EXHIBIT 10.1
-------------------------------------------------------------------------------
TOYOTA LEASE TRUST
(a Delaware Business Trust)
_______________
AMENDED AND RESTATED
TRUST AND SERVICING AGREEMENT
Among
TOYOTA MOTOR CREDIT CORPORATION,
TMTT, INC.
and
(For certain limited purposes only)
FIRST BANK NATIONAL ASSOCIATION
_______________
Dated as of October 1, 1996
--------------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
CREATION OF TITLING TRUST; GRANTOR'S INTEREST
SECTION 2.01 Creation of Titling Trust. . . . . . . . . . . . . . . . . . . 1
SECTION 2.02 Business Trust . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.03 Offices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.04 Purposes.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.05 Document Execution and Performance.. . . . . . . . . . . . . . 3
SECTION 2.06 Additional Beneficiaries.. . . . . . . . . . . . . . . . . . . 3
SECTION 2.07 Tax Reporting and Characterization.. . . . . . . . . . . . . . 4
ARTICLE III
BENEFICIAL INTERESTS IN THE TITLING TRUST
SECTION 3.01 Sub-Trusts: Creation of UTI and SUBIs . . . . . . . . . . . . 4
SECTION 3.02 Beneficiary Liabilities . . . . . . . . . . . . . . . . . . . 6
SECTION 3.03 Insurance Policies. . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.04 Allocation of Liabilities and Indemnification . . . . . . . . 8
ARTICLE IV
THE SERVICER
SECTION 4.01 Duties of the Servicer . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.02 Liability of Servicer; Indemnities.. . . . . . . . . . . . . . 9
SECTION 4.03 Merger, Consolidation, or Assumption of the Obligations of,
the Servicer . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.04 Limitation on Liability of Servicer and Others. . . . . . . . 10
SECTION 4.05 Servicer Not to Resign; Delegation of Duties. . . . . . . . . 11
SECTION 4.06 Servicing Compensation. . . . . . . . . . . . . . . . . . . . 12
SECTION 4.07 Powers of Attorney. . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.08 Protection of Title to Titling Trust. . . . . . . . . . . . . 13
ARTICLE V
PAYMENTS
SECTION 5.01 Payments from Titling Trust Assets Only . . . . . . . . . . . 13
SECTION 5.02 Manner of Payment . . . . . . . . . . . . . . . . . . . . . . 14
-i-
ARTICLE VI
THE TITLING TRUSTEE
SECTION 6.01 Duties and Powers of Titling Trustee . . . . . . . . . . . . 14
SECTION 6.02 Duty of Care.. . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.03 Certain Matters Affecting the Titling Trustee. . . . . . . . 16
SECTION 6.04 Titling Trustee Not Liable for Certificates or Losses. . . . 18
SECTION 6.05 Indemnity of Titling Trustee and Trust Agents. . . . . . . . 19
SECTION 6.06 Titling Trustee's Right Not to Act.. . . . . . . . . . . . . 19
SECTION 6.07 Qualification of Titling Trustee.. . . . . . . . . . . . . . 20
SECTION 6.08 Resignation or Removal of Titling Trustee. . . . . . . . . . 20
SECTION 6.09 Successor Titling Trustee. . . . . . . . . . . . . . . . . . 20
SECTION 6.10 Merger or Consolidation of Titling Trustee.. . . . . . . . . 21
SECTION 6.11 Appointment of Co-Titling Trustee, Separate Titling Trustee,
or Nominee . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.12 Representations, Warranties and Covenants of Titling Trustee 23
SECTION 6.13 Titling Trustee's Fees and Expenses. . . . . . . . . . . . . 24
SECTION 6.14 No Petition. . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.15 Stock of TMTT, Inc.. . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VII
ACCOUNTS; CASH FLOWS; PERMITTED INVESTMENTS
SECTION 7.01 Accounts.. . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.02 Relationship to Securitized Financings.. . . . . . . . . . . 28
SECTION 7.03 SUBI Lease Funding Accounts. . . . . . . . . . . . . . . . . 28
SECTION 7.04 Rebalancing After Third Party Claim. . . . . . . . . . . . . 29
ARTICLE VIII
TERMINATION
SECTION 8.01 Termination of the Titling Trust.. . . . . . . . . . . . . . 29
SECTION 8.02 Termination at the Option of Beneficiary. . . . . . . . . . 30
SECTION 8.03 Titling Trustee Actions Upon Termination. . . . . . . . . . 30
-ii-
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 9.02 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 9.03 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 9.04 Severability of Provisions.. . . . . . . . . . . . . . . . . 31
SECTION 9.05 Counterparts.. . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 9.06 Successors and Assigns. . . . . . . . . . . . . . . . . . . 31
SECTION 9.07 Table of Contents and Headings. . . . . . . . . . . . . . . 31
EXHIBITS
EXHIBIT A -- Form of Certificate of Trust. . . . . . . . . . . . . . . . . A-1
EXHIBIT B -- Form of UTI Supplement, including
Form of UTI Certificate . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C -- Form of SUBI Supplement, including
Form of SUBI Certificate . . . . . . . . . . . . . . . . . . C-1
-iii-
AMENDED AND RESTATED TRUST AND SERVICING AGREEMENT, dated as of October
1, 1996 among TOYOTA MOTOR CREDIT CORPORATION, a California corporation (as
grantor, initial beneficiary and servicer) and TMTT, INC., a Delaware
corporation, as Titling Trustee, and, for the limited purposes set forth
herein, FIRST BANK NATIONAL ASSOCIATION, a national banking association, as
Trust Agent, amending and restating in its entirety the Trust and Servicing
Agreement dated as of October 1, 1996 among the same parties, and herein
referred to as the "Titling Trust Agreement" or this "Agreement".
IN CONSIDERATION of the mutual agreements herein contained, and of other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. For all purposes of this Titling Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, capitalized terms used and not otherwise defined herein
shall have the meanings ascribed thereto in the Annex of Definitions attached
hereto for all purposes of this Titling Trust Agreement. In the event of any
conflict between a definition set forth herein and that set forth in the Annex
of Definitions, that set forth herein shall prevail. All terms used in this
Titling Trust Agreement include, as appropriate, all genders and the plural as
well as the singular. All references such as "herein", "hereof" and the like
shall refer to this Titling Trust Agreement as a whole and not to any particular
article or section within this Titling Trust Agreement. All references such as
"includes" and variations thereon shall mean "includes without limitation" and
references to "or" shall mean "and/or". Any reference to the "Titling Trustee,
acting on behalf of the Titling Trust", or words of similar import, shall be
deemed to mean the Titling Trustee, acting on behalf of Toyota Lease Trust and
all beneficiaries thereof.
ARTICLE II
CREATION OF TITLING TRUST; GRANTOR'S INTEREST
SECTION 2.01 CREATION OF TITLING TRUST.
There is hereby formed in accordance with the provisions of the Delaware
Act, a Delaware business trust to be known as the Toyota Lease Trust. The
Titling Trustee is hereby authorized and vested with the power and authority to
make and execute contracts, instruments, certificates, agreements and other
writings on behalf of the Titling Trust as set forth herein and to xxx and be
sued on behalf of the Titling Trust.
-1-
The Titling Trustee does hereby accept and agree to hold in trust, for
the benefit of the UTI Beneficiary and such other Persons as may become
Beneficiaries hereunder from time to time, all Titling Trust Assets conveyed
or to be conveyed pursuant to Section 3.01, and all monies and proceeds that
may be received thereunder, subject to the terms of this Agreement.
SECTION 2.02 BUSINESS TRUST.
It is the intention of the parties hereto that the Titling Trust be a
business trust under the Delaware Act and that this Agreement shall
constitute the governing instrument of the Titling Trust. Effective as of
the date hereof, the Titling Trustee shall have all rights, powers and duties
set forth herein and in the Delaware Act with respect to accomplishing the
purposes of the Titling Trust. The Titling Trustee shall file or cause to be
filed a certificate of trust for the Titling Trust pursuant to the Delaware
Act in substantially the form of Exhibit A attached hereto.
SECTION 2.03 OFFICES. The principal office of the Titling Trust, and
such additional offices as the Titling Trustee may establish, shall be
located at such place or places inside or outside of the State of Delaware as
the Titling Trustee may designate from time to time by written notice to each
Beneficiary and the Servicer. Initially, such principal office shall be in
the care of the Titling Trustee at offices of Toyota Motor Credit Corporation
set forth in Section 9.03.
SECTION 2.04 PURPOSES.
(a) The purposes of the Titling Trust are to: (i) take assignments and
conveyances of, hold in trust and release its ownership interest in the Titling
Trust Assets as nominee holder of legal title and for the benefit of, and at the
direction of, the Beneficiaries; (ii) engage in any of the other activities
described or authorized in this Agreement, any UTI Supplement or SUBI
Supplement, or in any amendment to this Agreement or any UTI Supplement or SUBI
Supplement; and (iii) engage in any and all activities that are necessary or
appropriate to accomplish the foregoing or that are incidental thereto or
connected therewith. The Titling Trust shall not engage in any activity other
than in connection with the foregoing or other than as required or authorized by
applicable law or (subject to the terms of this Agreement) the documents
relating to a Securitized Financing.
In consideration of the receipt of beneficial interests in the Titling
Trust described in Article III, the Grantor shall from time to time assign,
transfer, contribute or convey, or cause to be assigned, transferred,
contributed or conveyed, the Titling Trust Assets to the Titling Trust. The
Titling Trust, and the Titling Trustee on behalf of the Titling Trust, shall
hold in trust all legal rights and interests in the Titling Trust Assets for
the benefit of the Beneficiaries.
The UTI Beneficiary may from time to time designate the Titling Trust or
the Titling Trustee, on behalf of the Titling Trust, as the nominee holder of
legal title to Contracts that are Eligible Contracts, the related Leased
Vehicles and other Titling Trust Assets. In connection therewith, such Leased
Vehicles will be titled in the name of the Titling Trust or the Titling Trustee,
on behalf of
-2-
the Titling Trust, and the Titling Trustee will accept such designation and,
subject to the other terms of this Agreement, will permit the related
Certificates of Title to be titled in the name of the Titling Trust or the
Titling Trustee, on behalf of the Titling Trust. Legal title to all Titling
Trust Assets shall be vested in the Titling Trust or the Titling Trustee, on
behalf of the Titling Trust, as a separate legal entity except to the extent
otherwise specifically provided herein or in any other document relating to a
Securitized Financing or where applicable state law requires any Titling
Trust Asset to be vested otherwise, in which case the Titling Trustee will,
at the direction of the UTI Beneficiary or the Servicer, cause legal title to
be held as required thereby.
(b) The Titling Trustee hereby accepts and agrees to hold in trust all
Titling Trust Assets conveyed to it hereunder, for the use and benefit of, and
as nominee holder of legal title for, the Beneficiaries and any successors and
assigns as may be designated pursuant to the terms hereof or as may otherwise
succeed to the rights of a Beneficiary hereunder. The Servicer may appoint one
or more nominees to hold title to some or all of the Titling Trust Assets in the
name of such nominee title holder for the sole and exclusive benefit of the
Titling Trust and, upon the appointment of such nominee title holder(s), the
Titling Trustee will transfer title to all or such portion of the Titling Trust
Assets as directed by the Servicer.
SECTION 2.05 DOCUMENT EXECUTION AND PERFORMANCE. Each Beneficiary hereby
authorizes and directs the Titling Trustee, and the Titling Trustee hereby
agrees to: (i) at the request of a Beneficiary or the Servicer, execute and
deliver all agreements, instruments or documents necessary or advisable to
accept, or cause the Titling Trust to accept, the designation as nominee holder
of legal title to Contracts, Leased Vehicles and other Titling Trust Assets as
described herein and cause the related Certificates of Title to be titled in the
name of the Titling Trust or the Titling Trustee, on behalf of the Titling
Trust; (ii) take action that is required to be taken by the Titling Trustee as
specified in the documents relating to a Securitized Financing or at the
direction of the relevant Beneficiary in accordance with applicable law; (iii)
exercise its rights and perform its duties as Titling Trustee as specified in
the documents relating to a Securitized Financing; (iv) at the direction of a
Beneficiary (a) release, discharge, sell, assign, transfer, pledge, convey or
otherwise dispose of any right, title or interest in and to any portion of the
Titling Trust Assets comprising the related Sub-Trust (or to cause the Titling
Trust to take any such action), (b) amend or revoke the terms hereof with
respect to all or any portion of the related Titling Trust Assets or affecting
any other provision hereof; and (v) appoint the servicer as the attorney in fact
for the Titling Trust as contemplated by this Titling Trust Agreement and the
related SUBI Servicing Supplement and direct the Servicer to perform such
administrative duties on behalf of the Titling Trust as are set forth herein.
SECTION 2.06 ADDITIONAL BENEFICIARIES. Notwithstanding any other
provision of this Agreement, the UTI Beneficiary and the Servicer may in writing
designate additional Beneficiaries who shall have the right to designate the
Titling Trust or the Titling Trustee, on behalf of the Titling Trust, as nominee
holder of legal title to Contracts, Leased Vehicles and other Titling Trust
Assets and cause the related Certificates of Title to be titled in the name of
the Titling Trust or the Titling Trustee, on behalf of the Titling Trust. No
Person shall become a Beneficiary until it has delivered
-3-
to the parties hereto an agreement in form and substance satisfactory to the
Titling Trustee and the Servicer pursuant to which it agrees to become a
party to this Agreement.
SECTION 2.07 TAX REPORTING AND CHARACTERIZATION.
Consistent with the treatment of the Titling Trust for tax purposes as a
mere nominee holder of legal title of the Titling Trust Assets with respect
to each Sub-Trust, unless otherwise required by appropriate taxing
authorities, the Titling Trust will not file or cause to be filed any annual
or other tax returns with respect to the Titling Trust. Consistent with the
treatment of the UTI Sub-Trust as a mere agent of the UTI Beneficiary for tax
purposes, unless otherwise required by appropriate taxing authorities, the
UTI Beneficiary will not file or cause to be filed any annual or other tax
returns with respect to the UTI Sub-Trust. In the event that the Titling
Trust or the UTI Sub-Trust or the Titling Trustee on behalf of the Titling
Trust or the UTI Sub-Trust is required to file any tax returns, the Servicer
will prepare or cause to be prepared the returns for the Titling Trust, the
Titling Trustee or the UTI Sub-Trust and will deliver such returns to the
Titling Trustee for signature, unless applicable law requires one or more
Beneficiaries to sign such returns, in which case the Servicer will deliver
such returns to such Beneficiary or Beneficiaries.
ARTICLE III
BENEFICIAL INTERESTS IN THE TITLING TRUST
SECTION 3.01 SUB-TRUSTS: CREATION OF UTI AND SUBIS.
(a) Subject to the other provisions of this Section, to the extent
designated by the UTI Beneficiary from time to time, the Titling Trustee
shall establish one or more Sub-Trusts under this Agreement and allocate the
Titling Trust Assets identified by the UTI Beneficiary to each such
Sub-Trust, and the Titling Trustee shall hold such Titling Trust Assets as
Titling Trustee hereunder for the benefit, and subject to the direction, of
the Beneficiaries of such Sub-Trust. Each Sub-Trust shall have the name and
beneficiaries designated by the UTI Beneficiary and shall be a separate
series of the Titling Trust pursuant to Section 3806(b)(2) of the Delaware
Act. The Servicer shall maintain separate and distinct records for each
Sub-Trust, and the Titling Trust Assets allocated to such Sub-Trust shall be
held and accounted for separately from all other Titling Trust Assets.
Subject to the right of the Titling Trustee to allocate certain Liabilities,
charges and reserves as provided herein and in any UTI Supplement or SUBI
Supplement, and in accordance with Section 3804(a) of the Delaware Act or to
the extent otherwise permitted by applicable law, all debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a Sub-Trust shall be enforceable against the Titling Trust Assets
allocated to such Sub-Trust only, and not against the Titling Trust Assets
allocated to any other Sub-Trust. Every note, bond, contract or other
undertaking issued by or on behalf of a Sub-Trust (including any UTI
Certificate or SUBI Certificate) shall include a recitation limiting the
obligation represented thereby to the related Sub-Trust and the Titling Trust
Assets allocated thereto. The Certificate of Trust for the Titling Trust
-4-
shall include notice of the limitation of liabilities of each Sub-Trust of
the Titling Trust, in accordance with Section 3804(a) of the Delaware Act.
(b) In accordance with Section 3806(b) of the Delaware Act, all Titling
Trust Assets that have not been allocated to a SUBI Sub-Trust shall
constitute, and be defined as, the "UTI Assets" and shall be, and be deemed
to be, identified to and assets of the UTI Sub-Trust separate from the assets
of any SUBI Sub-Trust within the Titling Trust. The UTI Sub-Trust shall be a
separate series of the Titling Trust pursuant to Section 3806(b)(2) of the
Delaware Act. In accordance with Section 3.01(a), the Servicer shall maintain
separate and distinct records for the UTI Sub-Trust and the UTI Assets shall
be held and accounted for separately from all other Titling Trust Assets.
The Titling Trustee shall distribute to or upon the order of the UTI
Beneficiary, a UTI representing an undivided interest in the UTI Sub-Trust
and the UTI Assets which may be subdivided and will be represented by one or
more UTI Certificates issued pursuant to one or more related UTI Supplements.
Except as otherwise provided for herein or in a UTI Supplement, all income
and other amounts with respect to the UTI shall be distributed or retained by
the Titling Trustee as directed from time to time by the UTI Beneficiary.
(c) The Titling Trustee shall from time to time, as directed in writing
by the UTI Beneficiary, and subject to Section 3.01(d), identify or cause to
be identified on the books and records of the Titling Trust one or more
separate SUBI Sub-Trusts to be accounted for separately from each other and
from the UTI Sub-Trust within the Titling Trust, and will identify and
allocate, or cause to be identified and allocated, to such SUBI Sub-Trust on
such books and records certain Titling Trust Assets that are not then
allocated to another SUBI Sub-Trust. Upon such allocation, such related SUBI
Assets shall no longer be assets of, or allocated to, the UTI (unless and
until specifically reallocated to the UTI from that SUBI in accordance with
the related SUBI Supplement). Each SUBI shall constitute a separate series
of the Titling Trust pursuant to Section 3806(b)(2) of the Delaware Act and
shall represent the beneficial interest in such SUBI and the SUBI Assets
allocated thereto from time to time. Each SUBI shall be represented by one
or more separate SUBI Certificates issued pursuant to the related SUBI
Supplement. The Titling Trustee shall issue each SUBI Certificate to or upon
the order of the UTI Beneficiary.
(d) Notwithstanding anything to the contrary contained in this Section,
the Titling Trustee shall create a new SUBI Sub-Trust and SUBI and issue to
or upon the order of the UTI Beneficiary one or more SUBI Certificates
evidencing such SUBI by executing and delivering a SUBI Supplement only (i)
upon receipt of a certification of the UTI Beneficiary, dated as of the date
of the issuance of the related SUBI Certificate, to the effect that, as of
the date of such certificate, and after giving effect to the creation of the
SUBI Sub-Trust, the transfer to the UTI Beneficiary of any SUBI Certificates
in connection therewith and the application by the UTI Beneficiary of any net
proceeds from any Securitized Financing involving such SUBI and such SUBI
Certificates, no Event of Servicing Termination or other Early Amortization
Event (or event that, with the passage of time or the giving of notice, or
both, could constitute an Event of Servicing Termination or other Early
Amortization Event), in each case as defined in the relevant Transaction
Documents, shall exist under any Securitized Financing or other agreement or
obligation secured by a UTI Pledge, and (ii)
-5-
if, as of the date of the issuance of the SUBI Certificates, the Titling
Trustee shall not have received from any pledgee of a UTI Pledge a notice
asserting any such default under any Securitized Financing or other agreement
or obligation so secured.
(e) The UTI Beneficiary shall not further transfer, assign, or pledge
any beneficial interest in the Titling Trust except as contemplated herein.
The UTI Beneficiary shall at all times maintain any minimum net worth
specified in the related UTI Supplement or any related SUBI Supplement.
(f) Each SUBI Beneficiary shall maintain with respect to the SUBI
relating thereto any minimum interest in that SUBI and the related SUBI
Sub-Trust as may be required by the applicable SUBI Supplement. Each SUBI
Beneficiary shall at all times maintain any minimum net worth specified in
the related SUBI Supplement.
(g) Except to the extent specified in this Agreement or in any
applicable SUBI Supplement, interests in a SUBI or SUBI Certificate shall be
nontransferable, provided that all or any part thereof may be (i) transferred
and assigned to a special purpose subsidiary of TMCC or another vehicle
created for the purpose of a Securitized Financing involving a SUBI, or (ii)
assigned, either absolutely or collaterally, or pledged by the UTI
Beneficiary or the related SUBI Beneficiary to or in favor of a trustee for
one or more securitization trusts solely for the purpose of securing or
otherwise facilitating one or more Securitized Financings, and provided
further that each such assignee or pledgee must (x) give a non-petition
covenant substantially similar to that set forth in Section 6.14, and (y)
execute an agreement between or among itself and each UTI Beneficiary and any
SUBI Beneficiary, to release all claims to the Titling Trust Assets allocated
to the UTI Sub-Trust or any other SUBI Sub-Trust and, in the event that such
release is not given effect, to fully subordinate all claims it may be deemed
to have against the Titling Trust Assets allocated thereto. In the event of
a sale or an absolute assignment, or upon foreclosure in the event of a
collateral assignment or pledge as contemplated in clause (ii), such
purchaser, assignee or pledgee shall be a SUBI Beneficiary in the manner and
to the extent set forth in the related SUBI Certificates so acquired and in
the applicable SUBI Supplement. If so specified in the related SUBI
Supplement, the foregoing provisions restricting the transfer of SUBI
Certificates may be waived upon delivery to the Titling Trustee and the UTI
Beneficiary of an Opinion of Counsel in form and scope reasonably
satisfactory thereto to the effect that a contemplated transfer of SUBI
Certificates will not have any material adverse effect upon the Titling
Trust, any Sub-Trust or the interests of any Beneficiary.
SECTION 3.02 BENEFICIARY LIABILITIES.
(a) The Beneficiary or Beneficiaries of each Sub-Trust shall, as to such
Sub-Trust but not as to any other Sub-Trust, each be jointly and severally
liable to third parties (including the Beneficiary or Beneficiaries of all other
Sub-Trusts) and indemnify, defend and hold harmless the Titling Trustee,
including its officers, directors, employees and agents, for all Liabilities
incurred in connection with the SUBI Assets of such Sub-Trust, including all
state and local taxes assessed
-6-
on the Titling Trustee or the Titling Trust or any such other Beneficiary
resulting from the allocation of Titling Trust Assets to such Sub-Trust.
(b) The UTI Beneficiary shall (to the extent necessary after giving
effect to Section 3.02(a)) indemnify, defend and hold harmless the Titling
Trustee, including its officers, directors, employees and agents, for all
Liabilities of the Titling Trust or the UTI Sub-Trust to third parties to the
same extent that the UTI Beneficiary would be liable if the Titling Trust or
the UTI Sub-Trust were a partnership formed under either of the Delaware
Partnership Acts and the UTI Beneficiary were a general partner thereof.
(c) As set forth in this Section, the Titling Trustee and its
successors, assigns, agents, officers, directors and employees shall be
indemnified, defended and held harmless with respect to any Liabilities
arising out of or in connection with the Titling Trustee's acceptance or
performance of the trusts and duties contained in this Titling Trust
Agreement and in any SUBI Supplement or related SUBI Servicing Supplement.
Notwithstanding the foregoing, in no event shall the Titling Trustee or its
officers, directors or employees, be indemnified, defended or held harmless
for any Liabilities incurred solely (i) by reason of the Titling Trustee's
willful malfeasance, bad faith or negligence or (ii) by reason of the Titling
Trustee's breach of its representations set forth in Section 6.12. The
Titling Trustee shall promptly notify the Beneficiaries of any claim for
which it may seek indemnity. Failure by the Titling Trustee to so notify the
Beneficiaries of a claim for which it seeks indemnification shall not relieve
the Beneficiaries of their obligations under this Section except to the
extent of Liabilities that the Beneficiaries could have avoided if notice had
been so provided.
(d) All third party creditors of the Titling Trust shall be deemed to be
third party beneficiaries for purposes of this Section. The indemnities
contained in this Section shall survive the resignation or termination of the
Titling Trustee, or the termination of this Agreement. Any amounts that are
paid to the Titling Trustee pursuant to this Section shall no longer be
deemed to be Titling Trust Assets immediately after such amounts have been
paid to the Titling Trustee. To the extent provided in this Section, the
Beneficiaries hereby waive the limited liability protection otherwise
afforded under the Delaware Act (including Section 3803 thereof) or any other
law.
SECTION 3.03 INSURANCE POLICIES.
(a) The Grantor will cause to be maintained, and shall not, without the
prior written consent of the Servicer, which consent may not be unreasonably
withheld, or, in the case of a rated Securitized Financing, unless otherwise
specified in the related SUBI Supplement, the consent of each Rating Agency,
cause the termination without replacement of, one or more contingent
liability, excess liability, physical damage and/or umbrella Insurance
Policies providing coverage against third-party claims that may be raised
against the Titling Trust, any Sub-Trust or the Titling Trustee, on behalf of
the Titling Trust or any Sub-Trust, with respect to any Leased Vehicle in an
amount at least equal to $100 million per occurrence, not subject to any
annual or aggregate cap on the number of claims payable, which policy or
policies may be a blanket insurance policy or policies and which policy or
policies may contemplate a per occurrence deductible of up to $ - million.
-7-
(b) The UTI Beneficiary shall cause each of the Contingent and Excess
Liability Insurance Policies referred to in Section 3.03(a) to name the
Titling Trustee or Titling Trust as additional insureds or loss payees.
SECTION 3.04 ALLOCATION OF LIABILITIES AND INDEMNIFICATION.
Notwithstanding any other provision of this Agreement, any Supplement or any
amendment hereto, (i) to the extent that a Liability, including any
indemnification obligation, shall be incurred or suffered with respect to, or
is attributable to, one or more Affected Trust Assets allocated to one or
more Sub-Trusts, the Beneficiaries of each such Sub-Trust shall bear in full
such Liability or indemnification obligation in proportion to the ratio of
the aggregate value of the Affected Trust Assets in the UTI Portfolio or the
related SUBI Portfolio, as the case may be, to the aggregate value of the
Affected Trust Assets, but (ii) to the extent that any such Liability or
indemnification obligation is suffered with respect to all Titling Trust
Assets generally, the Beneficiaries shall bear such Liability or
indemnification obligation in proportion to the ratio of the aggregate value
of the Contracts and Leased Vehicles in the UTI Portfolio or the related SUBI
Portfolio, as the case may be, to the aggregate value of all Contracts and
Leased Vehicles that are Titling Trust Assets.
ARTICLE IV
THE SERVICER
SECTION 4.01 DUTIES OF THE SERVICER. The Servicer is hereby appointed
and authorized to act as attorney-in-fact for the Titling Trust, and in such
capacity shall manage, service, administer and make collections on the
Titling Trust Assets with reasonable care, using that degree of skill and
attention that it exercises with respect to comparable assets that it
services for itself. The Titling Trustee shall, with the consent of the
Servicer, enter into any and all agreements specified by the Beneficiary of
the UTI or a SUBI in order to add, delete or amend any or all of the
obligations of the Servicer hereunder in respect of all or any portion of the
Titling Trust Assets in the UTI Sub-Trust or the related SUBI Sub-Trust. The
Servicer shall follow its customary standards, policies and procedures and,
unless otherwise indicated herein or in the related SUBI Servicing
Supplement, shall have full power and authority, acting alone, to do any and
all things in connection with such managing, servicing, administrating and
collecting that it may deem necessary or desirable in the interest of the
Titling Trust. The foregoing shall not be construed to prevent the Servicer
from implementing new programs, whether on an intermediate pilot or permanent
basis, or on a regional or nationwide basis, or from modifying its standards,
policies and procedures, as long as, in each case, the Servicer does or would
implement such programs, or modify its standards, policies and procedures, in
respect of comparable assets for itself in the ordinary course of business.
Without limiting the generality of the foregoing, the Servicer is hereby
authorized and empowered by the Beneficiaries and the Titling Trust to (x)
modify or extend the term of any Contract on the same terms and conditions it
applies or would apply to comparable assets owned by it, or (y) execute and
deliver, on behalf of the Titling Trust, any and all instruments, certificates
or other documents necessary or advisable to record and maintain title to the
Leased Vehicles in the
-8-
name of the Titling Trust or the Titling Trustee, on behalf of the Titling
Trust, and to release interests of the Titling Trust, the Titling Trustee, on
behalf of the Titling Trust, and each Beneficiary in any Leased Vehicle in
connection with the sale or other disposition of a Leased Vehicle (whether
directly to the Obligor under the Contract relating to the Leased Vehicle or
to a third party) by the related Beneficiary as contemplated by this
Agreement and the other documents relating to a Securitized Financing. The
Servicer also shall be responsible for creating, maintaining and amending the
Schedule of Contracts and Leased Vehicles. The Servicer shall deliver to the
Titling Trustee, upon written request therefor by the Titling Trustee or any
Beneficiary, and upon any Trust Asset Transfer, a revised Schedule of
Contracts and Leased Vehicles current as of a date not more than ten days
prior to the date of such delivery.
The Servicer is hereby authorized to communicate with Obligors in the
course of its servicing of the Contracts and Leased Vehicles in its own name.
The Servicer is hereby authorized to commence, in its own name or in the name
of the Titling Trust, a legal proceeding or participate in a legal proceeding
(including a bankruptcy proceeding) relating to or involving the protection
or enforcement of the interest of the Titling Trust or the related
Beneficiary in any Contract, Leased Vehicle or other Trust Asset. If the
Servicer commences or participates in such legal proceeding in its own name,
the Titling Trust shall thereupon be deemed to have automatically assigned
legal title to each related Leased Vehicle and the Titling Trust's interest
in the related Contract to the Servicer for purposes of commencing or
participating in any such proceeding as a party or claimant, and the Servicer
is authorized and empowered by the Titling Trust to execute and deliver in
the Servicer's name any notices, demands, Claims, responses, affidavits or
other documents or instruments in connection with any such proceeding. The
Titling Trustee shall furnish the Servicer with any powers of attorney and
other documents and take any other steps which the Servicer may deem
necessary or appropriate to enable it to carry out its duties under this
Agreement and the other documents relating to a Securitized Financing.
SECTION 4.02 LIABILITY OF SERVICER; INDEMNITIES.
(a) The Servicer shall be liable in accordance with this Agreement and
the other documents relating to a Securitized Financing only to the extent of
the obligations specifically undertaken by the Servicer and shall have no
other obligations or liabilities hereunder or thereunder. The Servicer shall
indemnify, defend and hold harmless:
(i) (A) the Titling Trust, the Titling Trustee and the Trust Agent
from and against any and all Liabilities arising out of or resulting from
its use, ownership or operation of any Leased Vehicle; and (B) the Titling
Trust, the Titling Trustee and the Trust Agent from and against any taxes
that may at any time be asserted against any of them with respect to the
transactions contemplated by this Agreement (other than taxes with respect
to fees payable hereunder, such fees being payable by the related
Beneficiary, or as herein provided, by the Servicer), including any state
sales, gross receipts, general corporation (including franchise and minimum
income taxes), tangible personal property, privilege or license, taxes and
costs and expenses in defending against the same, in each case to the
extent not paid by the
-9-
related Obligors and to the extent related Titling Trust Assets are not
available therefor hereunder or are insufficient therefor;
(ii) the Titling Trust, the Titling Trustee, the Trust Agent and
the Beneficiaries from and against any and all Liabilities to the extent
that such Liabilities arose out of, or are imposed upon, any of them through
the Servicer by reason of its disregard of its obligations and duties
hereunder or thereunder; and
(iii) the Titling Trustee and the Trust Agent from and against all
Liabilities arising out of or incurred in connection with the acceptance or
performance of the trusts and duties contained in this Agreement, except to
the extent that such Liabilities: (A) are due to the willful misfeasance,
bad faith or negligence (except for errors in judgment) of the Titling
Trustee or Trust Agent, (B) arise from the material breach by the Titling
Trustee or the Trust Agent of any of its representations or warranties set
forth in this Agreement, or (C) shall arise out of or be incurred in
connection with the performance by the Titling Trustee of the duties of a
successor Servicer hereunder, or of any such duties on behalf of the
Titling Trustee by the Trust Agent.
(b) Indemnification under this Section shall include reasonable fees and
expenses of counsel and expenses of litigation. If the Servicer has made any
indemnity payments pursuant to this Section and the recipient thereafter
collects any such amounts from others, the recipient shall promptly repay
such amounts collected to the Servicer, without interest, to the extent of
such payments made by the Servicer. Indemnification under this Section shall
survive any transaction described in Section 4.03 with respect to any and all
Titling Trust Assets as of the date of such transaction and any acts,
occurrences or transactions related thereto whether arising before or after
the date of such transaction.
SECTION 4.03 MERGER, CONSOLIDATION, OR ASSUMPTION OF THE OBLIGATIONS OF,
THE SERVICER. Any corporation (i) into which the Servicer may be merged or
consolidated, (ii) resulting from any merger, conversion or consolidation to
which the Servicer shall be a party or (iii) succeeding to the business of
the Servicer and which is otherwise servicing leases or retail installment
sales contracts, which corporation executes an agreement of assumption to
perform every obligation of the Servicer hereunder, shall be the successor to
the Servicer without the execution or filing of any paper or any further act
on the part of any of the parties to this Agreement. The Servicer shall
provide notice of any merger, consolidation or succession pursuant to this
Section 4.03 to the Titling Trustee, the UTI Beneficiary and each Rating
Agency.
SECTION 4.04 LIMITATION ON LIABILITY OF SERVICER AND OTHERS.
(a) Neither the Servicer nor any of its directors, officers, employees or
agents shall be under any liability to the Titling Trust, the Titling Trustee,
the Trust Agent, or any Beneficiary, except as otherwise provided in this
Agreement and the other documents relating to a Securitized Financing, for any
action taken or for refraining from the taking of any action pursuant hereto or
-10-
thereto, or for errors in judgment. Notwithstanding the foregoing, this
provision shall not protect the Servicer or any such Person against any
Liability that would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence (except errors in judgment) in the performance of
duties or by reason of reckless disregard of obligations hereunder or
thereunder. The Servicer and its directors, officers, employees or agents
may rely in good faith on the advice of counsel or on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder or thereunder.
(b) Except as provided in this Agreement and the other documents
relating to a Securitized Financing, the Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties to service the Titling Trust Assets in accordance
herewith or therewith and that in its opinion may involve it in any expense
or Liability. Notwithstanding the foregoing, the Servicer may undertake any
reasonable action that it may deem necessary or desirable in respect of this
Agreement and the other documents relating to a Securitized Financing and the
rights and duties of the parties hereto or thereto and the interests of any
Beneficiary hereunder or thereunder. In such event, the reasonable legal
expenses and costs for such action and any liability resulting therefrom
shall be expenses, costs and liabilities of the Titling Trust Assets relating
to the applicable Sub-Trust and the Servicer shall be entitled to be
reimbursed therefor solely from funds available therefor.
SECTION 4.05 SERVICER NOT TO RESIGN; DELEGATION OF DUTIES.
(a) Subject to Section 4.03, the Servicer shall not resign from the
obligations and duties imposed on it by this Agreement as Servicer except
upon a determination that the performance of its duties under this Agreement
is no longer permissible under applicable law. Any such determination
permitting the resignation of the Servicer shall be evidenced by an opinion
of counsel to such effect delivered to the Titling Trustee. No such
resignation shall become effective until a successor servicer shall have
assumed the responsibilities and obligations of the Servicer in accordance
with Section 4.03. The Titling Trustee will, in no event, be obligated to
serve as successor servicer except upon its express prior written consent.
(b) The Servicer may not assign any of its rights, powers, duties or
obligations under this Agreement. Notwithstanding the foregoing, the
Servicer may make such an assignment in connection with a consolidation,
merger, conversion or succession effected in compliance with Section 4.03 or
in connection with the transfer to a successor servicer as contemplated by
clause (a) above.
(c) Except as provided in paragraphs (a) and (b) of this Section or in
any other document relating to a Securitized Financing, the duties and
obligations of the Servicer under this Agreement shall continue until this
Agreement has been terminated as provided in Section 8.01 and shall survive
the exercise by the Titling Trustee of any right or remedy under, or the
enforcement by the Titling Trustee of any provision contained in, this
Agreement or any other documents relating to a Securitized Financing.
-11-
(d) Notwithstanding the foregoing, the Servicer may enter into
subservicing agreements with one or more subservicers (which may be
Affiliates of the Servicer) for the servicing and administration (in whole or
in part) of the Contracts and the Leased Vehicles, with the consent of the
Beneficiaries (which consent shall not be unreasonably withheld) if such
subservicer is not an Affiliate of the Servicer. References in this
Agreement or any other document relating to a Securitized Financing to
actions taken or to be taken by the Servicer in servicing the Contracts and
Leased Vehicles include actions taken or to be taken by any such subservicer
on behalf of the Servicer. Each such subservicing agreement will be upon
terms and conditions not inconsistent with this Agreement and the other
documents relating to a Securitized Financing and as the Servicer and any
such subservicer may agree and shall contain a non-petition covenant
substantially identical to that set forth in Section 6.14. The Servicer shall
provide the Titling Trustee with a copy of each such subservicing agreement.
(e) Notwithstanding any subservicing agreement, any of the provisions of
this Agreement or the other documents relating to a Securitized Financing
that relate to agreements or arrangements between the Servicer and any
subservicer or reference to actions that are taken through a subservicer or
otherwise, the Servicer shall remain obligated and liable to the Titling
Trust and the Titling Trustee pursuant to Section 4.02 without diminution of
such obligation or liability by virtue of such delegation or by virtue of
indemnification from any subservicer, to the same extent and under the same
terms and conditions as if the Servicer alone were servicing and
administering the Contracts and Leased Vehicles.
SECTION 4.06 SERVICING COMPENSATION. The Servicer shall receive such
fees and reimbursement for expenses with respect to the Titling Trust Assets
relating to a Sub-Trust as may be agreed to from time to time between the
Servicer and the related Beneficiary.
SECTION 4.07 POWERS OF ATTORNEY. The Servicer is hereby designated by
each Beneficiary, the Titling Trust, and the Titling Trustee as its true and
lawful attorney-in-fact, with full power and authority to perform any and all
acts related to managing, servicing, administering, collecting or
repossessing any part of the Titling Trust Assets and any and all acts
otherwise required or permitted to be performed by the Servicer pursuant to
Section 4.01 or otherwise under this Agreement and the other documents
relating to a Securitized Financing whether acting in its own name or in the
name of the Titling Trust, the Titling Trustee or any Beneficiary. The
Servicer is hereby authorized and empowered to execute and deliver, on behalf
and in the name of each Beneficiary, the Titling Trust or the Titling
Trustee, any and all instruments, certificates or other documents relating
thereto. The Servicer also has the right, power and authority to designate
in writing other persons and entities as true and lawful attorneys-in-fact
for and on its or their behalf to do anything that the Servicer has the power
to do under this Agreement and the other documents relating to a Securitized
Financing. Without limiting the generality of the foregoing, the Servicer or
any such person or entity designated by the Servicer is hereby authorized and
empowered by the Titling Trustee and the Titling Trust to execute and
deliver, on behalf of the Titling Trust and the Titling Trustee, any and all
applications for or duplicates of Certificates of Title in the name of the
Titling Trust or the Titling Trustee, on behalf of the Titling Trust, any and
all applications for registrations of vehicles and/or license plates,
-12-
any and all applications for transfers of Certificates of Title or
registrations for vehicles and/or license plates, and any and all other
instruments, certificates or other documents which the Servicer deems
necessary or advisable to record, hold or release title to and/or
registration of motor vehicles in the name of the Titling Trust or the
Titling Trustee, as appropriate.
SECTION 4.08 PROTECTION OF TITLE TO TITLING TRUST.
(a) The Servicer shall maintain its computer systems so that its master
computer records (including any back-up archives) that refer to any Leased
Vehicles indicate clearly that legal title to such Leased Vehicle is held by
the Titling Trust or the Titling Trustee, on behalf of the Titling Trust, as
appropriate, as nominee holder of legal title for the related Beneficiary.
Indication of the legal title of the Titling Trust or the Titling Trustee, on
behalf of the Titling Trust, to a Leased Vehicle shall be deleted from or
modified on such computer systems when, and only when, legal title to such
Leased Vehicle is no longer owned by the Titling Trust or the Titling
Trustee, on behalf of the Titling Trust, for the benefit of the related
Beneficiary.
(b) If at any time the Servicer or a Beneficiary proposes to sell, grant
a security interest in or otherwise transfer any interest in any Leased
Vehicles to any prospective purchaser, lender or other transferee, all
computer tapes, records or print-outs (including any restored from back-up
archives) delivered by the Titling Trustee to such prospective purchaser,
lender or other transferee that refers in any manner whatsoever to any Leased
Vehicle shall indicate clearly that legal title to such Leased Vehicle is
held in the name of the Titling Trust or the Titling Trustee, on behalf of
the Titling Trust, for the benefit of the related Beneficiary.
ARTICLE V
PAYMENTS
SECTION 5.01 PAYMENTS FROM TITLING TRUST ASSETS ONLY. All payments, if
any, to be made by the Titling Trustee or the Servicer under this Agreement
or any other documents relating to a Securitized Financing, other than (i)
indemnities of the Servicer pursuant to Section 4.02, (ii) payment of the
Titling Trustee's fees and expenses by the Servicer pursuant to Section 6.13
or (iii) amounts owing by the Titling Trustee arising from its willful
misfeasance, bad faith or negligence, shall be made only from any then
available collections and proceeds in respect of the Titling Trust Assets or
the SUBI Assets of the related Sub-Trust, as appropriate, and only to the
extent that the Titling Trustee or the Servicer shall have received such
collections and proceeds in respect thereof to make such payments in
accordance with the terms hereof. This Section is not intended to override
the waivers of limited liability by the Beneficiaries made in Section 3.02.
SECTION 5.02 MANNER OF PAYMENT. All amounts payable to Beneficiaries
pursuant to this Agreement or any other document relating to a Securitized
Financing shall be paid or caused to be paid by the Titling Trustee or the
Servicer, as the case may be, to or for the account of the related Beneficiary
in immediately available funds by wire transfer or other method of same-day
transfer.
-13-
ARTICLE VI
THE TITLING TRUSTEE
SECTION 6.01 DUTIES AND POWERS OF TITLING TRUSTEE.
(a) The Titling Trustee and the Trust Agent undertake to perform such
duties and engage in such activities, and only such duties and activities, as
are specified in this Agreement, any SUBI Supplement or UTI Supplement, any
other amendment to this Agreement, SUBI Supplement or UTI Supplement, or as
may be directed by the Beneficiary in a manner not contrary to the terms
hereof or thereof from time to time, including in connection with (i)
Securitized Financings, (ii) sales of Contracts and other Titling Trust
Assets to the extent permitted by the terms of any existing Securitized
Financings (so long as the Certificate of Title of any Leased Vehicle so sold
is amended to reflect the transfer of ownership thereof from the Titling
Trust or the Titling Trustee, on behalf of the Titling Trust, as applicable,
unless applicable law permits the transfer of ownership of a motor vehicle
without an amendment to the vehicle's certificate of title) or (iii)
activities ancillary thereto.
(b) Neither the Titling Trustee nor the Trust Agent shall engage in any
activities other than activities required or permitted by the provisions of
this Agreement. Except as provided in or permitted by this Titling Trust
Agreement, any UTI Supplement, any SUBI Supplement or any related SUBI
Servicing Supplement, neither the Titling Trustee nor the Trust Agent shall
(i) issue beneficial interests in the Titling Trust Assets or securities of
the Titling Trust other than the UTI and UTI Certificates and one or more
SUBIs and SUBI Certificates; (ii) borrow money on behalf of the Titling
Trust; (iii) make loans on behalf of the Titling Trust; (iv) invest in or
underwrite securities; (v) offer securities in exchange for Titling Trust
Assets (other than UTI Certificates and SUBI Certificates); (vi) repurchase
or otherwise reacquire any UTI Certificate or SUBI Certificate except as
permitted by or in connection with any Securitized Financing; or (vii) grant
any security interest in or lien upon any Titling Trust Assets.
(c) At the direction of the UTI Beneficiary or the Servicer and at the
expense of the [Servicer], the Titling Trustee shall: (i) apply for and
maintain (or cause to be applied for and maintained) all licenses, permits
and authorizations necessary and appropriate for the Titling Trust or the
Titling Trustee in carrying out the terms of this Agreement (including
receiving assignments of Contracts and causing Certificates of Title to
reflect the Titling Trust, OR the Titling Trustee on behalf of the Titling
Trust, as the owner of the Leased Vehicles) in each jurisdiction that the UTI
Beneficiary or the Servicer reasonably deems appropriate; (ii) file (or cause
to be filed) all notices, reports and other required filings in each
jurisdiction that the UTI Beneficiary or the Servicer reasonably deems
appropriate; (iii) file (or cause to be filed) in each jurisdiction that the
UTI Beneficiary or the Servicer reasonably deems appropriate applications for
Certificates of Title as are necessary and appropriate so as to cause the
Titling Trust or the Titling Trustee, on behalf of the Titling Trust, to be
recorded as the holder of legal title of record of the Leased Vehicles and to
execute and deliver to each Dealer a power of attorney in order to allow such
Dealers to so record the Titling Trust or the Titling Trustee, on behalf of
the Titling Trust, as the holder of legal title to
-14-
such Leased Vehicles; (iv) to the extent that the UTI Beneficiary or the
Servicer deems it necessary or useful to have a lien recorded on Certificates
of Title, file (or cause to be filed) in each jurisdiction that the UTI
Beneficiary or the Servicer reasonably deems appropriate, such applications
as are necessary to record upon each of the Certificates of Title an
Administrative Lien in favor of an Administrative Lienholder; (v) be, or
cause the Titling Trust to be, the assignee of the original Dealer/Obligee
with respect to the Contracts; and (vi) pay or cause to be paid all
applicable taxes and fees properly due and owing in connection with its
activities.
(d) The Titling Trustee, or the Trust Agent on its behalf, shall
establish accounts and receive, maintain, invest and disburse funds in
accordance with Articles V and VII hereof and the SUBI Supplements.
(e) Neither any Beneficiary nor the Servicer shall direct the Titling
Trustee or the Trust Agent to take any action that (i) is inconsistent with
the purposes of the Titling Trust as set forth in Section 2.04 or (ii) would
result in the treatment of the Titling Trust or any SUBI Sub-Trust as an
entity that is taxable as an "association" for federal income tax purposes.
SECTION 6.02 DUTY OF CARE.
(a) In carrying out their duties hereunder, the Titling Trustee and the
Trust Agent each shall exercise the rights and powers vested in it only as
set forth in this Agreement. No provision of this Agreement shall be
construed to relieve the Titling Trustee or the Trust Agent from liability
for their own negligent actions, negligent failure to act, bad faith or
willful misfeasance or similar act or omission; provided, however, that:
(i) neither the Titling Trustee nor the Trust Agent shall be
personally liable for any action taken, suffered or omitted by it or any
error of judgment, in each case made in good faith by any officer of, or
any other employee of the Corporate Trust Office of, the Titling Trustee or
any Trust Agent, including the president, any vice-president, assistant
vice-president, trust officer, corporate secretary or assistant corporate
secretary or any other officer of the Titling Trustee or such Trust Agent
customarily performing functions similar to those performed by such
officers or to whom any corporate trust matter is referred because of such
Person's knowledge of or familiarity with the particular subject, unless it
shall be proved that the Titling Trustee or Trust Agent was negligent or
acted with willful misfeasance in performing its duties in accordance with
the terms of this Agreement; and
(ii) neither the Titling Trustee nor the Trust Agent shall be
personally liable with respect to any action taken, suffered or omitted to
be taken in good faith in accordance with the express direction of the UTI
Beneficiary (to the extent relating to the Undivided Trust Interest) or the
holder or pledgee of a SUBI Certificate that is not the Titling Trustee or
a trust agent of the Titling Trustee in connection with a Securitized
Financing (to the extent relating to the SUBI evidenced thereby) relating
to the exercise of any trust, power or authority conferred upon the Titling
Trustee under this Agreement.
-15-
(b) Notwithstanding subsection (a) above, the Titling Trustee shall not
be required to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties under this Agreement, or in
the exercise of any of its rights or powers, if there shall be reasonable
grounds for believing that the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it, and none of
the provisions contained in this Agreement shall in any event require the
Titling Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of a Servicer hereunder or under any related SUBI
Servicing Supplement except during such time, if any, as the Titling Trustee
shall be successor to, and be vested with the rights, duties, powers and
privileges of, any Servicer in accordance with the terms of this Agreement or
any related SUBI Servicing Supplement.
(c) Except for actions expressly authorized by this Agreement, a SUBI
Supplement, a UTI Supplement, or an amendment thereto, the Titling Trustee
shall take no action as to which the Titling Trustee has been notified by a
Beneficiary, or has actual knowledge, that such action would impair the
beneficial interests in the Titling Trust, would impair the value of any
Titling Trust Asset or would adversely affect the then outstanding credit
rating issued by a Rating Agency with respect to any class of securities
issued in a Securitized Financing.
(d) All information obtained by the Titling Trustee regarding the
administration of the Titling Trust, whether upon the exercise of its rights
under this Agreement or otherwise, shall be maintained by the Titling Trustee
in confidence and shall not be disclosed to any other Person other than to
the Trust Agent or an appropriate Beneficiary unless such disclosure is
required by any applicable law or regulation or pursuant to subpoena, or such
information is already otherwise publicly available.
SECTION 6.03 CERTAIN MATTERS AFFECTING THE TITLING TRUSTEE.
Except as otherwise provided in this Agreement:
(a) The Titling Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, officer's certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
an authorized signatory of the relevant party. In particular, but without
limitation, whenever in this Agreement it is provided that the Titling Trustee
shall receive or may rely on the instructions or directions of a Beneficiary in
connection with a Securitized Financing, any written instruction or direction
purporting to bear the signature of any officer or authorized signatory of the
Beneficiary, or the holder or pledgee of a UTI Certificate or a SUBI Certificate
in connection with a Securitized Financing reasonably believed by it to be
genuine may be deemed by the Titling Trustee to have been signed or presented by
the proper party.
-16-
(b) The Titling Trustee may consult with counsel, and any written
opinion of counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it under this Agreement
in good faith and in accordance with such opinion of counsel.
(c) The Titling Trustee shall be under no obligation to exercise any of
the discretionary rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or in
relation to this Agreement, at the request, order or direction of a
Beneficiary in connection with a Securitized Financing or any Beneficiary of
the Titling Trust pursuant to the provisions of this Agreement, unless such
requesting Person(s) shall have offered to the Titling Trustee reasonable
security or indemnity against the Liabilities that may be incurred therein or
thereby.
(d) The Titling Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or other paper or document, unless requested in writing to do so by a
Beneficiary; provided, however, that if the payment within a reasonable time
to the Titling Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the
Titling Trustee, not reasonably assured to the Titling Trustee by the
security afforded to it by the terms of this Agreement or any SUBI
Supplement, the Titling Trustee may require reasonable indemnity against such
costs, expenses or liabilities as a condition to so proceeding; the
reasonable expense of every such examination shall be paid by the Person(s)
requesting such examination or, if paid by the Titling Trustee, shall be
reimbursed as a Titling Trust expense upon demand.
(e) The Titling Trustee may execute any of the trusts or powers under
this Agreement or perform any duties under this Agreement either directly or
by or through agents or attorneys or one or more custodians and shall not be
liable for the negligence or willful misconduct of such agents or attorneys
appointed with due care. By way of illustration and not in limitation of the
foregoing, the Titling Trustee may from time to time enter into one or more
Trust Agency Agreements with such Trust Agents, including any Affiliate of
the Titling Trustee, as are by experience and expertise qualified to act in a
trustee capacity and otherwise acceptable to the UTI Beneficiary.
Notwithstanding the foregoing, the Titling Trustee shall replace any Trust
Agent if (i) in the good faith judgment of the UTI Beneficiary, the
compensation or level of service of such Trust Agent shall no longer be
reasonably competitive with those of any alternative agent reasonably
proposed by the UTI Beneficiary, or (ii) if the Trust Agent has materially
breached its obligations under the Trust Agency Agreement, the UTI
Beneficiary or a Beneficiary in connection with a Securitized Financing has
given written notice to the Titling Trustee and the Trust Agent of such
breach, and the Trust Agent has not cured such breach in all material
respects within 30 Business Days thereafter. Such Trust Agency Agreement
shall specify the duties, powers, liabilities, obligations and compensation
of such Trust Agent(s) to carry out on behalf of the Titling Trustee any or
all of its obligations as Titling Trustee of the Titling Trust arising under
this Agreement or otherwise and shall contain a non-petition covenant
substantially identical to that set forth in Section 6.14, provided, however,
that nothing contained in any Trust Agency Agreement shall excuse, limit
-17-
or otherwise affect any power, duty, obligation, liability or compensation
otherwise applicable to the Titling Trustee hereunder. The Titling Trustee
hereby engages First Bank National Association as its initial Trust Agent,
and First Bank National Association by its signature hereto accepts such
engagement, with all provisions of this Section 6.03(e) relating to Trust
Agents constituting a Trust Agency Agreement between First Bank National
Association and the Titling Trustee, subject to any amendment or supplement
thereto between such parties not inconsistent herewith. First Bank National
Association shall carry out as Trust Agent each and every obligation of the
Titling Trustee hereunder and under any SUBI Supplement and is hereby
delegated by the Titling Trustee all power and authority delegable by the
Titling Trustee hereunder in order better to be able to carry out its duties
as Trust Agent.
SECTION 6.04 TITLING TRUSTEE NOT LIABLE FOR CERTIFICATES OR LOSSES.
The Titling Trustee shall have no obligation to perform any of the duties
of the Grantor or the Servicer unless explicitly set forth herein or in any
SUBI Supplement or related SUBI Servicing Supplement. The Titling Trustee
shall at no time have any responsibility or liability for or with respect to
the (a) legality, validity and enforceability of any security interest in any
Trust Asset; (b) the perfection or priority of such a security interest or
the maintenance of any such perfection and priority; (c) the efficacy of the
Titling Trust or its ability to generate the payments to be distributed to
any Beneficiary or its permitted assignee(s) under this Agreement, including
the existence, condition, location and ownership of any Trust Asset; (d) the
existence and enforceability of any Insurance Policy; (e) the existence and
contents of any Contract or any computer or other record thereof; (f) the
validity of the assignment of any Trust Asset to the Titling Trustee or of
any intervening assignment; (g) the completeness of any Contract; (h) the
performance or enforcement of any Contract; (i) the compliance by the Grantor
or any Servicer with any covenant or the breach by the Grantor or any
Servicer of any warranty or representation in any document and the accuracy
of any such warranty or representation prior to the Titling Trustee's receipt
of notice or other discovery of any noncompliance therewith or any breach
thereof; (j) any investment of monies by any Servicer or any loss resulting
therefrom (it being understood that the Titling Trustee shall remain
responsible for any Titling Trust Assets that it may hold); (k) the acts or
omissions of any Dealer or any other Person, the Grantor, any Servicer or any
obligor under, or in connection with the origination of, any Contract; (l)
any action of any Servicer taken in the name of the Titling Trustee; or (m)
any action by the Titling Trustee taken at the instruction of any Servicer;
provided, however, that the foregoing shall not relieve the Titling Trustee
of its obligation to perform its duties under this Agreement. Except with
respect to a claim based on the Titling Trustee's or any Trust Agent's
willful misconduct, bad faith or negligence, (i) no recourse shall be had
against the institution serving as Titling Trustee in its individual capacity
for any claim based on any provision of this Agreement, a SUBI Supplement or
UTI Supplement or any amendment thereof, a SUBI Certificate or any Trust
Asset or assignment thereof and (ii) the Titling Trustee shall not have any
personal obligation, liability or duty whatsoever to the UTI Beneficiary or
any other Person with respect to any such claim, and any such claim shall be
asserted solely against the Titling Trust Assets (subject to Section 3.04) or
any indemnitor who shall furnish indemnity as provided in this Agreement.
The Titling Trustee shall not be accountable for the use or application by a
Beneficiary of any SUBI
-18-
Certificate or of the proceeds of such SUBI Certificate, or for the use or
application of any funds properly paid to any Servicer hereunder or pursuant
to any SUBI Servicing Supplement.
SECTION 6.05 INDEMNITY OF TITLING TRUSTEE AND TRUST AGENTS.
The Titling Trustee and any Trust Agent shall be indemnified and held
harmless out of and to the extent of the Titling Trust Assets with respect to
any Claim arising out of or incurred in connection with (a) any of the
Titling Trust Assets (including any Claim relating to any Contract, Leased
Vehicle, consumer fraud, consumer leasing act violation, misrepresentation,
deceptive and unfair trade practice, and any other claim arising in
connection with any Contract, personal injury or property damage claim
arising with respect to any Leased Vehicle or any claim with respect to any
tax arising with respect to any Titling Trust Asset) or (b) the Titling
Trustee's or Trust Agent's acceptance or performance of the trusts and duties
contained in this Agreement or any Trust Agency Agreement, with any
allocation of such indemnification among the Titling Trust Assets to be made
as provided for in Section 3.04; provided, however, that neither the Titling
Trustee nor any Trust Agent shall be indemnified or held harmless out of the
Titling Trust Assets as to any Claim for which the Servicer shall be
expressly and solely liable hereunder or pursuant to any SUBI Servicing
Supplement (unless the Servicer shall not have paid such claim upon the final
determination of its liability therefor), (ii) incurred by reason of the
Titling Trustee's or such Trust Agent's willful misconduct, bad faith or
negligence or (iii) incurred by reason of the Titling Trustee's breach of its
representations, warranties or covenants herein or in any Transaction
Document. The Beneficiaries will indemnify, defend and hold harmless the
Titling Trustee and any Trust Agent for any such Claims that the Titling
Trust Assets are insufficient to satisfy, with any allocation of such
indemnification among the Beneficiaries to be made as provided for in Section
3.04. Such indemnification shall be irrespective of any other
indemnification provided to the Beneficiaries under any other documents
relating to a Securitized Financing.
SECTION 6.06 TITLING TRUSTEE'S RIGHT NOT TO ACT.
Notwithstanding anything to the contrary contained herein, the Titling
Trustee shall have the right to decline to act in any particular manner
otherwise provided for herein if the Titling Trustee, being advised in
writing by counsel, determines that such action may not lawfully be taken, or
if the Titling Trustee in good faith shall determine that such action would
be illegal or subject it to personal liability or, in the case of a direction
from one or more Beneficiaries, be prejudicial to the rights of other
Beneficiaries; and provided further, that nothing in this Agreement shall
impair the right of the Titling Trustee to take any action deemed proper by
the Titling Trustee that is not inconsistent with such otherwise required
acts.
SECTION 6.07 QUALIFICATION OF TITLING TRUSTEE.
Except as otherwise provided in this Agreement, the Titling Trustee under
this Agreement shall at all times be (a) a corporation organized under the laws
of one of the fifty states of the United States, the District of Columbia or the
Commonwealth of Puerto Rico (which corporation shall not
-19-
be the Grantor or any Affiliate thereof), (b) qualified, or promptly will
be qualified, to do business as a foreign corporation in each of the Trust
States and (c) otherwise acceptable to each Rating Agency rating any class of
securities at the request of the Grantor issued in connection with any
Securitized Financing and to any pledgee of a UTI Pledge (such acceptance by
any such pledgee not to be unreasonably withheld, delayed or conditioned).
SECTION 6.08 RESIGNATION OR REMOVAL OF TITLING TRUSTEE.
(a) The Titling Trustee may not at any time resign without the express
written consent of the Beneficiaries.
(b) If at any time the Titling Trustee shall cease to be qualified in
accordance with Section 6.07, or if any representation or warranty made by
the Titling Trustee pursuant to Section 6.12 or the Trust Agent pursuant to
Section 6.15 shall prove to have been untrue in any material respect when
made and shall not have been cured within 45 days after any Beneficiary gives
the Titling Trustee written notice of such inaccuracy, but the Titling
Trustee shall fail to resign after written request therefor by any
Beneficiary or pledgee of any UTI Certificate or SUBI Certificate in
connection with a Securitized Financing, or if at any time the Titling
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Titling Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Titling
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the UTI Beneficiary shall remove the
Titling Trustee. If the Titling Trustee is removed under the authority of
the immediately preceding sentence, the UTI Beneficiary shall promptly
appoint a successor Titling Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Titling Trustee so removed
and one copy to the successor Titling Trustee, together with payment of all
fees owed to the outgoing Titling Trustee.
(c) Any resignation or removal of the Titling Trustee and appointment of
a successor Titling Trustee pursuant to any of the provisions of this section
shall not become effective until acceptance of appointment by the successor
Titling Trustee.
SECTION 6.09 SUCCESSOR TITLING TRUSTEE.
Any successor Titling Trustee appointed as provided in Section 6.08 shall
execute, acknowledge and deliver to the UTI Beneficiary, the Servicer and to
its predecessor Titling Trustee an instrument accepting such appointment
under this Agreement, and thereupon the resignation or removal of the
predecessor Titling Trustee shall become effective and such successor Titling
Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of the Titling
Trustee under this Agreement, with like effect as if originally named as
Titling Trustee. The predecessor Titling Trustee shall deliver to the
successor Titling Trustee all documents and statements held by it under this
Agreement, and the UTI Beneficiary and the predecessor Titling Trustee shall
execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Titling
-20-
Trustee all such rights, powers, duties and obligations. No successor Titling
Trustee shall accept appointment as provided in this Section unless at the
time of such acceptance such successor Titling Trustee shall be eligible
under the provisions of Section 6.07. Upon acceptance of appointment by a
successor Titling Trustee as provided in this Section, the UTI Beneficiary
shall mail notice of the successor of such Titling Trustee under this
Agreement to each pledgee or other Beneficiary of a UTI Certificate or a SUBI
Certificate. If the UTI Beneficiary fails to mail such notice within ten
days after acceptance of appointment by the successor Titling Trustee, the
successor Titling Trustee shall cause such notice to be mailed at the expense
of the UTI Beneficiary.
SECTION 6.10 MERGER OR CONSOLIDATION OF TITLING TRUSTEE.
The Titling Trustee shall not merge or consolidate with, or sell all or
any substantial part of its assets to any other Person, without the express
written consent of the UTI Beneficiary. Any such corporation (i) into which
the Titling Trustee may be merged or consolidated, (ii) which may result from
any merger, conversion, or consolidation to which the Titling Trustee shall
be a party, or (iii) which may succeed to the corporate business of the
Titling Trustee, which corporation executes an agreement of assumption to
perform every obligation of the Titling Trustee under this Agreement, shall
be the successor of the Titling Trustee hereunder, provided such corporation
shall be eligible pursuant to Section 6.07, without the execution or filing
of any other instrument or any further act on the part of any of the parties
hereto other than the written consent of the UTI Beneficiary. The Titling
Trustee shall give reasonable written notice to each SUBI Beneficiary and
each Rating Agency of any such merger or consolidation.
SECTION 6.11 APPOINTMENT OF CO-TITLING TRUSTEE, SEPARATE TITLING TRUSTEE,
OR NOMINEE.
(a) Notwithstanding any other provisions of this Agreement, if at any
time the Titling Trustee determines that it is in the best interests of the
Titling Trust to take any action for the purpose of meeting any legal
requirements of any jurisdiction in which any Titling Trust Asset may at the
time be located or within which such Titling Trust Asset is to be acquired or
for any other purpose as so determined by the Titling Trustee, the
Beneficiary of the Sub-Trust to which such Trust Asset is allocated and the
Titling Trustee, acting jointly, shall have the power to execute and deliver
all instruments to appoint one or more Persons approved by the Titling
Trustee and such Beneficiary to act as co-trustee, jointly with the Titling
Trustee, or as a separate trustee or nominee holder of legal title, of all or
any part of such Titling Trust Assets, and to vest in such Person, in such
capacity and for the benefit of such Beneficiary and its permitted
assignee(s), such title to such Titling Trust Assets, or any part thereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as such Beneficiary and the Titling Trustee
may consider necessary or desirable. No co-trustee, separate trustee, or
nominee holder of legal title under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to Section 6.07,
except that no co-trustee, separate trustee or nominee holder of legal title
under this Agreement may be the UTI Beneficiary or any Affiliate thereof.
-21-
(b) Each separate trustee, co-trustee and nominee holder of legal title
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Titling Trustee shall be conferred upon and exercised or performed
by the Titling Trustee and such separate trustee, co-trustee or nominee
holder of legal title jointly (it being understood that such separate
trustee, co-trustee or nominee holder of legal title is not authorized to
act separately without the Titling Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed (whether as Titling Trustee under this
Agreement or as successor to any Servicer under this Agreement or any SUBI
Servicing Supplement), the Titling Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the
Titling Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee, co-trustee or
nominee holder of legal title, but solely at the direction of the Titling
Trustee;
(ii) no trustee or nominee holder of legal title under this Agreement
shall be personally liable by reason of any act or omission of any other
trustee or nominee holder of legal title under this Agreement; and
(iii) the Beneficiaries and the Titling Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee,
co-trustee or nominee holder of legal title.
(c) Any notice, request or other writing given to the Titling Trustee
shall be deemed to have been given to each of the then separate trustees,
co-trustees and nominee holders of legal title, as effectively as if given to
each of them. Every instrument appointing any separate trustee, co-trustee
or other nominee holder of legal title shall refer to this Agreement and the
conditions of this Section. Each separate trustee, co-trustee and nominee
holder of legal title, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Titling Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Titling Trustee. Each such instrument shall be filed with the Titling
Trustee and a copy thereof given to the Servicer and each Beneficiary.
Any separate trustee, co-trustee or nominee holder of legal title may at
any time appoint the Titling Trustee its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its name. If any
separate trustee, co-trustee or nominee holder of legal title shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts relating to this Agreement and the Titling Trust
Assets shall vest in and be exercised by the Titling Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
Notwithstanding
-22-
anything to the contrary in this Agreement, the appointment of any separate
trustee, co-trustee or nominee holder of legal title shall not relieve the
Titling Trustee of its obligations and duties under this Agreement.
SECTION 6.12 REPRESENTATIONS, WARRANTIES AND COVENANTS OF TITLING TRUSTEE.
The Titling Trustee hereby represents, warrants and covenants for the
benefit of the Grantor, each Beneficiary and each pledgee of a UTI Certificate
or SUBI Certificate:
(a) ORGANIZATION AND GOOD STANDING. The Titling Trustee is a
corporation, duly organized, validly existing and in good standing under the
law of the State of Delaware and is, or promptly will be, qualified to do
business as a foreign corporation and is, or promptly will be, in good
standing in each state that is a Trust State as of the date of this
Agreement. The Titling Trustee shall promptly take or cause to be taken all
such actions and execute and file or cause to be executed and filed all such
instruments and documents, the cost of which shall be a Titling Trust
Expense, as may reasonably be required in order for the Titling Trustee to
qualify to do business and be in good standing in each other State identified
in writing from time to time by the Grantor or the UTI Beneficiary.
(b) POWER AND AUTHORITY. The Titling Trustee has full power, authority
and right to execute and deliver this Agreement, and has, or promptly will
have, full power and authority to perform its obligations hereunder in each
state that is a Trust State as of the date of this Agreement, and has taken
all necessary action to authorize the execution and delivery of this
Agreement, and has taken, or promptly will take, all necessary action to
authorize performance by it of this Agreement in each state that is a Trust
State as of the date of this Agreement.
(c) DUE EXECUTION. This Agreement has been duly executed and delivered
by the Titling Trustee, and is a legal, valid and binding instrument
enforceable against the Titling Trustee in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in effect,
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(d) NO CONFLICT. To the Titling Trustee's actual knowledge, neither the
execution and delivery of this Agreement nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default (with
notice or passage of time or both) under any provision of any law, governmental
rule, regulation, judgment, decree or order binding on the Titling Trustee (but
excluding any matters of consumer protection or credit laws as to which the
Titling Trustee has no actual knowledge and has conducted no independent
investigation) or the articles of incorporation or bylaws of the Titling Trustee
or any provision of any mortgage, indenture, contract agreement or other
instrument to which the Titling Trustee is a party or by which it is bound.
-23-
(e) SINGLE PURPOSE. The Titling Trustee has not engaged, is not
currently engaged, and will not engage during the term of this Agreement in
any other activity other than serving as Titling Trustee and in such
ancillary activities as are necessary and proper in order to act as Titling
Trustee in accordance with this Agreement, any SUBI Supplement or UTI
Supplement, and any amendment thereto or any of the other documents relating
to a Securitized Financing.
SECTION 6.13 TITLING TRUSTEE'S FEES AND EXPENSES.
The Titling Trustee shall be paid out of Titling Trust Assets in the UTI
Portfolio reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust) and reimbursement for all services rendered by it in the execution of
the Titling Trust and in the exercise and performance of any of the powers
and duties under this Agreement and the other documents relating to a
Securitized Financing to which it is a party, and as an expense of the
Titling Trust, reimbursement of all reasonable costs and expenses (including
reasonable attorneys' fees and expenses) of incorporation, qualification,
periodic maintenance of its corporate franchises and qualification, annual
board of directors' meetings and all necessary corporate filings, franchise
taxes and fees.
SECTION 6.14 NO PETITION.
Each of the Titling Trustee and First Bank National Association, as Trust
Agent, covenants and agrees that prior to the date which is one year and one
day after the date upon which all obligations under each Securitized
Financing has been paid in full, it will not institute against, or join any
other Person in instituting against, TMCC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceedings under
any federal or state bankruptcy or similar law. This Section shall survive
the termination of this Agreement or the resignation or removal of the
Titling Trustee under this Agreement.
SECTION 6.15 STOCK OF TMTT, INC.
First Bank National Association hereby represents, warrants and
covenants, for the benefit of the Grantor, each Beneficiary and each pledgee
of a UTI Certificate or SUBI Certificate, as follows:
(a) OWNERSHIP OF STOCK. All of the issued and outstanding Titling
Trustee Stock is owned by First Bank National Association, free and clear of
any lien, encumbrance or any other restriction, agreement or commitment of
any kind (other than as provided for in this Agreement) that would in any way
restrict First Bank National Association's ability freely to transfer, convey
and assign the Titling Trustee Stock. All such Titling Trustee Stock
currently outstanding is (and any Titling Trustee Stock that may be issued in
the future will be) validly issued, fully paid and nonassessable and has not
been (and will not be) issued in violation of any preemptive, first refusal
or other subscription rights of any Person. There are no outstanding
options, warrants, conversion' rights, subscription rights, preemptive
rights, exchange rights or other rights, agreements or commitments
-24-
of any kind obligating First Bank National Association to sell any Titling
Trustee Stock or to issue any additional capital stock in the Titling Trustee
to any Person. First Bank National Association will not issue any additional
Titling Trustee Stock without the express written consent of the UTI
Beneficiary.
(b) TRANSFER OF TITLING TRUSTEE STOCK. For so long as First Bank
National Association is acting as a Trust Agent pursuant to this Agreement or
any Trust Agency Agreement, but subject to any applicable legal or regulatory
requirements, it will retain ownership of all of the Titling Trustee Stock.
If at any time (and for any reason, including First Bank National
Association's resignation or termination as Trust Agent or the termination of
the Titling Trust) First Bank National Association either is no longer acting
as a Trust Agent, is no longer able, because of legal or regulatory changes,
to own the Titling Trustee Stock, or the Titling Trustee would have to be
removed pursuant to Section 6.08 because of its being owned by First Bank
National Association, First Bank National Association will (i) notify the UTI
Beneficiary of such event and (ii) sell to the UTI Beneficiary's designee
(who shall not be the UTI Beneficiary or any Affiliate thereof), at the UTI
Beneficiary's option, without recourse except with respect to the
representations, warranties and covenants of the Titling Trustee and the
Trust Agent contained herein, all of the Titling Trustee Stock for the sum
of Ten Dollars ($10). The UTI Beneficiary's designee shall have sixty (60)
days from the date of receipt of such notice in which to exercise such option
and to consummate such acquisition, during which time First Bank National
Association shall refrain from offering for sale or selling any Titling
Trustee Stock to any Person other than the UTI Beneficiary's designee. If the
UTI Beneficiary's designee shall not consummate such acquisition within such
period, First Bank National Association shall be free to offer for sale or
sell to any Person any or all of the Titling Trustee Stock or to dissolve the
Titling Trustee; provided, however, that a successor Titling Trustee shall
have been appointed in accordance herewith. If the UTI Beneficiary's
designee shall timely exercise its option to acquire the Titling Trustee
Stock, First Bank National Association shall promptly tender all such Titling
Trustee Stock to such buyer at a time and place determined by the buyer, duly
endorsed in blank or with duly endorsed stock powers attached, against
payment of the purchase price. The UTI Beneficiary shall pay any transfer or
similar taxes arising from a transfer of the Titling Trustee Stock as
contemplated herein. If no designee of the UTI Beneficiary shall be willing
to purchase the Titling Trustee Stock as described above, then the Titling
Trustee and each Beneficiary shall have the right to petition a court of
competent jurisdiction to appoint a successor trustee meeting the
requirements for a successor trustee set forth herein.
ARTICLE VII
ACCOUNTS; CASH FLOWS; PERMITTED INVESTMENTS
SECTION 7.01 ACCOUNTS.
(a) Unless otherwise specified in the UTI Supplement, the Titling
Trustee will establish and maintain with respect to the Undivided Trust
Interest a Lease Funding Account satisfying the definition of an Eligible
Account. The Lease Funding Account shall be established and maintained
-25-
in the name of the Titling Trustee on behalf of the UTI Sub-Trust. None of the
Grantor, any Beneficiary or, subject to Section 7.02(c), the holder or
pledgee of any UTI Certificate or SUBI Certificate shall have any right to
draw on the Lease Funding Account without the express written consent of the
Titling Trustee; provided, however, that the Titling Trustee, with the
express written consent of the related UTI Beneficiary, shall so consent to
the extent provided for in the documentation relating to any Securitized
Financing of such UTI Certificate or SUBI Certificate. The Lease Funding
Account shall only contain funds relating to UTI Assets.
(b) For so long as the Monthly Remittance Conditions are satisfied, the
Servicer shall not be required to remit to the Lease Funding Account collections
in respect of any Titling Trust Assets allocable to the Lease Funding Account on
a daily basis but shall be entitled to retain such collections, without
segregation from its other funds, until the Business Day preceding the date
identified as a "Distribution Date" in the related UTI Supplement, at which time
the Servicer shall so remit all such collections in immediately available funds;
provided that (i) investments on which the Trust Agent is the obligor (including
repurchase agreements as to which it, in its commercial capacity, is liable as
principal), may mature on the Distribution Date, and (ii) investments made of
Principal Collections or Interest Collections on deposit in a SUBI Collection
Account 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 the payments described in any SUBI Supplement or related SUBI Servicing
Supplement.
Notwithstanding the foregoing, commencing with the first day of the first
period identified as a "Collection Period" in the related UTI Supplement or SUBI
Supplement, as the case may be, that begins at least two Business Days after the
day on which any Monthly Remittance Conditions cease to be satisfied and for so
long as the Monthly Remittance Conditions are not satisfied, all collections in
respect of the UTI Assets or the related SUBI Assets, as applicable, then held
by the Servicer shall be immediately so deposited and all such future
collections shall be so remitted by the Servicer to the appropriate account in
accordance with this Agreement or the related SUBI Servicing Supplement, as
applicable, on a daily basis within two Business Days after receipt thereof.
Each SUBI Servicing Supplement shall also provide (i) the terms on which any
other funds received by any Servicer, including funds transferred from any of
the SUBI Collection Accounts to the extent of (1) the net investment value (as
recorded on the books of the Titling Trust) of any Contracts and Leased Vehicles
allocated to a SUBI in a Trust Asset Transfer, (2) reimbursement of any Servicer
Advances provided for in any Securitized Financing with respect to such SUBI or
(3) funding for such SUBI's share of any allocable Titling Trust Expenses will
be deposited by the Servicer into the Lease Funding Account (or transferred
directly to the Servicer, Grantor or UTI Beneficiary directly, as appropriate)
and (ii) whether and under what circumstances any other funds received by the
Servicer with respect to a SUBI Asset, including income with respect to any
investment made in any SUBI Account, shall be deposited by the Servicer into an
appropriate SUBI Account.
(c) Except as otherwise provided in Section 7.03, a UTI Supplement or a
SUBI Supplement, all Titling Trust Expenses shall be paid out of the Lease
Funding Account or from monies held by the Servicer and allocable thereto or
distributable in respect thereof, including: (i)
-26-
any reimbursement due to the Servicer for payments from its own operating
accounts in order to fund (A) amounts due to Dealers in payment for the
assignment to the Titling Trustee of Contracts and Leased Vehicles occurring
prior to the Titling Trustee's notice to the Servicer to cease acquiring
Contracts and Leased Vehicles on behalf of the Titling Trustee given pursuant
to Section 7.02(c)(ii) and (B) any other Advances made by the Servicer with
the consent of the Titling Trustee (to be given at the direction of the UTI
Beneficiary or in accordance with the terms of any Securitized Financing),
with respect to any Contract or Leased Vehicle, (ii) Servicer fees (and
expenses, if any, not covered by the Servicer fee under any SUBI Servicing
Supplement), (iii) Titling Trustee fees and expenses and (iv) other Titling
Trust Expenses, if any; provided, however, that, to the extent that any
Liability of the Titling Trustee or any Beneficiary is incurred in respect of
Affected Trust Assets allocated to one or more Sub-Trusts, then such
Liability shall be borne in accordance with Section 3.04, and the Titling
Trustee, at the direction of the Servicer, shall transfer periodically from
the related SUBI Collection Accounts to the Lease Funding Account each
Sub-Trust's appropriate share of such aggregate Liabilities of the Titling
Trust.
Prior to the funding of the Lease Funding Account from collections on
outstanding Contracts or otherwise, the UTI Beneficiary will advance monies to
fund the origination of Contracts as described in the UTI Supplement. The UTI
Supplement or any SUBI Supplement may provide that all or any portion of the
collections on the related UTI Assets or SUBI Assets will be deposited in the
Lease Funding Account or the related SUBI Lease Funding Account for a period of
time specified therein. Prior to the creation of a SUBI, the expenses of the
Titling Trust will be advanced by the UTI Beneficiary or funded from collections
on the Contracts in the UTI Portfolio, as more fully described in the UTI
Supplement. Thereafter, during any period during which there are no monies on
deposit in the Lease Funding Account, expenses of the Titling Trust will be
advanced by the UTI Beneficiary as and to the extent provided in the UTI
Supplement and each SUBI Supplement.
(d) All or a portion of the funds deposited into the Lease Funding Account
shall be separately invested by the Titling Trustee from time to time at the
direction of the UTI Beneficiary or its designee in any of the Permitted
Investments; provided, however, that should the terms of any Securitized
Financing impose any more stringent limits on the types or tenors of permitted
investments in the Lease Funding Account than are provided for in the definition
of Permitted Investments, such limits shall apply thereto for the period
specified in the related Transaction Documents. The Servicer is hereby made the
designee of the UTI Beneficiary for such purpose. All income, gain or loss from
investment of monies in the Lease Funding Account shall, unless otherwise
specified in the Transaction Documents with respect to any Securitized
Financing, be for the account of the UTI Beneficiary; provided that each such
investment shall be made in the name of the Titling Trustee, its nominee or its
Financial Intermediary. If at any time the relevant Beneficiary or its designee
shall not have given the Titling Trustee a timely investment directive with
respect to any account, the Titling Trustee shall invest and reinvest any monies
in such account(s) in a mutual fund offered by the Trust Agent or an affiliate
thereof meeting the requirements of clause (i) of the definition of Permitted
Investments.
-27-
SECTION 7.02 RELATIONSHIP TO SECURITIZED FINANCINGS.
(a) All funds in each SUBI Collection Account (other than any DE MINIMIS
amount necessary to maintain the account), however derived, to the extent not
required to fund that SUBI's share of Trust Liabilities or to fund any Trust
Asset Transfer into that SUBI Sub-Trust as provided for in the related SUBI
Supplement, shall be reinvested or paid out in accordance with the terms and
provisions hereof or of such SUBI Supplement.
(b) A UTI Pledge shall be recognized by the Titling Trustee for purposes
of this Agreement only if the UTI Beneficiary shall have given the Titling
Trustee written notice of such UTI Pledge and the name and address of the
related pledgee. During any period in which the Titling Trustee has neither
received notice from any pledgee of a UTI Pledge nor otherwise obtained actual
knowledge to the effect that (i) there is any sum due with respect to any
Securitized Financing secured by a UTI Pledge not otherwise timely paid by a UTI
Beneficiary (after any applicable grace period), or (ii) there is any
outstanding and uncured other default by a UTI Beneficiary with respect to any
such Securitized Financing (after any applicable grace period), the Titling
Trustee, promptly upon receipt of a written demand therefor accompanied by a
determination by such UTI Beneficiary (or any Servicer on its behalf) as to the
amount of Excess Funds, shall pay out to such UTI Beneficiary upon its request
the Excess Funds so requested.
(c) During any period as to which the Titling Trustee either has received
notice from any pledgee of a UTI Pledge or otherwise has obtained actual
knowledge that either of the defaults described in Sections 7.02(b)(i) and (ii)
has occurred and is continuing, the Titling Trustee shall (i) not create any new
SUBI, (ii) direct each Servicer not to accept any further assignments on behalf
of the Titling Trustee of Contracts or Leased Vehicles (other than as provided
for in Sections 7.03 and 7.04), and (iii) distribute to such pledgee of a UTI
Pledge, on demand, all Excess Funds that would otherwise be distributable to the
UTI Beneficiary.
SECTION 7.03 SUBI LEASE FUNDING ACCOUNTS.
In the event that for any reason (a) (i) a different Servicer shall be
engaged by the Titling Trustee to manage one or more SUBI Portfolios, on the one
hand, and the UTI Portfolio, on the other hand, or (ii) circumstances with
respect to any Securitized Financing secured by a UTI Pledge are such that (A)
the Titling Trustee has given to any Servicer the notice provided for in Section
7.02(c)(ii) or (B) if there is any outstanding UTI Pledge, the Titling Trustee
is notified that a Trust Asset Transfer into one or more SUBI Sub-Trusts would
cause a borrowing base deficiency (as defined in the documents related to such
Securitized Financing) to occur in any Securitized Financing secured by a UTI
Pledge, and (b) at such time the Titling Trustee, acting pursuant to any SUBI
Supplement or SUBI Servicing Supplement, would otherwise be causing its Servicer
to effect Trust Asset Transfers from the UTI Sub-Trust into one or more SUBI
Sub-Trusts: (1) the Titling Trustee shall establish and maintain in its name for
each SUBI a separate SUBI Lease Funding Account, (2) to the extent that the
Titling Trustee would, but for the conditions set forth in the foregoing clauses
(a) and (b), cause the transfer from any SUBI Collection Account to the Lease
-28-
Funding Account in connection with any Trust Asset Transfer, the Titling Trustee
shall instead cause the transfer of such funds from that SUBI Collection Account
to the SUBI Lease Funding Account established with respect to that SUBI, (3) the
Titling Trustee shall direct the Servicer then servicing the respective SUBI
Portfolio to acquire on behalf of the Titling Trust, for the account of that
SUBI Sub-Trust rather than for the UTI Sub-Trust, Contracts and Leased Vehicles
from Dealers, and (4) the Titling Trustee shall apply any such funds in any such
SUBI Lease Funding Account directly to reimburse the Servicer then servicing
that SUBI Portfolio for any payments made by it to Dealers in respect of such
Contracts and Leased Vehicles. In the event that Contracts and Leased Vehicles
are being acquired by any Servicer(s) on behalf of the Titling Trustee (on
behalf of the Titling Trust) both with respect to the UTI Sub-Trust and any SUBI
Sub-Trust simultaneously, the Titling Trustee shall first allocate all such
Contracts and Leased Vehicles to the SUBI Sub-Trusts until funds available for
such purpose in any SUBI Lease Funding Account shall be exhausted and then shall
allocate all remaining Contracts and Leased Vehicles to the UTI Sub-Trust.
SECTION 7.04 REBALANCING AFTER THIRD PARTY CLAIM.
To the extent that a third party claim against Titling Trust Assets is
satisfied out of Titling Trust Assets in proportions other than as provided in
Section 3.04, then, notwithstanding anything to the contrary contained herein,
the Titling Trustee shall promptly identify and reallocate (or cause the
Servicer to identify and reallocate) the remaining Titling Trust Assets among
the UTI Sub-Trust and each of the SUBI Sub-Trusts so that each shall bear the
expense of the third party claim as nearly as possible as if the burden of such
claim had been allocated as provided in Section 3.04.
ARTICLE VIII
TERMINATION
SECTION 8.01 TERMINATION OF THE TITLING TRUST.
(a) This Agreement and the Titling Trust shall terminate upon the last to
occur of (i) the payment to the Beneficiaries and each permitted purchaser,
assignee and pledgee thereof of interests in the Titling Trust of all amounts
and obligations required to be paid to them, and the expiration or termination
of all Securitized Financings by their respective terms, and (ii) the maturity
or liquidation and the disposition of all Titling Trust Assets and the
disposition to the Beneficiaries or their permitted purchasers, assignees or
pledgees of all net proceeds thereof. Notwithstanding the foregoing, in no
event shall the trust created by this Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late ambassador of the United States to the Court of St. Xxxxx,
living on the date of this Agreement.
(b) Upon the termination of the Titling Trust, (i) after satisfaction of
all creditors, if any, of the Titling Trust, the Titling Trustee shall
distribute the Titling Trust Assets to the Beneficiaries in accordance with this
Agreement and the outstanding UTI Supplements and SUBI Supplements; (ii) the
Beneficiaries to whom such Titling Trust Assets are distributed shall retitle or
cause to be
-29-
retitled any Leased Vehicles so distributed to those Beneficiaries
and shall pay or cause to be paid all applicable titling and registration fees
and taxes; and (iii) the Titling Trustee shall file or cause to be filed a
certificate of cancellation with the Delaware Secretary of State pursuant to
Section 3810(c) of the Delaware Act.
SECTION 8.02 TERMINATION AT THE OPTION OF BENEFICIARY. Notwithstanding
the provisions of Section 8.01, the Titling Trust shall be deemed terminated,
solely with respect to the Titling Trust Assets allocated to the related
Sub-Trust, and not as to any of the Titling Trust Assets allocated to any
other Sub-Trust, upon the written direction to the Titling Trustee by any
Beneficiary with respect to such Sub-Trust to revoke and terminate such
portion of the Titling Trust. Upon such termination of the Titling Trust
with respect to such a Sub-Trust, the Titling Trustee shall distribute to the
Beneficiary for such Sub-Trust all Titling Trust Assets allocated to such
Sub-Trust and shall cause the Certificates of Title to the Leased Vehicles
allocated to such Sub-Trust to be issued in the name of, or at the direction
of, such Beneficiaries. The Beneficiary to whom such Titling Trust Assets
are distributed shall then pay or cause to be paid all applicable titling and
registration fees and taxes.
SECTION 8.03 TITLING TRUSTEE ACTIONS UPON TERMINATION. Upon termination
of this Agreement, the Titling Trust and/or one or more Sub-Trusts pursuant to
Section 8.01 or 8.02, the Titling Trustee shall take such action as may be
requested by any Beneficiary to transfer the related Titling Trust Assets to
such Beneficiary or such other Person as such Beneficiary may designate,
including the execution of the assignment forms on the Certificates of Title and
any other instruments of transfer and assignment with respect to the Leased
Vehicles.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01 AMENDMENT. Prior to the first Securitized Financing, this
Agreement may be amended by written agreement between the UTI Beneficiary and
the Titling Trustee to correct or supplement any provision in this Agreement, to
cure any ambiguity, and to add, change or eliminate any other provision of this
Agreement with respect to matters or questions arising under this Agreement.
After the first Securitized Financing, any such amendment shall also require
such additional approvals, if any, as are required under documents relating to
each Securitized Financing.
SECTION 9.02 GOVERNING LAW. This Agreement shall in all respects be
governed by and construed in accordance with the internal laws of the State of
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 9.03 NOTICES. All demands, notices and communications under
this Agreement shall be in writing and shall be delivered or mailed by
registered or certified first class United States mail, postage prepaid,
return receipt requested; hand delivery; prepaid courier service; or
telecopier, and addressed in each case as follows: (a) if to the Grantor or
UTI Beneficiary, at Toyota Motor
-30-
Credit Corporation, 00000 X. Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Corporate Treasury Manager (Telecopier No. (000) 000-0000), (b) if
to the Titling Trustee, at TMTT, Inc., care of First Bank National
Association, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Office (at Telecopier No. (000) 000-0000), and (c)
if to the Trust Agent, First Bank National Association, 000 Xxxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Office
(at Telecopier No. (000) 000-0000) or at such other address as shall be
designated by the Grantor or Beneficiary, the Titling Trustee or the Trust
Agent in written notice to the other parties hereto. Delivery shall occur
only upon actual receipt or rejected tender of such communication by an
officer of the recipient entitled to received such notices located at the
address of such recipient for notices hereunder. A copy of all notices to
the Titling Trustee shall be delivered to First Bank National Association for
so long as it is a Trust Agent.
SECTION 9.04 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of any Certificates
or the rights of the holders thereof.
SECTION 9.05 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which so executed and delivered shall be deemed to be
an original, but all of which counterparts shall together constitute but one and
the same instrument.
SECTION 9.06 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained in this Agreement shall be binding upon, and inure to the benefit of,
the parties hereto and their permitted successors and assigns and the
Beneficiaries and their respective permitted successors and assigns. Any
request, notice, direction, consent, waiver or other instrument or action by a
Beneficiary shall bind the successors and assigns of such Beneficiary.
SECTION 9.07 TABLE OF CONTENTS AND HEADINGS. The Table of Contents and
Article and Section headings are for convenience of reference only and shall not
define or limit any of the terms or provisions hereof.
-31-
IN WITNESS WHEREOF, TMCC, the Titling Trustee and, solely for the limited
purposes set forth herein, First Bank National Association, as Trust Agent, have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
TOYOTA MOTOR CREDIT CORPORATION, as Grantor,
Initial Beneficiary and Servicer
By: ___________________________________
Name:
Title:
TMTT, Inc., as Titling Trustee
By: ___________________________________
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION,
as Trust Agent
By: ___________________________________
Name:
Title:
-32-
EXHIBIT A
CERTIFICATE OF TRUST OF
-----------------------
TOYOTA LEASE TRUST
------------------
THIS Certificate of Trust of Toyota Lease Trust (the "Titling Trust"),
dated as of September 24, 1996, is being duly executed and filed by First Bank
National Association, a national banking association, as Trust Agent, and TMTT,
Inc., a Delaware corporation, as trustee, to form a business trust under the
Delaware Business Trust Act (12 Del. Code Sections 3801 et seq.).
1. NAME. The name of the business trust formed hereby is Toyota
Lease Trust.
2. DELAWARE TRUSTEE. The name and business address of the trustee
of the Titling Trust in the State of Delaware is TMTT, Inc., 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx.
3. SERIES TRUST. The Titling Trust shall be a series trust and the
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular series shall be enforceable
against the assets of such series only, and not against the assets of the
Titling Trust generally.
4. EFFECTIVE DATE. This Certificate of Trust shall be effective
upon filing.
A-1
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the Titling
Trust, have executed this Certificate of Trust as of the date first-above
written.
FIRST BANK NATIONAL ASSOCIATION,
As Trust Agent
By: /s/ XXXXXXXX X. CHILD
--------------------------
NAME: XXXXXXXX X. CHILD
TITLE: VICE PRESIDENT
TMTT, INC., as Titling Trustee
By: /s/ XXXXXXXX X. CHILD
--------------------------
NAME: XXXXXXXX X. CHILD
TITLE: VICE PRESIDENT AND CFO
A-2
EXHIBIT B
FORM OF UTI SUPPLEMENT
B-1
EXHIBIT C
FORM OF SUBI SUPPLEMENT
C-1
ANNEX OF DEFINITIONS
Unless otherwise specified in the agreement to which this Annex of
Definitions is attached or which refers to this Annex of Definitions, the
following terms have the indicated meanings. Terms defined herein but not
directly or indirectly used or referenced in such agreement shall not be
deemed to have any meaning or significance with respect to such agreement.
"ADMINISTRATIVE EXPENSE" means any reasonable administrative cost or
expense associated with any relevant Securitization Trust and the Titling
Trust, as the context indicates, including reasonable fees and expenses of
attorneys and accountants.
"ADMINISTRATIVE LIEN" means any first lien specified upon any
Certificate of Title as deemed necessary and useful by the Servicer or the
UTI Beneficiary to provide for delivery of title documentation to the Titling
Trustee or its designee.
"ADMINISTRATIVE LIENHOLDER" means the Person or Persons identified as
such from time to time to the Titling Trustee by the Servicer and in whose
name one or more Administrative Liens are specified on Certificates of Title.
"ADVANCE" if a Transaction Document specifies that Advances are to be
made, unless otherwise provided in such Transaction Document, means an
advance to be made by the Servicer on the date specified in such Transaction
Document in respect of the related SUBI Collection Period and with respect to
each outstanding Contract that is included in the related SUBI Portfolio as
to which the scheduled Monthly Payment is delinquent or as to which payments
have been deferred by the Servicer which deferrals have resulted in any
diminution of the amount of Collections received in connection therewith
relative to the originally scheduled Monthly Payments, each such advance to
be in an amount equal to the aggregate amount of the Monthly Payments due
thereon during such SUBI Collection Period but not received during such SUBI
Collection Period.
"AFFECTED TRUST ASSETS" means a discrete Titling Trust Asset or group of
Titling Trust Assets impacted by any Liability (including contract, tort or
tax claims relating to one or more specific Contracts or Leased Vehicles) as
described in Section 3.04 of the Titling Trust Agreement.
"AFFILIATE" means, as to any Person, any other Person that (i) directly
or indirectly controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any employee benefit plan) or (ii) is an officer or
director of such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(x) to vote 5% or more of the securities (on a fully diluted basis) having
ordinary voting power for the election of directors or managing partners; or
(y) to direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.
"AUTHORIZED NEWSPAPER" means a newspaper of general circulation in the
Borough of Manhattan, The City of New York, printed in the English language
and customarily published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
"BENEFICIARY" means the UTI Beneficiary or any holder of a UTI
Certificate or SUBI Certificate, including any trust formed with respect to a
Securitized Financing but excluding the Titling Trustee, any Trust Agent, or
any trustee or trust agent with respect to a Securitized Financing or UTI
Pledge.
"BOOKED RESIDUAL VALUE" means the amount established at the
origination of the lease (based on documentation provided to the Dealers by
TMCC) representing the estimated wholesale market value at the Maturity Date
of the related Contract, each as set forth on the face of such Contract at
the time of origination including, with respect to a Contract for which the
Maturity Date of such Contract has been extended by the Servicer in
connection with any extension or deferral, the value as set forth above
reduced by payments in respect of principal received during the extension
period.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other day
on which banking institutions in Xxx Xxxx, Xxx Xxxx, Xxxxxxx, Xxxxxxxx or Los
Angeles, California are authorized or obligated by law, executive order or
governmental decree to be closed.
"CERTIFICATE OF TITLE" means a certificate of title or other evidence of
ownership of a Leased Vehicle issued by the Registrar of Titles in the
respective jurisdiction in which such Leased Vehicle is registered, which
Certificate of Title shall reflect as the owner of such Leased Vehicle
"Toyota Lease Trust", "TMTT, Inc., as Trustee of Toyota Lease Trust" or such
other similar designation as may be acceptable to any relevant Registrar of
Titles.
"CERTIFICATE OF TRUST" means the Certificate of Trust for the Titling
Trust required to be filed with the office of the Secretary of State of the
State of Delaware pursuant to Section 3810 of the Delaware Act, substantially
in the form set forth in the Titling Trust Agreement.
"CHARGED-OFF CONTRACT" means a Contract (a) with respect to which the
related Leased Vehicle has been repossessed and sold or otherwise disposed of
or (b) which has been written off by the Servicer in accordance with its
normal policies for writing off lease contracts other than with respect to
repossession.
-2-
"CLAIMS" means any losses, liabilities and expenses (including
reasonable attorney's and other professional fees and expenses) incurred in
connection with reasonable collection efforts or the defense of any suit or
action.
"CLASS" means all Certificates whose form is identical except for
variation in denomination, principal amount or owner.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"CLOSING DATE" means, with respect to any Securitized Financing, the
date specified as such in the related Transaction Documents.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLECTION PERIOD" means, with respect to any Distribution Date, the
calendar month preceding such Distribution Date.
"COLLECTIONS" means, with respect to any Collection Period, all net
collections received in respect of the Contracts and Leased Vehicles during
such Collection Period, including Monthly Payments and Payments Ahead that
represent Monthly Payments due during such Collection Period; Prepayments,
Advances, Net Matured Leased Vehicle Proceeds, Net Repossessed Vehicle
Proceeds and other Net Liquidation Proceeds, less (i) amounts representing
Payments Ahead with respect to future Collection Periods and (ii) Additional
Loss Amounts in respect of such Collection Period.
"COMMISSION" means the Securities and Exchange Commission, and any
successor thereto.
"CONTINGENT AND EXCESS LIABILITY INSURANCE POLICIES" means,
collectively, the contingent liability insurance policies maintained or to be
maintained by TMCC providing coverage for bodily injury and property damage
suffered by third persons caused by the operation of any vehicle that is a
Leased Vehicle, and each of the excess liability insurance policies
maintained or to be maintained by TMCC with third party insurers providing
excess insurance coverage as to such liabilities.
"CONTRACT" means any of the fixed rate retail closed-end lease
contracts (and all proceeds thereof) originated in connection with the lease
of the Leased Vehicles that are or were originated by Dealers pursuant to and
in conformity with Dealer Agreements between such Dealers and
-3-
the titling trust, the rights to which have been assigned to the Titling
Trust, or the Titling Trustee on behalf of the Titling Trust, in accordance
with such Dealer Agreements.
"CONTRACT DOCUMENTS" means, with respect to each Contract, (i) the fully
executed Contract, (ii) the related Certificate of Title (or the application
therefor if the Certificate of Title has not been received), (iii) any
written agreements modifying such Contract (including any written extension
thereof), (iv) all related credit applications, factory invoices, Dealer
worksheets, written records of certification of information provided in the
credit application and odometer statements required by applicable law, (v)
documents related to the provision of insurance and (vi) all other documents
relating to such Contract and retained by the Servicer.
"CONTRACT RECORD" means all data maintained by the Servicer (including,
without limitation, computerized records), together with all operating
software and appropriate documentation, relating directly to or maintained in
connection with the servicing of the Contracts.
"CORPORATE TRUST OFFICE" means the office of the Titling Trustee or
Trust Agent, as indicated by the context. As of October 1, 1996, the
Corporate Trust Office is located at 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Office. After October 1,
1996, Corporate Trust Office will mean the corporate trust office designated
in writing to the Servicer and to the Beneficiaries by the Titling Trustee,
Trust Agent or any successor thereto, as the case may be.
"CREDIT AND COLLECTION POLICY" means those credit and collection
policies and practices of the Servicer, as applied by the Servicer, with
respect to the origination and servicing of Contracts and related Leased
Vehicles as they may be amended, supplemented, or modified by the Servicer
from time to time.
"CURRENT CONTRACT" means a Contract that is not a Charged-off Contract,
a Matured Contract, a Liquidated Contract or an Additional Loss Contract.
"DEALER" means a motor vehicle dealer, located in a State permitted by
the Origination Criteria, that has entered into a Dealer Agreement.
"DEALER AGREEMENT" means that certain Retail Motor Vehicle Lease
Agreement substantially in the form to be attached as an exhibit to the UTI
Supplement or in such other form as may be approved from time to time entered
into between the Titling Trust and a Dealer setting forth the respective
rights and obligations of the Titling Trust and the Dealer, acting as an
independent contractor, with respect to the Dealer's entering into Contracts.
"DELAWARE ACT" means the Delaware Business Trust Act 12 Del. Code,
Sections 3801 ET SEQ.
-4-
"DELAWARE PARTNERSHIP ACTS" means the Delaware Revised Uniform Limited
Partnership Act and the Delaware Uniform Partnership Act, in each case as
amended.
"DETERMINATION DATE" means, with respect to any Distribution Date, the
second Business Day prior to such Distribution Date.
"DISTRIBUTION DATE" means, with respect to the UTI and a Collection
Period, the twenty-fifth day of the following month, or if that day is not a
Business Day, the next Business Day, beginning with October 25, 1997.
"DTC" means The Depository Trust Company and its successors.
"DUE DATE" with respect to any Contract, means the monthly date
specified in such Contract on which the scheduled Monthly Payment is due.
"ELIGIBLE ACCOUNT" means (i) an account maintained with a federal or
state chartered depository or trust institution, the short-term unsecured
debt obligations of which have the Required Rating, (ii) a segregated trust
account maintained with a depository or trust institution in its corporate
trust department or (iii) an account otherwise acceptable to each Rating
Agency without reduction or withdrawal of its rating of any related Rated
Certificates, as evidenced by a letter from each Rating Agency.
"ELIGIBLE CONTRACT"
-5-
with respect to eligibility for origination in the name of the Titling Trust,
means a UTI Eligible Contract, and with respect to eligibility for inclusion
in any SUBI Sub-Trust means a UTI Eligible Contract that also satisfies the
definition of Eligible Contract applicable to such SUBI Sub-Trust as set
forth in the related SUBI Servicing Supplement.
"ELIGIBLE SERVICER" means TMCC or an entity that is servicing a
portfolio of automobile and/or light truck retail installment lease
contracts, that is legally qualified and has the capacity to service the
Contracts and that has demonstrated the ability to service a portfolio of
similar lease contracts professionally and competently in accordance with
high standards of skill and care.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute of similar import,
together with the regulations thereunder, in each case as in effect from time
to time. References to sections of ERISA shall be construed to refer also to
any successor sections.
"ERISA AFFILIATE" means each person (as defined in Section 3(9) of
ERISA) which, together with the identified person, would be deemed to be a
member of the same "controlled group" within the meaning of Section 414(b),
(c), (m) and (o) of the Code or Section 4001 of ERISA.
"EXCESS FUNDS" means, as of any date, the amount of funds in the Lease
Funding Account or otherwise held by the Servicer or the Titling Trustee in
respect of the UTI in excess of those (i) required to maintain the account to
meet all existing Liabilities of the Titling Trust to be paid out of such
account (after accounting for all transfers to be made from any SUBI Account
on or before such date) and (ii) required to be retained in such account as
reserves for reasonably anticipated Liabilities of the Titling Trust (after
taking into account all transfers to be made to such Lease Funding Account
out of any SUBI Account in respect of that SUBI's proportionate share of such
anticipated Liabilities).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXTENSION FEE" means, with respect to any Contract that has had its
Maturity Date extended as contemplated in the Titling Trust Agreement or any
SUBI Servicing Supplement, any payment required to be made by the Obligor in
connection with such extension.
"FDIC" means the Federal Deposit Insurance Corporation and its
successors.
"FINANCIAL INTERMEDIARY" means a financial intermediary, as such term is
defined in Section 8-313(4) of the UCC.
"FIRST BANK" means First Bank National Association, a national banking
association.
-6-
"FNMA" means the Federal National Mortgage Association and its
successors.
"FUNDING ADVANCE" means the amount of each advance of the face amount or
any portion of a Contract (including with respect to any taxes, fees or
charges payable to the related Dealer or any third party at the time of the
funding thereof) made by the UTI Beneficiary or any agent thereof in
connection with the funding of such Contract that has not previously been
reimbursed thereto.
"FUNDING ADVANCE REIMBURSEMENT AMOUNT" means, with respect to any
Distribution Date, the aggregate amount of Funding Advances made during the
related Collection period and not previously reimbursed to the UTI
Beneficiary from Collections on the related Contracts or otherwise.
"FUNDING ADVANCE REIMBURSEMENT DATE" means a Distribution Date on which
a Funding Advance Reimbursement Amount is to be made.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
government.
"GRANTOR" means TMCC in its capacity as Grantor.
"INDEPENDENT" with respect to any specified Person means another Person
who (a) is in fact independent of TMCC and any of its Affiliates; (b) does
not have any direct financial interest or any material indirect financial
interest in TMCC or any of its Affiliates; and (c) is not connected with TMCC
or any of its Affiliates as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions. Whenever
it is provided in the Titling Trust Agreement or any other agreement adopting
this definition that any Independent Person's opinion or certificate shall be
furnished, such Independent Person shall be deemed to be Independent to the
satisfaction of the recipient thereof if such opinion or certificate shall
state that the signer has read this definition and that the signer is in fact
Independent within the meaning hereof.
"INDEPENDENT ACCOUNTANT" means an Accountant, who may also be the
Accountant who audits the books of TMCC or any of its Affiliates, who is
Independent with respect to TMCC and its Affiliates as contemplated by Rule
101 of the Code of Professional Conduct of the American Institute of
Certified Public Accountants.
"INDEPENDENT DIRECTOR" means a director of the Transferor who shall at
no time be (i) a director, officer, employee or former employee of the
Transferor or any Affiliate thereof, (ii) a natural person related to any
director, officer, employee or former employee of the Transferor or any
Affiliate thereof, (iii) a holder (directly or indirectly) of any voting
securities of the Transferor or any Affiliate thereof, or (iv) a natural
person related to a holder (directly or indirectly) of any voting securities
of the Transferor or any Affiliate thereof.
-7-
"INSOLVENCY EVENT" means, with respect to any Person:
(i) Such Person shall file a petition commencing a voluntary case under
any chapter of the Federal bankruptcy laws; or such Person shall file a
petition or answer or consent seeking reorganization, arrangement,
adjustment, or composition under any other similar applicable Federal law, or
shall consent to the filing of any such petition, answer, or consent; or such
Person shall appoint, or consent to the appointment of a custodian, receiver,
liquidator, trustee, assignee, sequestrator or other similar official in
bankruptcy or insolvency of it or of any substantial part of its property, or
shall make any assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due; or
(ii) any order for relief against such Person shall have been entered by
a court having jurisdiction in the premises under any chapter of the Federal
bankruptcy laws; or a decree or order by a court having jurisdiction in the
premises shall have been entered approving as properly filed a petition
seeking reorganization, arrangement, adjustment, or composition of such
Person under any other similar applicable Federal Law; or a decree or order
of a court having jurisdiction in the premises for the appointment of a
custodian, receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of such Person or of any
substantial part of its property, or for the winding up or liquidation of its
affairs, shall have been entered.
"INSURANCE COSTS" means, with respect to any Insurance Policy, the
premiums therefor, any deductibles and any coinsurance payments.
"INSURANCE POLICIES" means any residual value insurance policy and any
policy of comprehensive, collision, public liability, physical damage,
personal liability, credit accident or health, credit life or unemployment
insurance maintained by the Grantor, any Obligor under any Contract or any
Affiliate of any such Person to the extent that any such policy covers or
applies to any Contract, Leased Vehicle or the ability of any Obligor under
any Contract to make required payments with respect to a Contract or the
related Leased Vehicle; provided that, with respect to any SUBI, "Insurance
Policies" means only such of the foregoing policies as relate to the related
SUBI Portfolio and, in the case of such insurance policies that relate to
Contracts or related assets in more than one SUBI Portfolio, such policies
only insofar as they, or the proceeds thereof, relate to Contracts or related
assets included in the related SUBI Portfolio.
"INSURANCE PROCEEDS" with respect to any Collection Period, means
recoveries pursuant to each Insurance Policy obtained and maintained by the
Obligor pursuant to a Contract, or by the Titling Trust or the Servicer with
respect to such Contract or the related Leased Vehicle (or payment by TMCC of
the deductibles as to which it has indemnified the Titling Trust).
"INTEREST COLLECTIONS" means, with respect to any Collection Period, an
amount equal to the amount by which Collections exceed Principal Collections
with respect to such Collection Period.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended.
-8-
"LEASE FUNDING ACCOUNT" means the Lease Funding Account established and
maintained in accordance with Section 7.01(a) of the Titling Trust Agreement.
"LEASED VEHICLE" means the new or used (including any dealer
demonstrator vehicle or manufacturers' program vehicle) automobile, minivan,
sports utility vehicle or light duty truck, together with all accessories,
additions and parts constituting a part thereof and all accessions thereto,
which is the subject of a Contract.
"LEASE RATE" means the imputed interest rate set forth in each Contract
on the basis of which the lessor identifies the portions of each Monthly
Payment that constitute principal or interest, respectively.
"LIABILITIES" means all losses, liabilities, claims, damages, expenses
(including related reasonable legal and other professional fees and
expenses), taxes, actions and suits of any kind.
"LIEN" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind other than tax liens, mechanics' liens and any liens
that attach to property, as the context may require, by operation of law.
"LIQUIDATED CONTRACT" means a Contract that has been the subject of a
Prepayment in full or otherwise has been paid in full or, in the case of a
Charged-off Contract, a Contract as to which the Servicer has determined that
the final amounts in respect thereof have been paid.
"LIQUIDATION EXPENSES" means reasonable out-of-pocket expenses
(including related attorneys' fees and expenses) incurred by the Servicer in
connection with the attempted realization of the full amounts due or to
become due under any Contract, including expenses incurred in connection with
the repossession of the related Leased Vehicle, the sale of such Leased
Vehicle, whether upon its repossession or return (if such Contract is a
Matured Contract), any collection effort (whether or not resulting in a
lawsuit against the Obligor under such Contract) or any claim under an
Insurance Policy.
"LIQUIDATION PROCEEDS" means gross amounts received by the Servicer or
the Titling Trustee, on behalf of the Titling Trust (before reimbursement for
Liquidation Expenses), in connection with the realization of the full amounts
due or to become due under any Contract, whether from the sale or other
disposition of the related Leased Vehicle (without regard to whether such
proceeds exceed the Booked Residual Value), the proceeds of any collection
effort (whether or not resulting in a lawsuit against the Obligor under such
Contract), the proceeds of recourse payments by Dealers, receipt of Insurance
Proceeds, or collection of amounts due hereunder in respect of such Contract
(including the application of Security Deposits) or otherwise.
"MATURED CONTRACT" means any Contract that has reached its Maturity Date.
-9-
"MATURED VEHICLE", as of any date, means any Leased Vehicle, the related
Contract of which has reached its Maturity Date, and which Leased Vehicle has
been returned to the Servicer on behalf of the Titling Trust (or the Titling
Trustee on behalf of the Titling Trust), regardless of the status of the sale
or disposition of such Leased Vehicle as of the date of such return.
"MATURITY DATE" means, with respect to any Contract, the date on which
the last scheduled Monthly Payment shall be due and payable, as such date may
be extended in accordance with the provisions of the UTI Supplement and any
applicable SUBI Supplement or SUBI Servicing Supplement.
"MONTHLY PAYMENT" means, with respect to any Contract, the amount of
each fixed monthly payment payable by the related Obligor in accordance with
the terms thereof, net of any portion of such monthly payment that represents
collections allocable to payments to be made by the Obligor for sales taxes
or similar items, and excluding any portion thereof relating to the payment
of insurance premiums (unless such premiums are included in the related
capitalized cost), late payment charges, extension fees or other similar
items.
"MONTHLY REMITTANCE CONDITIONS" means that (i) TMCC is the Servicer,
(ii) either (a) TMCC's short-term unsecured debt is rated at least P-1 by
Moody's and A-1 by Standard & Poor's (so long as Moody's and Standard &
Poor's are Rating Agencies), or (b) certain arrangements are made that have
been approved in writing by each Rating Agency that has rated any class of
securities issued in connection with a securitized financing at the request
of the Grantor and (iii) no Early Amortization Event or Event of Servicing
Termination as defined in any SUBI Supplement shall have occurred and be
continuing.
"MOODY'S" means Xxxxx'x Investors Service, Inc., and its successors.
"OBLIGEE" means each Person who is the lessor under a Contract or the
assignee thereof, including the Titling Trust or the Titling Trustee on
behalf of the Titling Trust.
"OBLIGOR" means the Person who is the lessee under a Contract.
"OFFICER'S CERTIFICATE" means, with respect to any Person, a
certificate signed by the President, any Vice President, the Chief Financial
Officer, the Chief Accounting Officer, the Treasurer or any Assistant
Treasurer, the Secretary or any Assistant Secretary thereof.
"OPINION OF COUNSEL" means, with respect to any Person, a written
opinion of counsel which counsel shall be reasonably acceptable to the
indicated recipient; provided that, in the case of opinions to be delivered
by TMCC or TLI, such counsel may be an employee of or outside counsel to the
Transferor or the Servicer.
-10-
"ORIGINATION CRITERIA" means, with respect to any Contract, TMCC's
written underwriting criteria in effect as of the date of origination of any
specific Contract, and as the same may be amended, supplemented or modified
from time to time by TMCC in the ordinary course of business.
"OTHER PROCEEDS" means monies arising from the sale, exchange, lease,
collection or other disposition of lease contracts and related leased
vehicles or other receivables that are not titling Trust Assets but as to
which the Servicer is acting as servicer.
"OUTSTANDING PRINCIPAL BALANCE" means, with respect to any Contract as
of any date, the amount to which the capitalized cost of a Contract has been
amortized at any point in time, which will be an amount equal to (i) the sum
of all Monthly Payments remaining to be made, including overdue Monthly
Payments (provided, however, that Payments Ahead received but not yet applied
are deemed to be Monthly Payments remaining to be made), less any unearned
finance or other similar unearned lease charges relating to the period
beginning after the next succeeding Payment Date on such Contract (determined
on a constant yield basis) in accordance with the Servicer's usual practices,
plus (ii) the Booked Residual Value of the related Leased Vehicle. The term
"principal amount" and "principal balance" as used in relation to any
Contract or Contracts shall refer, as of such date of determination, to the
Outstanding Principal Balance of such Contract or Contracts computed as of
such time.
"PAYMENT AHEAD" means any payment of one or more Monthly Payments (not
constituting a Prepayment) remitted by an Obligor with respect to a Contract
in excess of the Monthly Payment due with respect to such Contract, which
sums the Obligor has instructed the Servicer to hold and apply to Monthly
Payments due in one or more immediately subsequent calendar months.
"PAYMENT DATE" means, as to each Contract, the date each month therein
set forth as the date Monthly Payments are due.
"PERMITTED INVESTMENTS" means any one or more of the following
instruments, obligations or securities, in each case subject to any further
criteria specified in the related SUBI Supplement:
(a) obligations of, and obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any agency
thereof, provided such obligations are backed by the full faith and credit of
the United States;
(b) general obligations of or obligations guaranteed by FNMA or any
state of the United States, the District of Columbia or the Commonwealth of
Puerto Rico then rated the highest available credit rating of each Rating
Agency for such obligations;
(c) certificates of deposit issued by any depository institution or
trust company (including any Securitization Trustee) incorporated under the
laws of the United States or of any state thereof, the District of Columbia
or the Commonwealth of Puerto Rico and subject to supervision and
-11-
examination by banking authorities of one or more of such jurisdictions,
provided that the short-term unsecured debt obligations of such depository
institution or trust company are then rated the highest available rating of
each Rating Agency for such obligations;
(d) certificates of deposit, demand or time deposits of, bankers'
acceptances issued by, or federal funds sold by, any depository institution
or trust company (including any Securitization Trustee) incorporated under
the laws of the United States or any State and subject to supervision and
examination by federal and/or State banking authorities and the deposits of
which are fully insured by the Federal Deposit Insurance Corporation, so long
as at the time of such investment or contractual commitment providing for
such investment either such depository institution or trust company has the
Required Rating or such Securitization Trustee shall have received a letter
from each Rating Agency to the effect that such investment would not result
in the qualification, downgrading or withdrawal of the ratings then assigned
to any Rated Certificates;
(e) certificates of deposit issued by any bank, trust company, savings
bank or other savings institution and fully insured by the FDIC;
(f) repurchase obligations held by any Securitization Trustee that are
acceptable to the Securitization Trustee with respect to any security
described in clauses (a), (b) or (g) hereof or any other security issued or
guaranteed by any other agency or instrumentality of the United States, in
either case entered into with a federal agency or a depository institution or
trust company (acting as principal) described in clause (d) above (including
any Securitization Trustee); PROVIDED, HOWEVER, that repurchase obligations
entered into with any particular depository institution or trust company
(including such Securitization Trustee) will not be Permitted Investments to
the extent that the aggregate principal amount of such repurchase obligations
with such depository institution or trust company held by such Securitization
Trustee on behalf of the related Securitization Trust or of all of the
Titling Trust Assets shall exceed 10% of either the Aggregate Net Investment
Value or the aggregate unpaid principal balance or face amount, as the case
may be, of all Permitted Investments so held thereby;
(g) interests in any open-end or closed-end management type investment
company or investment trust (i) registered under the Investment Company Act,
the portfolio of which is limited to the obligations of, or guaranteed by,
the United States and to agreements to repurchase such obligations, which
agreements, with respect to principal and interest, are at least 100%
collateralized by such obligations marked to market on a daily basis and the
investment company or investment trust shall take delivery of such
obligations either directly or through an independent custodian designated in
accordance with the Investment Company Act and (ii) acceptable to each Rating
Agency (as approved in writing by each Rating Agency) as collateral for
securities having ratings equivalent to the ratings of the Rated Certificates
on the Closing Date;
(h) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any State so
long as at the time of such investment or contractual commitment providing
for such investment (i) the long-term, unsecured debt of such
-12-
corporation has the highest available rating from each Rating Agency, (ii)
such corporation is TMCC and TMCC's long term debt obligations shall at such
time have a rating of at least Aa3 from Moody's, and TMCC's short term debt
obligations shall at such time have a rating of at least A-1+ from Standard &
Poor's and at least P-1 from Moody's or (iii) a Securitization Trustee shall
have received a letter from each Rating Agency to the effect that such
investment would not result in the qualification, downgrading or withdrawal
of the ratings then assigned to any Rated Certificates or commercial paper or
other short-term debt having the Required Rating;
(i) money market funds so long as such funds are rated Aaa by Moody's
(so long as Xxxxx'x is a Rating Agency) and AAAm by Standard & Poor's (so
long as Standard & Poor's is a Rating Agency), and any other fund for which a
Securitization Trustee or an Affiliate of such Securitization Trustee serves
as an investment advisor, administrator, shareholder servicing agent and/or
custodian or subcustodian, provided that any shares of such funds have a
credit rating of at least Aaa by Moody's (so long as Xxxxx'x is a Rating
Agency) and AAAm by Standard & Poor's (so long as Standard & Poor's is a
Rating Agency) and notwithstanding that (i) such Trustee or Affiliate charges
and collects fees and expenses from such funds for services rendered, (ii)
such Trustee charges and collects fees and expenses for services rendered
pursuant to the related Securitization Trust Agreement or under the Trust
Agency Agreement and (iii) services performed for such funds and pursuant to
either such Agreement may converge at any time. Each of the Transferor and
the Servicer hereby specifically authorizes each such Trustee or Affiliate
thereof to charge and collect all fees and expenses from such funds for
services rendered to such funds, in addition to any fees and expenses such
Trustee may charge and collect for services rendered pursuant to either such
Agreement; and
(j) such other investments acceptable to each Rating Agency (as
approved in writing by each Rating Agency) as will not result in the
qualification, downgrading or withdrawal of the ratings then assigned to any
Rated Certificates by such Rating Agency;
provided that each of the foregoing investments shall mature no later than
the day specified in the related SUBI Supplement, and shall be required to be
held to such maturity.
None of the foregoing will be considered a Permitted Investment if:
(i) it constitutes a certificated security, bankers'
acceptance, commercial paper, negotiable certificate of deposit
or other obligation that constitutes an "instrument" within the
meaning of Section 9-105(1)(i) of the UCC and is susceptible of
physical delivery unless it is transferred to the Titling
Trustee, a Securitization Trustee or its Financial Intermediary
in accordance with Sections 8-313(1)(a), 8-313(1)(d)(i) or
8-313(1)(g) of the UCC, and such Trustee obtains evidence that
any such property that is in registrable form has been
registered in its name or the name of its Financial
Intermediary, its custodian or its nominee;
-13-
(ii) it constitutes a book-entry security held through
the Federal Reserve System pursuant to federal book-entry
regulations, unless, in accordance with applicable law, (A) a
book-entry registration thereof is made to an appropriate
book-entry account maintained with a Federal Reserve Bank by
the Titling Trustee, a Securitization Trustee or by a custodian
therefor, (B) a deposit advice or other written confirmation of
such book-entry registration is issued to such Trustee or
custodian, (C) any such custodian makes entries in its books
and records identifying that such book-entry security is held
through the Federal Reserve System pursuant to federal
book-entry regulations and belongs to such Trustee and
indicating that such custodian holds such Permitted Investment
solely as agent for such Trustee, (D) such Trustee makes
entries in its books and records establishing that it holds
such security solely as Titling Trustee or Securitization
Trustee for the Titling Trust or the related Securitization
Trust, as the case may be, and (E) any additional or
alternative procedures as may hereafter become necessary to
effect complete transfer of ownership thereof to such Trustee
are satisfied, consistent with changes in applicable law or
regulations or the interpretation thereof; or
(iii) it constitutes an uncertificated security under Article 8 of the
UCC that is not governed by clause (ii) above, unless the
transfer to, and ownership thereof by, the Titling Trustee or
Securitization Trustee, its Financial Intermediary, its
custodian or its nominee by the issuer of such security is
registered by the issuer thereof.
Notwithstanding anything to the contrary contained in this definition,
no Permitted Investment may be purchased at a premium and no Permitted
Investment shall be an interest only instrument. Any of the foregoing which
constitutes an uncertificated security shall not be considered a Permitted
Investment if: (i) a notation of the right of the issuer thereof to a lien
thereon is contained in the initial transaction statement therefor sent to
the Titling Trustee; (ii) the Titling Trustee has notice or actual knowledge
of (A) any restriction on the transfer thereof imposed by the issuer thereof,
or (B) any adverse claim, or a notation of any such restriction or of any
specific adverse claim as to which the issuer has a duty under the law of the
state in which the Corporate Trust Office is located at the time of
registration is contained in the initial transaction statement therefor sent
to the Titling Trustee; or (iii) to the Titling Trustee's actual knowledge, a
creditor has served legal process upon the issuer thereof at its chief
executive office in the United States which legal process attempts to place a
Lien thereon prior to the registration thereof in the name of the Titling
Trustee.
For purposes of this definition, any reference to the highest available
credit rating of an obligation shall mean the highest available credit rating
for such obligation (excluding any "+" signs associated with such rating), or
such lower credit rating (as approved in writing by each Rating Agency) as
will not result in the qualification, downgrading or withdrawal of the rating
then assigned to any Rated Certificates by such Rating Agency. Also for
purposes of this definition, any reference to a Rating Agency refers only to
a Rating Agency that has, at the request of the Grantor, rated securities
issued in the specific securitized financing as to which this definition is
being applied.
-14-
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated association, Governmental Authority or any other entity.
"PLAN" means an "employee benefit plan," as such term is defined in
Section 3(3) of ERISA.
"PREPAYMENT" means, with respect to any Contract other than a
Charged-off Contract, payment to the Servicer of 100% of the Discounted
Principal Balance of such Contract, including an amount equal to the Residual
Value of the related Leased Vehicle.
"PRINCIPAL COLLECTIONS" means, with respect to any Collection Period,
all Collections allocable to the principal component of any Contract,
discounted to the extent such Contract is a Discounted Contract.
"RATED CERTIFICATES" means the securities of any class or series issued
in a Securitized Financing that have been rated by a Rating Agency at the
request of the Grantor.
"RATING AGENCY" means each nationally recognized statistical rating
organization that rates a security in a Securitized Financing at the request
of the Grantor as of the related Closing Date at the request of the
Transferor and continues to do so.
"RECORD DATE" means, with respect to each Distribution Date, (i) in the
case of the Class A Certificates, the calendar day immediately preceding
such Distribution Date (or, if Definitive Certificates have been issued, the
last day of the immediately preceding calendar month) and (ii) in the case of
the Class B Certificates, the last day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"REGISTRAR OF TITLES" means any applicable department, agency or
official in a State responsible for accepting applications for, and
maintaining records regarding, Certificates of Title and liens thereon.
-15-
"REQUIRED RATING" means a rating on commercial paper or other short term
unsecured debt obligations of Prime-1 by Moody's so long as Xxxxx'x is a
Rating Agency and A-1+ by Standard & Poor's so long as Standard & Poor's is a
Rating Agency; and any requirement that deposits or debt obligations have the
"Required Rating" shall mean that such deposits or debt obligations have the
foregoing required ratings from Moody's and Standard & Poor's.
"RESIDUAL UTI CERTIFICATE" has the meaning set forth in Section 11.02 of
the UTI Supplement.
"RESIDUAL UTI UNIT" has the meaning set forth in Section 11.01 of the
UTI Supplement.
"RESIDUAL VALUE" means the actual Liquidation Proceeds, net of
Liquidation Expenses, received with respect to the disposition of any Leased
Vehicle, whether at maturity of the related Contract or otherwise, and
whether or not such Residual Value exceeds the Booked Residual Value.
"RESIDUAL VALUE INSURANCE POLICY" means Residual Value Insurance Policy
number RVI 97001 issued effective October 1, 1996 by Toyota Motor Insurance
Corporation of Vermont, in favor of the Titling Trust and naming the TMCC as
additional insured and reinsured by RVI Guaranty Co., Ltd.
"RESPONSIBLE OFFICER" means an officer of the Titling Trustee or
Securitization Trustee assigned to the relevant Corporate Trust Office,
including the President, any Vice President, any trust officer, the corporate
Secretary and any assistant corporate Secretary or any other officer
performing functions similar to those performed by the persons who at the
time shall be such officers, and any other officer thereof to whom a matter
is referred because of his or her knowledge of and familiarity with the
particular subject.
-16-
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIZATION TRUSTEE" means any trustee appointed as such under the
Transaction Documents with respect to any Securitized Financing.
"SECURITIZED FINANCING" means (i) any financing transaction of any sort
undertaken by the related Beneficiary based on or secured by, directly or
indirectly, Titling Trust Assets, the UTI or any UTI Unit, any SUBI or any
interest in any of the foregoing, (ii) any sale by a Beneficiary of any
interest in one or more SUBIs or (iii) any other asset securitization,
secured loan or similar transaction involving Titling Trust Assets or any
beneficial interest therein or in the Titling Trust.
"SECURITY DEPOSIT" means the security deposit, reconditioning reserve or
similar deposit paid by an Obligor at the time of origination of the related
Contract; provided that the Titling Trust Assets shall include such deposits
only to the extent actually applied to cover excess wear and tear charges or
may otherwise lawfully be retained by the Titling Trust as lessor or its
agents in respect of fees, charges or reimbursable advances, payments or
expenses thereby under the related Contract.
"SERVICER" means TMCC, in its capacity as servicer under the Titling
Trust Agreement, or any successor to TMCC in such capacity.
"SERVICER EXPENSES" means all reasonable amounts expended by the
Servicer in connection with its performance of its duties under the Titling
Trust Agreement, including those incurred in connection with the preparation,
execution and delivery of all legal documentation relating to the formation
of the Titling Trust and the servicing of the UTI Assets prior to the
creation of the first SUBI, the making of any requisite license or other
applications, filings and related filing fees in connection with the
commencement of origination of leases and the recordation of related
certificates of title in the name of the Titling Trust and the perfection of
security interests therein or the registration of any offering of securities
in any Securitized Financing, the costs and expenses of preparing and
delivering servicing, tax and other reports as set forth in the Titling Trust
Agreement and the costs and expenses of providing any monitoring, billing and
collection services with respect thereto, in each case including any
reasonable attorneys' fees and expenses, and in each case excluding any costs
and expenses to be paid out of the Servicing Fee specified in any supplement
to the Titling Trust Agreement.
-17-
"SERVICER REIMBURSEMENT" means the amount of any required reimbursement
to the Servicer of Servicer Expenses on a Closing Date or any other date
(whether a Distribution Date or otherwise) specified in the Transaction
Documents with respect to a Securitized Financing.
"SERVICER'S CERTIFICATE" means a certificate of an officer or other
authorized signatory of the Servicer completed and executed pursuant to
Section 5.01(b) of the related SUBI Servicing Supplement.
"SERVICING FEE" means (a) prior to the creation of the first SUBI, zero
and (b) after the creation of the first SUBI, the sum of each SUBI Servicing
Fee specified in a SUBI Supplement plus during any UTI Collection Period for
which TMCC is the Servicer, 1.00% of the outstanding balances of the
Contracts in the UTI Portfolio.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a division
of The McGraw Hill Companies, Incorporated, and its successors.
"STATE" means any state of the United States, the District of Columbia
and the Commonwealth of Puerto Rico in which, pursuant to the Origination
Criteria, an Eligible Contract may be originated.
"SUBI" means any "special unit of beneficial interest" in the Titling
Trust comprised of a beneficial interest in a SUBI Sub-Trust.
"SUBI ACCOUNT" means, with respect to a SUBI, the SUBI Collection Account
or the SUBI Lease Funding Account that is established and maintained in
connection therewith in accordance with Section 7.01(a) of the Titling Trust
Agreement.
"SUBI ASSETS" means, with respect to any SUBI, those Titling Trust Assets
that are identified as relating to and allocated to such SUBI by the Titling
Trustee upon the written direction of the UTI Beneficiary pursuant to the
Titling Trust Agreement and related SUBI Supplement.
"SUBI BENEFICIARY" means any Beneficiary that is a Beneficiary because it
is the holder or pledgee of a SUBI Certificate.
"SUBI CERTIFICATE" means, with respect to a SUBI, each of the
certificates evidencing such SUBI, substantially in the form included as an
exhibit to each SUBI Supplement, executed and delivered pursuant to the
related SUBI Supplement.
-18-
"SUBI COLLECTION ACCOUNT" means, with respect to a SUBI, any account
denominated as such that is established and maintained in accordance with
the related SUBI Supplement and SUBI Servicing Supplement.
"SUBI COLLECTION PERIOD" means, with respect to any SUBI, the period
identified as the "Collection Period" in the related Transaction Documents.
"SUBI LEASE FUNDING ACCOUNT" means, with respect to a SUBI, any account
denominated as such that is established and maintained in accordance with
the related SUBI Supplement and SUBI Servicing Supplement.
"SUBI PORTFOLIO" means, with respect to any SUBI, the related Contracts
and Leased Vehicles comprising the related SUBI Assets.
"SUBI SERVICING SUPPLEMENT" means any agreement supplementing the
servicing provisions of the Titling Trust Agreement that is executed by
TMCC, the Titling Trustee and one or more other parties in connection with a
Securitized Financing.
"SUBI SUB-TRUST" means a separate Sub-Trust of the Titling Trust (other
than the UTI Sub-Trust) that is established at the direction of the UTI
Beneficiary on the books and records of the Titling Trust by the Titling
Trustee and that is accounted for separately within the Titling Trust. The
Titling Trustee shall from time to time, as directed in writing by the UTI
Beneficiary, and subject to Section 3.01(d) of the Titling Trust Agreement,
identify or cause to be identified on the books and records of the Titling
Trust one or more separate Sub-Trusts to be accounted for separately within
the Titling Trust (each, a "SUBI Sub-Trust") and identify and allocate, or
cause to be identified and allocated, to such SUBI Sub-Trust on such books
and records certain Titling Trust Assets that are not then allocated to
another SUBI Sub-Trust. Upon such allocation, such related SUBI Assets shall
no longer be assets of, or allocated to, the UTI (unless and until
specifically reallocated to the UTI from that SUBI in accordance with the
related SUBI Supplement). Each SUBI shall constitute a separate series of
the Titling Trust pursuant to Section 3806(b)(2) of the Delaware Act and
shall represent the beneficial interest in such SUBI and the SUBI Assets
allocated thereto from time to time. Each SUBI shall be represented by one
or more separate SUBI Certificates issued pursuant to the related SUBI
Supplement. The Titling Trustee shall issue each SUBI Certificate to or upon
the order of the UTI Beneficiary.
"SUBI SUPPLEMENT" means any of the one or more supplements to the Titling
Trust Agreement, substantially in the form attached thereto as an exhibit,
the execution and delivery of which by the UTI Beneficiary and the Titling
Trustee in accordance with Section 3.01(c) of the Titling Trust Agreement
will effect the creation of a SUBI.
"SUB-TRUST" means any of the sub-trusts of the Titling Trust established
by the Titling Trustee as directed by the UTI Beneficiary from time to time,
and to which the Titling Trustee will allocate Titling Trust Assets
identified by the UTI Beneficiary, having the name and beneficiaries
-19-
designated by the UTI Beneficiary and being a separate series of the Titling
Trust pursuant to Section 3806(b)(2) of the Delaware Act.
"TITLE DOCUMENTS" with respect to any Leased Vehicle means the related
Certificate of Title and all related or ancillary documents or instruments
necessary for the recordation or transfer of title in each relevant
jurisdiction.
"TITLING TRUST" means Toyota Lease Trust, a Delaware business trust,
formed pursuant to the Titling Trust Agreement.
"TITLING TRUST AGREEMENT" means the Trust and Servicing Agreement dated
as of October 1, 1996, among TMCC, TMTT, Inc., as Titling Trustee, and, for
certain limited purposes, First Bank, as Trust Agent, as amended and restated
by the Amended and Restated Trust and Servicing Agreement also dated as of
October 1, 1996 among TMCC, TMTT, Inc., as Titling Trustee, and, for certain
limited purposes, First Bank, as Trust Agent.
"TITLING TRUST ASSETS" means: (i) any capital contributed by the Grantor;
(ii) the Contracts and all proceeds thereof; (iii) the Leased Vehicles and
all proceeds thereof, including each Certificate of Title and the Residual
Value of each Leased Vehicle, whether realized through the exercise by
Obligors of purchase options under the Contracts, the proceeds of sale of the
Leased Vehicles to Dealers or third parties or through payments received from
any other Person (directly or indirectly) under any related Insurance Policy
(to the extent not applied to repair or otherwise paid to a third Person or
Governmental Authority by the Servicer as required by law or pursuant to its
normal servicing practices) or as a subsidy or other funding of any
modification of the related Booked Residual Value; (iv) all of the Titling
Trust's rights (but not its obligations) with respect to any Contract or
Leased Vehicle, including the right to enforce and to proceeds arising from
all Dealer repurchase obligations arising under Dealer Agreements; (v) all of
TMCC's rights (but not its obligations) with respect to any Contract or
Leased Vehicle, including the right to enforce and to proceeds arising from
all Dealer repurchase obligations arising under Dealer Agreements; (vi) any
Insurance Policy and rights thereunder or proceeds therefrom relating to any
of the Contracts, Leased Vehicles or payments of the related Obligors with
respect thereto; (vii) any portion of any Security Deposit actually and
properly applied by the Servicer against amounts due under the related
Contract, to the extent not applied to making repairs to the related Leased
Vehicle or paid to a third party or Governmental Authority in accordance with
the Servicer's normal servicing practices; and (viii) all proceeds of any of
the foregoing.
"TITLING TRUSTEE" means TMTT, Inc., in its capacity as such under the
Titling Trust Agreement, and any successor thereto in such capacity appointed
pursuant to the Titling Trust Agreement.
"TITLING TRUSTEE ACCOUNTS" means any of the separate UTI Collection
Account, Lease Funding Account, SUBI Collection Account and/or SUBI Lease
Funding Account established by the Titling Trustee with respect to the UTI or
the related SUBI as described in the Titling Trust
-20-
Agreement and the related SUBI Supplement and SUBI Servicing Supplement.
Each such account maintained with respect to Rated Certificates shall be an
Eligible Account.
"TITLING TRUSTEE STOCK" means the issued and outstanding capital stock of
the Titling Trustee, together with any additional capital stock of the
Titling Trustee that may be issued from time to time.
"TITLING TRUST EXPENSES" means the aggregate of the Titling Trustee's
compensation and other Administrative Expenses with respect to the Titling
Trust, including those due under Section 6.13 of the Titling Trust Agreement.
"TLI" means Toyota Leasing, Inc. and its successors.
"TMCC" means Toyota Motor Credit Corporation, a California corporation,
its successors and assigns.
"TMS" means Toyota Motor Sales U.S.A., Inc., a California corporation,
its successors and assigns.
"TRANSACTION DOCUMENTS" means and includes the Titling Trust Agreement,
the UTI Supplement and, with respect to any Securitized Financing involving
the creation of a SUBI, the related SUBI Supplement, SUBI Servicing
Supplement, SUBI Certificate(s), any agreement transferring ownership or
other interests in the related SUBI and SUBI Certificate, the related
Securitization Trust Agreement, indenture, trust agreement or similar
instrument governing the securitization of such SUBI and any securities
offered or sold that are secured by interests in the related SUBI, and any
other documents ancillary thereto, in each case as the same may be amended,
supplemented or modified from time to time but only to the extent that any
such amendment, supplement or modification relates to such SUBI.
"TRANSFEROR" means TLI in its capacity as transferor under any
Securitization Trust Agreement and each other related Transaction Document.
"TRUST AGENCY AGREEMENT" means any of the one or more agency agreements
entered into by the Titling Trustee in furtherance of its execution of any
of the trusts or powers under the Titling Trust Agreement or performance of
any duties under the Titling Trust Agreement either directly or by or through
agents or attorneys or one or more custodians as set forth in the Titling
Trust Agreement. In addition, with respect to any Securitization Trustee,
Trust Agency Agreement means any of the one or more agency agreements entered
into by such Securitization Trustee in furtherance of its execution of any of
the trusts or powers under the related Securitization Trust Agreement or
performance of any duties under such Securitization Trust Agreement either
directly or by or through agents or attorneys or one or more custodians as
set forth in such Securitization Trust Agreement.
-21-
"TRUST AGENT" means any of the one or more Persons, including any
Affiliate of the Titling Trustee or any Securitization Trustee, engaged by
the Titling Trustee or such Securitization Trustee pursuant to a Trust Agency
Agreement.
"TRUST ASSET TRANSFER" means the allocation to a SUBI Sub-Trust of Trust
Assets not then allocated to any other SUBI Sub-Trust pursuant to Section
3.01(c) of the Titling Trust Agreement.
"TRUST STATES" initially means California, Florida, Michigan, Ohio and
Pennsylvania and after the date of this Agreement, means those States and
such other States as designated in writing from time to time to the Titling
Trustee by the Grantor in which Dealers are regularly originating Contracts
and assigning them to the Titling Trust as contemplated by the Titling Trust
Agreement.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
"UNITED STATES" means the United States of America, its territories and
possessions and areas subject to its jurisdiction.
"UNDIVIDED TRUST INTEREST" or "UTI" means the exclusive, undivided
beneficial interest in all Trust Assets (including Contracts and Leased
Vehicles), other than SUBI Assets, held by the UTI Beneficiary.
"UNDIVIDED TRUST INTEREST CERTIFICATE" or "UTI CERTIFICATE" means the one
or more trust certificates (together with any replacements thereof) issued by
the Titling Trust at the direction of the UTI Beneficiary substantially in
the form attached as an exhibit to the form of UTI Supplement.
"UTI ACCOUNT" means any of the separate UTI Collection Accounts and/or
Lease Funding Account established by the Titling Trustee with respect to the
UTI pursuant to Section 12.01 of the UTI Supplement.
"UTI ASSETS" means all Titling Trust Assets that have not been allocated
to a SUBI Sub-Trust.
"UTI BENEFICIARY" means TMCC, in its capacity as the initial beneficiary
of the Titling Trust on the date of the UTI Supplement, and its successors
and assigns (exclusive of any pledgee of a UTI Pledge).
"UTI CERTIFICATE" has the meaning described in Section 11.02 of the UTI
Supplement.
"UTI COLLECTION ACCOUNT" means the separate account established by the
Titling Trustee with respect to the UTI pursuant to Section 12.01 of the UTI
Supplement.
"UTI COLLECTION PERIOD" with respect to any Distribution Date, means the
preceding calendar month.
-22-
"UTI ELIGIBLE CONTRACT" means a Contract as to which the following
criteria are satisfied as of the date the Contract is originated and assigned
by the relevant Dealer to the Titling Trust:
(a) that was originated (i) by a Dealer, (ii) in the ordinary
course of its retail business, (iii) pursuant to a Dealer Agreement, and
(iv) in compliance with the customary underwriting standards employed by
the Grantor in originating leases for its own account;
(b) which Contract and the related Leased Vehicle are free of all
liens and other interests (including tax liens, mechanics liens and liens
that arise by operation of law, but excluding any Administrative Lien);
(c) that was originated in compliance with, and complies with, all
material applicable legal requirements, including, to the extent
applicable, the Federal Consumer Credit Protection Act (including the
Consumer Leasing Act), as amended, Regulation M of the Board of Governors
of the Federal Reserve System, as amended, all State leasing and consumer
protection laws and all State and federal usury, fair credit billing, fair
credit reporting, equal credit opportunity, and fair debt collection
practices laws;
(d) as to which all material consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained effected or given by the originator of
such Contract in connection with (i) the origination of such Contract,
(ii) the execution, delivery and performance by such originator of such
Contract and (iii) the acquisition by the Titling Trust of such Contract
and the related Leased Vehicle have been duly obtained, effected or given
and were in full force and effect as of such date of creation or
acquisition;
(e) that is the legal, valid and binding full-recourse payment
obligation of the Obligor thereunder, enforceable against such Obligor in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws, now or hereafter in effect, affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity);
(f) that, according to the records of the Grantor, is not subject
to any right of rescission, setoff, counterclaim or any other defense
(including defenses arising out of violations of usury laws) of the
Obligor thereunder to payment of the amounts due thereunder, and no such
right of rescission, setoff, counterclaim or other defense has been
asserted or threatened;
-23-
(g) as to which each of the originating Dealer, the Servicer and
the Titling Trust has satisfied all obligations required to be fulfilled
on its part;
(h) that is payable solely in United States dollars in the United
States;
(i) the Obligor of which is a Person located in one of the United
States and is not the Grantor, the Transferor or any of their respective
Affiliates;
(j) that requires the Obligor thereunder to maintain in full force
and effect during the term of such Contract a public liability and a
comprehensive and collision physical damage Insurance Policy, with
coverage in amounts not less than that required by applicable State law,
and that, includes a term requiring such Insurance Policy to name the
Titling Trust, the Titling Trustee or an agent of the Titling Trust on
behalf of the Titling Trust as a "loss payee" and an "additional insured";
(k) the related Leased Vehicle of which is titled in the name of the
Titling Trust or the Titling Trustee on behalf of the Titling Trust (or
properly completed applications for such title have been submitted to the
appropriate titling authority) and all transfer and similar taxes imposed
in connection therewith have been paid;
(l) that is fully assignable and that does not require the consent
of the Obligor thereunder as a condition to any transfer, sale or
assignment of the rights of the originator under such Contracts;
(m) that is a "true lease", as opposed to a lease intended as
security, under the laws of the State in which it was originated as such
laws relate to the perfection of security interests therein;
(n) that meets the Origination Criteria and, in the case of any
Contract included in a SUBI Portfolio, meets any Additional Origination
Criteria specified in the related SUBI Supplement;
(o) that was fully and properly executed by the parties thereto and,
upon conveyance to the Titling Trust pursuant to the Titling Trust
Agreement, shall have been validly assigned by the originating Dealer to
the Titling Trust in accordance with the terms of the Dealer Agreement
under which it was originated and immediately thereafter shall be owned by
the Titling Trust;
(p) that is substantially identical to one of the forms of Contract
attached to the UTI Supplement (or such other form as may be approved
from time to time by TMCC in the ordinary course of business);
-24-
(q) as to which the information set forth in the Schedule of
Contracts and Leased Vehicles with respect to such Contract and related
Leased Vehicle as of such Cutoff Date is true and correct in all material
respects;
(r) the Obligor under which Contract, according to the records of
the Servicer, has not filed or had filed against it any petition for
relief, rearrangement of its debts or other protection from its creditors
under any State or federal bankruptcy or insolvency laws, except as
otherwise permitted by the Origination Criteria;
(s) in respect of which the Grantor has taken no action such that
such Contract has been satisfied, subordinated, amended, waived,
restricted, rescinded, held to be invalid or unenforceable, altered or
modified in any respect, except (i) to the extent that such action
(A) does not render such Contract not in conformity with any other
criteria for an Eligible Contract, and (B) was made in accordance with
the Grantor's obligations under the Titling Trust Agreement, and (ii) if
such action was made pursuant to a document, instrument or writing, such
document, instrument or writing is included in the related Contract
Documents;
(t) as to which the Grantor, consistent with its standard
underwriting procedures, has reviewed and verified the material information
contained in the related Contract application;
(u) as to which, according to the records of the Grantor, no
default, breach, violation or event permitting acceleration under the
terms of the Contract exists, and no continuing condition that, with
notice or lapse of time, or both, would constitute a default, breach,
violation or event permitting acceleration under the terms of the
Contract has arisen, the Grantor has not waived any of the foregoing, and
the related Leased Vehicle has not been repossessed without reinstatement;
(v) that has not been originated in, and is not subject to the laws
of, any jurisdiction under which the sale, transfer, and assignment of
such Contract under its terms or pursuant to which transfers of the
Contracts or of the related Certificates of Title are unlawful, void or
voidable;
(w) as to which there is only one executed original, which will be
conveyed by the Dealer to the Titling Trustee or to the Grantor or
Servicer as the agent of the Titling Trustee, in each case on behalf of
the Titling Trust;
(x) that constitutes "chattel paper" as defined in the UCC;
(y) that was originated without any fraud or misrepresentation on
the part of the Grantor;
-25-
(z) as to which all taxes of any nature or description whatsoever
relating thereto that are due and owing as of the date of origination have
been paid or provided for in full except for (i) any state transfer taxes
payable in connection with the transfer of any Contracts to the Titling
Trustee and (ii) similar transfer taxes to which the Titling Trustee has
consented to; and
(aa) as to which the related Leased Vehicle was a new vehicle (which
may be a dealer demonstrator vehicle driven fewer than 20,000 miles) or
used vehicle (four model years old or less at the time of origination of
the related Contract, and which may be a certified used vehicle or
manufacturers' program vehicle), whether an automobile, light duty truck,
minivan or sports utility vehicle. As used in this clause (bb), certified
used vehicle means a vehicle purchased by a dealer, reconditioned and
certified to meet certain Toyota or Lexus required standards and sold or
leased with an extended warranty, and manufacturers' program vehicle means
a vehicle that has been sold to a rental car company, repurchased by the
manufacturer and subsequently purchased by a dealer to sell or lease as a
current model year or one year old used vehicles with 20,000 miles or less.
"UTI LEASED VEHICLE" means any Leased Vehicle that is an asset of the UTI
Sub-Trust.
"UTI PLEDGE" means a pledge of and grant of a security interest in the
UTI and UTI Certificate, or any interest therein, in connection with any
Securitized Financing, and the terms and conditions thereof set forth in the
related documentation.
"UTI PORTFOLIO" means the Contracts and Leased Vehicles comprising the
Undivided Trust Interest.
"UTI SUB-TRUST" means the separate Sub-Trust of the Titling Trust
containing all Trust Assets that have not been allocated to any SUBI
Sub-Trust.
"UTI SUPPLEMENT" means any of the one or more supplements or amendments
to the Titling Trust Agreement, substantially in the form attached thereto as
an exhibit, the execution and delivery of which by the UTI Beneficiary and
the Titling Trustee in accordance with Section 3.01(b) of the Titling Trust
Agreement will effect the creation of a UTI.
"UTI UNIT CERTIFICATE" has the meaning described in Section 11.02 of the
UTI Supplement.
"UTI UNIT" has the meaning described in Section 11.01 of the UTI
Supplement.
-26-
