may be bound,
which default would have a material adverse effect on the
financial condition, earnings, business affairs, business
prospects, properties or results of operations of TMCC and its
subsidiaries considered as one enterprise, and (2) other than
the agreements related to the Toyota Auto Lease Trust 1997-A,
the Toyota Auto Lease Trust 1998-A, this Agreement, the
Purchase Agreement, the Basic Agreements and the Subordinated
Note payable to TMCC, the Transferor is not a party to any
material contract, indenture, mortgage, loan agreement, note,
lease or other instrument.
(E) The execution, delivery and performance of this Agreement, the
Purchase Agreement and the Basic Agreements and the
consummation of the transactions herein and therein
contemplated will not (1) conflict with or constitute a breach
of, or default under, or result in the creation or imposition
of any Lien upon any property or assets of TMCC or any of its
subsidiaries pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument
known to such counsel to which TMCC or any of its subsidiaries
is a party or by which it or any of them may be bound, or to
which any of the property or assets of TMCC or any of its
subsidiaries is subject, (2) result in any violation of the
provisions of the charter or bylaws of TMCC or the Transferor
or (3) to such counsel's knowledge, result in any violation of
any applicable law, administrative regulation or
administrative or court decree.
(F) Each of the Transferor and TMCC has obtained all necessary
authorizations and approvals under the federal law of the
United States and the laws of the State of California to
conduct their respective businesses in which the failure to
obtain such authorizations and approvals would render any
Contract or any other material part of the
13
corpus of the Titling Trust unenforceable or would materially
and adversely affect the ability of either the Transferor or
TMCC to perform any of their respective obligations under, or
the enforceability of, any Basic Agreement; provided, however,
that such counsel need express no opinion with respect to any
consent or approval relating to the authority to lease motor
vehicles, originate lease contracts or to service such leased
motor vehicles and lease contracts.
(ii) The favorable opinions of [ ], special counsel
to the Transferor and TMCC, dated the Closing Date and satisfactory in form
and substance to the Representative and counsel for the Underwriters and to
the effect that:
(A) Each of the Transferor and TMCC has corporate power to own,
lease and operate its properties and assets, to carry on its
business as described in the Prospectus and to enter into and
to perform its obligations under this Agreement and each Basic
Agreement to which it is a party.
(B) The execution, delivery and performance of this Agreement and
each Basic Agreement to which each of TMCC or the Transferor
is a party, have been duly authorized by all necessary
corporate actions on the part of TMCC and the Transferor and
each of TMCC and the Transferor has duly executed and
delivered this Agreement and each Basic Agreement to which it
is a party.
(C) Each Basic Agreement to which the Transferor or TMCC is a
party, constitutes a legally valid and binding obligation of
the Transferor or TMCC, as applicable, enforceable against
the Transferor or TMCC, as applicable, in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by general
principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or
injunctive relief, regardless of whether considered in a
proceeding at equity or at law.
(D) The Certificates have been duly authorized by all necessary
corporate action on the part of the Transferor and, when
executed and authenticated by the Trustee as specified in the
Securitization Trust Agreement and, in the case of the Class A
Certificates, delivered against payment of the consideration
specified in this Agreement and, in the case of the Class B
Certificates, paid for pursuant to the Purchase Agreement
dated [ ], 1998, between the Transferor, TMCC and the
Representative (the "Purchase Agreement"), will be validly
issued and outstanding and entitled to the benefits of the
Securitization Trust Agreement, except as
14
limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting creditors' rights
generally (including, without limitation, fraudulent
conveyance laws) and by general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding at equity or
at law.
(E) No order, consent, permit or approval of any California, New
York or federal governmental authority that such counsel has,
in the exercise of customary professional diligence,
recognized as applicable to TMCC or the Transferor, or to
transactions of the type contemplated by this Agreement or any
Basic Agreement , including the issuance of the 1998-B SUBI
Certificate, the 1998-B SUBI Insurance Certificate and Class A
Certificates, is required on the part of TMCC or the
Transferor for the execution and delivery of, and performance
of its obligations under this Agreement and any Basic
Agreement, except for such as have been obtained or made and
are in full force and effect as of the Closing Date; provided
that such counsel need express no opinion with respect to any
orders, consents, permits, approvals, filings or licenses
relating to the authority to lease motor vehicles, originate
lease contacts or to service lease contracts or leased
vehicles or any foreign securities laws or as may be required
by any regional or local governmental authority.
(F) To such counsel's knowledge, there are no actions, proceedings
or investigations pending or threatened, to which the
Transferor or TMCC is a party or of which any property of the
Transferor or TMCC is the subject that are required to be
disclosed in the Registration Statement, other than those
disclosed therein, or (A) asserting the invalidity of this
Agreement, any Basic Agreement or the Certificates, (B)
seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this
Agreement or any Basic Agreement, (C) that would, if
determined adversely to TMCC or the Transferor, materially and
adversely affect the performance by the Transferor or TMCC of
its respective obligations under, or the validity or
enforceability of, this Agreement, any Basic Agreement or the
Certificates or (D) seeking adversely to affect the federal
income tax attributes of the Certificates as described in the
Prospectus under the heading "Material Federal Income Tax
Consequences" or the California income and franchise tax
attributes of the Class A Certificates.
(G) The Certificates and the Basic Agreements each conform in all
material respects with the respective descriptions thereof
contained in the Registration Statement and the Prospectus.
15
(H) The statements in the Prospectus under the captions "Summary",
"Risk Factors", "Description of the Certificates", "Assets of
the Trust" and "Additional Document Provisions", insofar as
such statements purport to summarize certain provisions of the
1998-B SUBI, the UTI Certificates, the Certificates, the Basic
Agreements and the Contingent and Excess Liability Insurance
Policies, are correct in all material respects.
(I) The statements in the Prospectus under "Risk Factors -- Risks
Associated with Consumer Protection Laws", "-- Risks
Associated with ERISA Liabilities", "-- Risks Associated with
Vicarious Tort Liability on Leased Vehicles", "-- Risks
Associated with Possible Insolvency of TMCC; Substantive
Consolidation with TMCC" and "-- Legal Proceedings Relating to
Lease Contracts", "Additional Document Provisions", "Certain
Legal Aspects of the Titling Trust", "Certain Legal Aspects of
the Contracts and the Leased Vehicles", "Material Federal
Income Tax Consequences" and "ERISA Considerations", to the
extent that they constitute matters of law or legal
conclusions relating to U.S. federal law or the laws of the
State of California and New York, have been reviewed by such
counsel and are correct in all material respects.
(J) The Registration Statement has become effective under the Act,
and, to the knowledge upon due inquiry of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings for
that purpose have been initiated or threatened by the
Commission under the Act, and the Registration Statement and
the Prospectus, and each amendment or supplement thereto, as
of their respective effective or issue dates, appeared on its
face to be appropriately responsive in all material respects
to the applicable requirements of the Act and the Rules and
Regulations, except that such counsel need not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus except for those as contemplated by clauses (H) and
(I) of Section 6(d)(ii), in each case to the extent set forth
therein, and such counsel need not opine as to the financial
statements and related notes, schedules and other financial
and statistical data included or incorporated by reference
therein.
(K) None of the Titling Trust Agreement, the 1998-B SUBI
Supplement, or the Securitization Trust Agreement are required
to be qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"); and the Indenture has been duly
qualified under the 1939 Act.
(L) None of the Transferor, TMCC, the Titling Trust or the
Securitization Trust is an "investment company" within the
meaning of the Investment Company Act.
16
(M) If TMCC were to become a debtor in a case under the Bankruptcy
Code, neither the 1998-B SUBI Certificate nor the 1998-B
SUBI Insurance Certificate would be part of the bankruptcy
estate of TMCC and it would not be a proper exercise by a
federal bankruptcy court of its equitable jurisdiction to
substantively consolidate the assets of the Titling Trust, the
Transferor or the Securitization Trust with the assets and
liabilities of TMCC. The transfer of the 1998-B SUBI
Certificate and the 1998-B SUBI Insurance Certificate by TMCC
to the Transferor constitutes a sale of the 1998-B SUBI
Certificate, the 1998-B SUBI Insurance Certificate and the
1998-B SUBI Assets evidenced thereby. The transfer of the
1998-B SUBI Certificate by the Transferor to the
Securitization Trust either (A) constitutes a sale of the
1998-B SUBI Certificate and the 1998-B SUBI Assets evidenced
thereby or (B) if such transfer does not constitute a sale,
then the Securitization Trust Agreement and the delivery to
and possession by the Securitization Trustee of the 1998-B
SUBI Certificate creates a valid first priority perfected
security interest, for the benefit of the Securitization
Trustee on behalf of the Certificateholders, in the
Transferor's right, title and interest in the 1998-B SUBI
Certificate and the proceeds thereof and, upon taking the
actions specified in such opinion, in the specified items of
collateral in the Reserve Fund and the proceeds thereof.
In addition, such counsel shall state that such counsel has
participated in conferences with the officers and other representatives of
TMCC and the Transferor, representatives of their independent public
accountants and the representatives of the Underwriters and their counsel,
at which the Registration Statement and the Prospectus were discussed
and, although such counsel has not independently verified their accuracy,
completeness or fairness and does not assume any responsibility for the
accuracy, completeness or fairness of the Registration Statement or the
Prospectus (relying in such counsel's determination as to materiality to
an extent upon the opinions of officers and other representatives of TMCC
and the Transferor), such counsel does not believe that the Registration
Statement, at the Effective Time, or any such amendment or supplement, as
of its effective date, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or that the Prospectus, at the
date thereof (or any such amendment or supplement, as of its respective
date) or at the Closing Date included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; it being understood that such
counsel need not express any opinion or belief as to any financial
statements, schedules or other financial, numerical or statistical data
contained or incorporated by reference in any Registration Statement or the
Prospectus or the Indenture Trustee's Statement of Qualification on Form
T-1.
17
Such counsel's opinion in paragraph (C) above as to the enforceability
of the Basic Agreements is subject to the unenforceability under certain
circumstances: (1) of waivers of rights granted by law where the waivers
are against public policy or prohibited by law: (2) of waivers of vaguely
or broadly stated rights or future rights; (3) of any indemnification
provisions; (4) of any provisions that rights or remedies are not
exclusive, that every right or remedy is cumulative and may be exercised in
addition to or with any other right or remedy or that the election of some
particular remedy or remedies does not preclude recourse to one or more
other remedies; (5) the unforceability under certain circumstances of
choice of law provisions; and (6) the unenforceability under certain
circumstances of severability provisions.
With respect to the opinion expressed in paragraph (C), such counsel may
assume the matters set forth in the opinion of [ ].
(iii) The opinion as to tax and related matters, dated the Closing
Date, of [ ], special counsel to TMCC and the Transferor, in form and
substance satisfactory to the Representative and to counsel for the
Underwriters.
(iv) Reliance letters relating to each legal opinion relating to
the transactions contemplated by this Agreement and the Basic Agreements
rendered by counsel to the Transferor or TMCC to the Securitization
Trustee, the Titling Trustee and each Rating Agency.
(v) The favorable opinion of [ ], special
Delaware counsel to the Titling Trust, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters, to the effect that:
(A) The Titling Trust Agreement is the legal, valid and binding
agreement of TMCC, the Titling Trustee and [ ],
enforceable against each of them in accordance with its terms.
(B) The Titling Trust has been duly formed and validly existing as
a business trust under the [ ].
(C) The Titling Trust has the power and authority under the [ ]
and the Titling Trust Agreement, and the Titling Trust
Agreement authorizes the Titling Trustee, to execute, deliver
and perform its obligations under each Basic Agreement to
which it is a party.
(D) To the extent that Article 9 of the Uniform Commercial Code as
in effect in the [ ] (the "UCC") is applicable
(without regard to conflict of laws principles), and assuming
that a security interest in the 1998-B Contracts created by
the Securitization Trust Agreement has been duly created and
has attached, upon the filing of the Financing Statement with
the [ ], the Securitization Trustee will have a
perfected security interest in the Titling Trust's rights in
the 1998-B Contracts and
18
the proceeds thereof, and such security interest will be prior
to any other security interest granted by the Titling Trust
that is perfected solely by the filing of financing statements
under the UCC, excluding purchase money security interests
under Section 9-312(4) of the UCC and temporarily perfected
security interests in proceeds under Section 9-306(3) of the
UCC.
(E) No re-filing or other action is necessary under the UCC in the
[ ] in order to maintain the perfection of such security
interest except for the filing of continuation statements at
five year intervals.
(F) The 1998-B SUBI Certificate, the 1998-B SUBI Insurance
Certificate and the UTI Certificates have been duly and
validly authorized and, when executed, authenticated and
delivered pursuant to the SUBI Supplement, the UTI Supplement
and the Titling Trust Agreement, will be duly and validly
issued and outstanding and entitled to the benefits of the
SUBI Supplement, the UTI Supplement and the Titling Trust
Agreement.
(G) Under 12 Del. C. Section 3805(b), no creditor of any holder of
a SUBI Certificate or a UTI Certificate (including creditors
of TMCC, as the holder of the UTI Certificate) shall have any
right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of the
Titling Trust except in accordance with the terms of the
Titling Trust Agreement.
(vi) The favorable opinion of [ ], special counsel to
TMCC and the Titling Trust, with respect to various licensing, consumer
protection and other state law matters in the form previously agreed on
with the Representative and counsel for the Underwriters.
(vii) The favorable opinion of [ ], counsel to
the Securitization Trustee, dated the Closing Date and satisfactory in form
and substance to the Representative and counsel to the Underwriters, to the
effect that:
(A) [ ] has been duly incorporated and is validly
existing as a national banking association, in good standing
under the laws of United States with full power and authority
(corporate and other) to own its properties and conduct its
business, as presently conducted by it, and to enter into and
perform its obligations as Securitization Trustee and Trust
Agent under each Basic Agreement to which [ ] is a
party.
(B) Each Basic Agreement to which [ ] is a party has been
duly authorized, executed and delivered by [ ] and,
assuming the due authorization, execution and delivery thereof
by the other parties thereto, will constitute a legal, valid
and binding obligation of [ ] enforceable in
accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency,
19
moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(C) The Certificates have been duly executed, authenticated and
delivered by the Securitization Trustee.
(D) Neither the execution nor delivery by [ ] of each Basic
Agreement to which it is a party nor the consummation of any
of the transactions by [ ] contemplated thereby require
the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with
respect to, any governmental authority or agency under any
existing federal or state law governing the banking or trust
powers of [ ].
(E) The execution and delivery of each Basic Agreement to which
[ ] is a party and the performance by [ ] of its
terms do not conflict with or result in a violation of (A) any
federal or state law or regulation governing the banking or
trust powers of [ ] (B) the Articles of Association
or By-Laws of [ ], or (C) to the best knowledge of such
counsel, any indenture, lease, or material agreement to which
[ ] is a party or to which its assets are subject.
(F) All of the issued and outstanding capital stock of the Titling
Trustee is owned by [ ], free and clear of any Liens.
(viii) The favorable opinion of [ ] counsel to the
Titling Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters, to the
effect that:
(A) The Titling Trustee has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the [ ] with corporate power and authority to own,
lease and operate its properties, to conduct its business as
described in the Registration Statement and to enter into and
perform its obligations under each Basic Agreement to which it
is a party; to the best of their knowledge and information,
the Titling Trustee is duly qualified as a foreign corporation
to transact business and is in good standing in [ ];
and the shares of issued and outstanding capital stock of the
Titling Trustee have been duly authorized and validly issued,
are fully paid and non-assessable and are owned by U.S. Bank.
(B) Each Basic Agreement to which the Titling Trustee is a party
has been duly authorized, executed and delivered by the
Titling Trustee and, assuming the due authorization, execution
and delivery thereof by the other parties thereto, will
constitute legal, valid and binding obligations of
20
the Titling Trustee enforceable in accordance with their
respective 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
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(C) The 1998-B SUBI Certificate, the 1998-B SUBI Insurance
Certificate and the UTI Certificates have been duly executed,
authenticated and delivered Neither the execution nor
delivery by the Titling Trustee of each Basic Agreement to
which it is a party nor the consummation of any of the
transactions by the Titling Trustee contemplated thereby
require the consent or approval of, the giving of notice to,
the registration with or the taking of any other action with
respect to, any person or entity, including any governmental
authority or agency under any existing federal or state law.
(D) The execution and delivery of each Basic Agreement to which
the Titling Trustee is a party and the performance by the
Titling Trustee of their respective terms do not conflict with
or result in a violation of its articles of incorporation or
bylaws of the Titling Trustee or, to the best of such
counsel's knowledge, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a
party, by which it may be bound or to which any of its
property or assets is subject.
(ix) The favorable opinion of [ ], counsel for the
Underwriters, dated the Closing Date, with respect to the existence of the
validity of the Certificates and such other related matters as the
Representative shall request. In rendering such opinion, [ ] may
rely on the opinions of counsel referred to above.
(x) Such other documents, opinions and certificates as the
Underwriters, or counsel to the Underwriters, may reasonably require.
(e) Each Class of Class A Certificates shall be rated in the highest
rating category by each of [ ] and [ ].
(f) Each of the Transferor and TMCC confirms that it has caused to be made
an application on the Transferor's behalf for the Class A Certificates to be
listed on the [ ] Stock Exchange.
(g) On or prior to the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance of the
21
Certificates and sale of the Class A Certificates as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the parties to the Basic
Agreements in connection with the issuance of the Certificates and sale of the
Class A Certificates as herein contemplated shall be reasonably satisfactory in
form and substance to the Representative and counsel for the Underwriters.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representative by notice to the Transferor and TMCC at any time at or prior to
the Closing Date, and such termination shall be without liability of any party
to any other party except as provided in Section 5(h) hereof.
7. Indemnification and Contribution.
(a) The Transferor and TMCC will, jointly and severally, indemnify and
hold harmless each Underwriter and its directors and officers against any
losses, claims, damages or liabilities, joint or several, as incurred, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that neither the Transferor nor TMCC will be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with written information furnished to the Transferor or TMCC by any Underwriter
through the Representative specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information in the Prospectus appearing in the fifth, sixth and seventh
textual paragraphs under the caption "Underwriting" and the information in the
paragraph on page [ ] following the Table of Contents; provided that neither
TMCC nor the Transferor shall be liable under this subsection (a) to the extent
that such losses, claims, damages or liabilities arose out of or are based upon
an untrue statement or omission made in any preliminary Prospectus that is
corrected in the inal Prospectus (or any amendment or supplement thereto) if the
person asserting such loss, claim, damage or liability was not sent or given the
final Prospectus (or any amendment or supplement thereto) on or prior to the
confirmation of the sale of the Certificates.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Transferor and TMCC and their respective directors or officers
against any losses, claims, damages or liabilities, joint or several, as
incurred, to which the Transferor or TMCC may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
22
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Transferor or TMCC by such Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriters consists of the information in the
Prospectus appearing in the fifth, sixth and seventh textual paragraphs under
the caption "Underwriting" and the information in the paragraph on page [ ]
following the Table of Contents and will reimburse any legal or other expenses
reasonably incurred by the Transferor or TMCC in connection with investigating
or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in Section 7(a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Transferor and
TMCC on the one hand and the Underwriters on the other from the offering of the
Class A Certificates or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Transferor and TMCC on the one hand and the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Transferor and
TMCC on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Class A
Certificates (before deducting expenses) received by the Transferor and TMCC
bear to the total underwriting discounts and commissions and the service fee
specified in Section 5(h) received by the Underwriters in respect of the Class A
Certificates. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Transferor or TMCC or the Underwriters and the
parties' relative intent, knowledge, access
23
to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this Section
7(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
action or claim which is the subject of this Section 7(d). Notwithstanding the
provisions of this Section 7(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Class A
Certificates underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this Section 7(d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Transferor and TMCC under this Section shall be
in addition to any liability which the Transferor or TMCC may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Transferor or TMCC, to each
officer of the Transferor or TMCC who has signed the Registration Statement and
to each person, if any, who controls the Transferor or TMCC within the meaning
of the Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Transferor and TMCC or their respective officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Transferor, TMCC or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Class A Certificates. If for any
reason the purchase of the Class A Certificates by the Underwriters is not
consummated, the Transferor and TMCC shall remain responsible for the expenses
to be paid or reimbursed by them pursuant to Section 5(h) hereof and the
respective obligations of the Transferor, TMCC and the Underwriters pursuant to
Section 7 hereof shall remain in effect.
9. Termination of Agreement. The Representative may terminate this
Agreement, by notice to the Transferor and TMCC, at any time prior to or at the
Closing Date (a) if there has been any material adverse change in the condition,
financial or otherwise, or in the business affairs or business prospects of the
Transferor, TMCC or the Titling Trust which, in the reasonable judgment of the
Representative (after consultation with the Underwriters), materially impairs
the investment quality of the Class A Certificates, or makes it impractical or
inadvisable to proceed with the completion of the sale of and payment for the
Class A Certificates; (b) if, subsequent to the date of this Agreement, there
has occurred any downgrading in the rating of the debt securities of TMCC or
Toyota Motor Sales, U.S.A., Inc. or any of their direct or indirect
24
subsidiaries by any "nationally recognized statistical rating organization" (as
such term is defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (c) if, subsequent to the date of this Agreement,
there has occurred any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by the United States Congress
or any other substantial national or international calamity or emergency if, in
the reasonable judgment of the Representative (after consultation with the
Underwriters), the effect of any such outbreak, escalation, declaration calamity
or emergency makes it impractical or inadvisable to proceed with completion of
the sale of and payment for the Class A Certificates; (d) if, subsequent to the
date of this Agreement, there has occurred any suspension or limitation of
trading in securities generally on the New York Stock Exchange or the Luxembourg
Stock Exchange or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of TMCC on any exchange or in the
over-the-counter market; or (e) if, subsequent to the date of this Agreement, a
banking moratorium has been declared by either federal, New York or California
authorities.
10. Default By One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Date to purchase the Class A Certificates
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, but not the obligation,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the total aggregate principal amount of the Class A Certificates,
the non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in such proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the total aggregate principal amount of the Class A Certificates, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action pursuant to this Section shall relieve any defaulting Underwriter
from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representative or the Transferor shall have the right
to postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangement.
11. Notices. All communications hereunder will be in writing and, if sent
to (i) the Underwriters, shall be directed to the Representative and will be
mailed, delivered or sent by
25
facsimile and confirmed to it at [ ], Attention: [ ], Managing
Director, Asset Backed Securities Group (facsimile number [ ]);
(ii) the Transferor, will be mailed, delivered or sent by facsimile and
confirmed to it at Toyota Leasing, Inc., 00000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: Treasury Department (facsimile number
310-787-6194); or (iii) TMCC, will be mailed, delivered or sent by facsimile and
confirmed to it at 00000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Treasury Department (facsimile number 310-787-6194).
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Representations. Warranties and Agreements of Underwriters. (a)
With respect to any offers or sales of the Class A Certificates outside the
United States (and solely with respect to any such offers and sales) each
Underwriter severally and not jointly makes the following representations and
agrees that:
(i) United Kingdom
(A) in relation to the Class A Certificates [which have a maturity
of one year or more], it has not offered or sold and, prior to
the expiry of the period of six months from the Closing Date
in respect of any such Class A Certificates, will not offer
or sell any such the Class A Certificates to persons in the
United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995;
(B) it has complied and will comply with all applicable provisions
of the Financial Services Act 1986 with respect to anything
done by it in relation to the Class A Certificates in, from or
otherwise involving the United Kingdom; and
(C) it has only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in
connection with the issue of any of the Class A Certificates
to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment
Advertisements)(Exemptions) Order 1996 (as amended) or is a
person to whom such document may otherwise lawfully be issued
or passed on.
(ii) [Germany
26
in connection with the initial placement of any Class A Certificates
in Germany, it will offer and sell such Class A Certificates (i) only for
an aggregate purchase price per purchaser of at least DM 80,000 (or the
foreign currency equivalent) or such other amount as may be stipulated from
time to time by applicable German law or (ii) as may otherwise be permitted
in accordance with applicable German law.]
(iii) [Hong Kong
each Underwriter represents and agrees that it has not, directly or
indirectly, offered or sold and will not, directly or indirectly, offer or
sell in Hong Kong, by means of any document, any Class A Certificates other
than to persons whose ordinary business it is to buy or sell shares or
debentures, whether as principal or agent, or in circumstances which do not
constitute an offer to the public within the meaning of the Companies
Ordinance (Cap. 32) of Hong Kong. Each Underwriter further represents and
agrees that, unless it is a person who is permitted to do so under the
securities laws of Hong Kong, it has not issued, or had in its possession
for the purposes of issuing, and it will not issue, or have in its
possession for the purposes of issuing, any advertisement, invitation or
document relating to Class A Certificates other than with respect to Class
A Certificates intended to be disposed of to persons outside Hong Kong or
to persons whose business involves the acquisition, or disposal or holding
of securities, whether as principal or agent.]
(iv) General
(A) Each Underwriter represents and agrees that it will comply
with all applicable laws and regulations in each jurisdiction
in which it purchases, offers or sells Class A Certificates or
possesses or distributes the Prospectus or any other offering
material and will obtain any consent, approval or permission
required by it for the purchase, offer or sale by it of Class
A Certificates under the laws and regulations in force in any
jurisdiction to which it is subject or in which it makes such
purchases, offers or sales and none of the Transferor, TMCC
or any other Underwriter shall have any responsibility
therefor;
(B) No action has been or will be taken by such Underwriter that
would permit a public offering of the Class A Certificates or
possession or distribution of any offering material in
relation to the Class A Certificates in any jurisdiction
where action for that purpose is required unless the
Transferor or TMCC has agreed to such actions and such actions
have been taken; and
(C) Each Underwriter represents and agrees that it will not offer,
sell or deliver any of the Class A Certificates or distribute
any such offering material in or from any jurisdiction except
under circumstances which will result in compliance with
applicable laws and regulations and which will not impose any
obligation on the Transferor or TMCC or the Underwriters.
27
Such Underwriter acknowledges that it is not authorized to
give any information or make any representations in relation
to the Class A Certificates other than those contained or
incorporated by reference in the Prospectus for the Class A
Certificates and such additional information, if any, as the
Transferor or TMCC shall, in writing, provide to and authorize
such Underwriter so to use and distribute to actual and
potential purchasers of Class A Certificates;
(b) The Underwriters agree to provide a letter as soon as practicable
after the Closing Date substantially to the effect that, based on a thorough
survey of the distribution of the Class A-1, Class A-2 and Class A-3
Certificates, the Underwriters have calculated that each Class of such
Certificates has been distributed to more than 100 investors who are independent
of the Securitization Trust, the Titling Trust, the Transferor and TMCC and each
other.
(c) The Underwriters shall provide the Transferor and TMCC from time to
time (but no less frequently than weekly), information with respect to the
amounts and prices at which the Class A Certificates are sold to investors to be
used solely for transmission to the staff of the Commission as correspondence
(i.e., not publicly available).
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the [ ] without regard to any otherwise
applicable principles of conflicts of laws.
28
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us one of the counterparts duplicate hereof, whereupon
it will become a binding agreement between the Transferor and TMCC and the
Underwriters in accordance with its terms.
Very truly yours,
TOYOTA MOTOR CREDIT CORPORATION
By:
---------------------------------------
Name:
Title:
TOYOTA LEASING, INC.
By:
---------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written.
[ ]
By:
---------------------------------------
Name:
Title:
For itself and as Representative of the other Underwriters named in Schedule I
hereto.
29
SCHEDULE I
Principal Amount of Principal Amount of Class Principal Amount of Class
Class A-1 A-2 A-3
Name of Underwriter
Certificates Certificates Certificates
[ ]. . . .
[ ]. . . .
[ ]. . . .
[ ]. . . .
[ ]. . . .
[ ]. . . .
[ ]. . . .
[ ]. . . .
Total. . . . . . . . . . .
