EXHIBIT 10.4
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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
FIRST BANK NATIONAL ASSOCIATION,
as Trust Agent
Dated as of _______________, 1997
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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................................................. 5
ARTICLE FOUR
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING OF CONTRACTS
IN 1997-A SUBI PORTFOLIO
SECTION 4.01. Servicer Bound by Trust Agreement...................... 5
SECTION 4.02. Collection of Monthly Payments and Remittances;
Application of Proceeds; Accounts..................... 6
SECTION 4.03. Records................................................ 11
SECTION 4.04. Collection and Application of Security Deposits........ 12
SECTION 4.05. Advances............................................... 12
SECTION 4.06. Payment of Certain Fees And Expenses; No Offset........ 13
SECTION 4.07. Servicing Compensation................................. 13
SECTION 4.08. Repossession And Sale of Leased Vehicles............... 14
SECTION 4.09. Servicer to Act on Behalf of Trustee................... 15
SECTION 4.10. Indemnification by Servicer............................ 17
SECTION 4.11. Third Party Claims..................................... 17
SECTION 4.12. Insurance Policies..................................... 17
SECTION 4.13. Servicer Not to Resign; Assignment..................... 18
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SECTION 4.14. Obligor Insurance Coverage in Respect of Leased
Vehicles.............................................. 19
SECTION 4.15. Corporate Existence; Status; Merger.................... 19
ARTICLE FIVE
STATEMENTS AND REPORTS
SECTION 5.01. Reporting by the Servicer.............................. 20
SECTION 5.02. Annual Accountants' Reports............................ 21
SECTION 5.03. Other Certificates And Notices From Servicer........... 21
SECTION 5.04. Tax Returns............................................ 21
ARTICLE SIX
DEFAULT
SECTION 6.01. Events of Servicing Termination; Termination
of Servicer as to 1997-A SUBI Portfolio............... 22
SECTION 6.02. No Effect on Other Parties............................. 23
ARTICLE SEVEN
MISCELLANEOUS
SECTION 7.01. Termination of Agreement............................... 23
SECTION 7.02. Amendment.............................................. 23
SECTION 7.03. Governing Law.......................................... 24
SECTION 7.04. Notices................................................ 24
SECTION 7.05. Severability........................................... 24
SECTION 7.06. Inspection and Audit Rights............................ 25
SECTION 7.07. Article And Section Headings........................... 25
SECTION 7.08. Execution in Counterparts.............................. 25
SECTION 7.09. Rights Cumulative...................................... 25
SECTION 7.10. Further Assurances..................................... 26
SECTION 7.11. Third-party Beneficiaries.............................. 26
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
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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
___________, 1997, among TMTT, INC., a Delaware corporation, as Titling
Trustee of TOYOTA LEASE TRUST, a Delaware business trust (the "Titling
Trust"), TOYOTA MOTOR CREDIT CORPORATION, a California corporation, as
Servicer, and FIRST BANK NATIONAL ASSOCIATION, as Trust Agent.
RECITALS
A. TMCC, the Titling Trustee and, for certain limited purposes set forth
therein, First Bank, 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 ________, 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 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 First Bank National Association, as 1997-A
Securitization Trustee, are entering into that certain Securitization Trust
Agreement, dated as of _________, 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, in
connection with a Securitized Financing thereof by the Transferor.
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 or
the Annex of Supplemental Definitions attached hereto 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 are currently owned and such
business is presently conducted, and had at all relevant times, and now
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has, corporate power, authority and legal right to acquire, own, sell and
service the 1997-A 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 1997-A 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 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 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 Trust Assets not then allocated, or
reserved for allocation to, any other SUBI Portfolio or Sub-Trust. Such
Subsequent Contracts and 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 Subsequent Cutoff Date approximately equal to, but 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 identify such Subsequent Contracts,
related Leased Vehicles and other associated 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 Contracts and Leased Vehicles to be
specifically identified on the revised Schedule of Contracts and Leased Vehicles
to be delivered pursuant to Section 5.01 hereof. On each such Transfer Date,
such Subsequent Contracts, Leased Vehicles and other associated 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.
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(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 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
Rated Certificates in respect of the 1997-A Certificates, 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 ____ 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 __%, based on the characteristics of each
1997-A Contract as of its date of origination.
(c) On each Transfer Date, the Servicer shall transfer from the 1997-A
SUBI Collection Account to the Lease Funding 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.
(d) In the circumstances set forth in Section 17.02 of the 1997-A SUBI
Supplement, the Servicer shall transfer from the 1997-A SUBI Collection Account
to the 1997-A SUBI Lease Account the amounts specified therein of the 1997-A
SUBI Supplement.
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SECTION 3.03. SERVICER PAYMENT IN RESPECT OF CERTAIN CONTRACTS AND LEASED
VEHICLES.
(a) The representations and warranties of the Servicer set forth in
Section 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 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 effective 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 the representation or warranty was incorrect as of the time
effective. 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 an
amount so 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 7.01(b) of the Titling Trust Agreement, 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
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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.
ARTICLE FOUR
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING OF CONTRACTS
IN 1997-A SUBI PORTFOLIO
SECTION 4.01. SERVICER BOUND BY 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 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, 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 the 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 Account shall be deemed to refer more specifically to a
1997-A SUBI Lease 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 1997-A Contract; and (ii) cause each Obligor to make all payments in
respect of the 1997-A Contract to which such Obligor is a party or otherwise
obligated.
(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 deferrals or
otherwise extend the Maturity Date of a Contract more than a total of ___
times or by more than __ months in the aggregate over the life of such
Contract, and may not extend the Maturity Date of any 1997-A Contract to
occur later than the last day of the Collection Period related to the Final
Scheduled Distribution Date; provided, however, that if the Servicer extends
the Maturity Date of a 1997-A Contract by more than a total of __ times or by
more than __ months in the aggregate as described above, or extends the
Maturity Date so that the extended Maturity Date will occur later than the
last day of the Collection Period relating to the Final Scheduled 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 TLI), Prepayments, Payments Ahead or any other payments
by or on behalf of any Obligor or otherwise 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 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(b) of this
1997-A SUBI Servicing Supplement with regard to Liquidation Proceeds and
Insurance Proceeds:
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(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 (but in any event within two
Business Days) 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, Insurance Proceeds, 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 accompanied by all
necessary Payment Information, the Servicer shall, within two Business Days
after such receipt, (A) enter the Payment Information in its computer system,
(B) subject to Section 7.01 of the Titling Trust Agreement, segregate all such
funds from other SUBI Sub-Trusts, and (C) subject to Section 7.01 of the Titling
Trust Agreement, and except as set forth in this 1997-A SUBI Servicing
Supplement, 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) As to such funds received by the Servicer that are not
accompanied by all Payment Information, the Servicer shall enter into its
computer system such Payment Information as is available from time to time.
Upon receipt of the remaining Payment Information, the Servicer shall, within
two Business Days after such receipt, (A) enter the Payment Information in its
computer system and (B) segregate all such funds as set forth in clause (ii)
above. The Servicer shall use its reasonable commercial efforts to obtain any
missing Payment Information as soon as practicable after receipt of any such
funds.
(iv) 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) subject to Section 7.01 of the Titling Trust Agreement, deposit
such Payment Ahead into the 1997-A SUBI Collection Account.
(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 Expenses as
provided in Section 4.02(i).
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(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 1997-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.
(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. The Servicer, on behalf of the 1997-A
Securitization Trustee, shall establish and maintain (i) the Reserve Fund as set
forth in Section 3.02 of the 1997-A Securitization Trust Agreement, and (ii)
the 1997-A Certificate Account as set forth in Section 3.03 of the 1997-A
Securitization Trust Agreement.
(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 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 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
Contacts or 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
Contracts) from Collections with respect to the related Contracts (whether or
not as separate payments thereof by the related Obligors) or from amounts
realized upon the final disposition of the related Leased Vehicle. 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
10
Advance, rather than being netted from Collections by the Servicer; or (iii)
any amount of unreimbursed Advances are reasonably determined by the Servicer
to be Nonrecoverable Advances, then, on the related Deposit Date, (y) the
Servicer shall 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 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, 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, but in each case will notify the Titling Trustee and
1997-A Securitization Trustee in writing of such action and such amounts at
the time of such reimbursement.
(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 and 1997-A SUBI
Supplement. 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 Titling Trustee 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 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) investments in TMCC Demand Notes
which may mature on the Business Day immediately preceding (x) in the case of
TMCC Interest Demand Notes, the next succeeding Certificate Payment Date and (y)
in the case of TMCC Principal Demand Notes, the next succeeding Targeted
Maturity Date.
(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 an alternative remittance
schedule with respect to Collections to be deposited in the 1997-A SUBI
Collection Account (including but not limited to the use of an alternative
remittance schedule pursuant to which the obligations of the Servicer to make
such remittances are secured by a Servicer Letter of Credit satisfactory to each
such Rating Agency) 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 may be so modified
without the consent
11
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 the Residual Value
Insurance Policy) 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.
(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 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
12
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 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
an under the terms of the related Contract apply such Security Deposit against
unpaid amounts owed under the Contract, damages to the vehicle, excess wear and
tear charges, expenses in connection with the refurbishment and disposal of
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 1997-A Contract or 1997-A Leased Vehicle, the related
Security Deposit or such portion shall be deemed to be Liquidation Proceeds. On
at least a monthly basis, 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 Contract has not been
13
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 Servicer shall have reasonably determined that any
such Advance, if made, would constitute a Nonrecoverable Advance. Any such
determination shall be evidenced by an Officer's Certificate 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 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 in Section 3.01(b) of 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:
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(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 administration fees or
similar charges paid by any Obligor pursuant to a 1997-A Contract during
the related Collection Period;
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 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)(vii) 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, 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
15
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:
(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 1997-A Leased Vehicle to a motor vehicle dealer for
resale or selling a 1997-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.
The foregoing notwithstanding, 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, and
the Servicer, as "Grantee" thereunder, with full power of substitution, if a
Servicer conducts such a substitution it shall give prompt written notice
thereof to the Titling Trustee.
16
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 TRUSTEE.
(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, including (in the case of clauses (ii) and (iv))
such licenses, permits, and other Filings as are required for 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, as contemplated
by Section 4.01 of this 1997-A SUBI Servicing Supplement. The Servicer shall
also identify any surety bonds
17
or other ancillary 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 agrees to indemnify, defend and hold harmless the 1997-A
Securitization Trustee and its agents for any and all liabilities, losses,
damages and expenses (including without limitation reasonable fees and expenses
of counsel) that may be incurred by the 1997-A Securitization Trustee or its
agents 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. 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.
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, 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 Trust Asset (whether or not constituting a 1997-A SUBI Asset).
SECTION 4.12. INSURANCE POLICIES.
18
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 premiums shall constitute Administrative Expenses): (i) each
Contingent and Excess Liability Insurance Policy unless (A) a replacement
insurance policy or policies 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
insurance certificates certifying that each of the particular policies it is
required to maintain pursuant to this Section remains 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
that by reason of a change in applicable legal requirements the continued
performance by the Servicer of its duties 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
19
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), or the obligations of the Servicer
pursuant to Sections 3.03(a), 4.04, 4.06(a), 4.08 or 4.10 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 must obtain from each Rating Agency a letter
approving each 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 6.01
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 best efforts to ensure that the Obligor under
each 1997-A Contract shall have, and maintain in full force and effect during
the term of such Contract, a comprehensive, collision and property damage
insurance policy covering the actual cash value of the related Leased Vehicle
and naming the Titling Trustee 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 Trustee as an
additional insured. 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 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 promptly deposit into the 1997-A
SUBI Collection Account all amounts that would have been payable under such
policy if there were no deductible (not to exceed the amount of such deductible)
less amounts that are payable under any outstanding policy of primary insurance
maintained (or that would be payable under any such policy maintained) as
required under the related Contract. 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.
20
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.
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
(a) cause to be delivered to the Titling Trustee a supplement to the Schedule of
1997-A Contracts and 1997-A Leased Vehicles containing data reflecting the
addition or removal of Contracts or Leased Vehicles from the 1997-A SUBI
Portfolio as of the last day of the prior calendar month, (b) 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 or
Officer's Certificates 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
21
the Schedule of 1997-A Contracts and 1997-A Leased Vehicles containing data
reflecting the addition or removal of Contracts or Leased Vehicles from the
1997-A SUBI Portfolio as of the last day of the prior 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, 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.
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 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,
stating that such Independent Accountants have examined the annual financial
statements of the Servicer in accordance with generally accepted auditing
standards, which examination included such tests of the accounting records and
such other auditing procedures as they considered necessary in the
circumstances, and that as a part of that examination, certain documents and
records of the Servicer relating to the servicing of the 1997-A Contracts were
reviewed and tested and nothing came to the attention of such Independent
Accountants that caused them to believe that the provisions of this 1997-A SUBI
Servicing Supplement were not being complied with, except for (a) such
exceptions as such firm shall believe to be immaterial, and (b) such other
exceptions as shall be set forth in such statement.
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 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
22
continuing, or (ii) if such a default has occurred and is continuing, specifying
such default and the nature and status thereof.
(b) On or prior to each Determination Date, 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 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 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 Titling Trustee, on behalf of the Titling Trust, may remedy such
Event of Servicing Termination, or the Titling Trustee may, and at the direction
of any pledgee of a UTI Pledge 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
23
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 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 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 TLI, Inc. 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.
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ARTICLE SEVEN
MISCELLANEOUS
SECTION 7.01. TERMINATION OF AGREEMENT.
(a) In connection with any purchase by TLI, Inc. 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 TLI,
Inc.'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 15.05 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 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 (as defined in the
1997-A Securitization Trust Agreement) 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 California,
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.
25
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, 00000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Treasury Department
(telecopier no. (000) 000-0000); and (b) if to the Trustee, at 000 Xxxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (Telecopier No. (000) 000-0000), 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 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.
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.
26
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.
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.
[SIGNATURES ON NEXT PAGE]
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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:
TMTT, INC.,
as trustee of TOYOTA LEASE TRUST
By:
--------------------------------
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION,
as Trust Agent
By:
--------------------------------
Name:
Title:
Acknowledged and Agreed:
FIRST BANK NATIONAL ASSOCIATION,
as 1997-A Securitization Trustee
By:
-------------------------------
Name:
Title:
28
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
EXHIBIT B
FORM OF SERVICER'S CERTIFICATE
B-1
EXHIBIT C
FORM OF POWER OF ATTORNEY
C-1
