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1998-B SUBI SERVICING SUPPLEMENT
to
AMENDED AND RESTATED TRUST AND SERVICING AGREEMENT
Dated as of October 1, 1996
Among
TMTT, INC.,
as Titling Trustee,
TOYOTA MOTOR CREDIT CORPORATION,
as Servicer,
and
U.S. BANK NATIONAL ASSOCIATION,
as Trust Agent
Dated as of [_________], 1998
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SERVICER
2.1 Representations and Warranties of Servicer. . . . . . . . . . . . . . . . . . 3
ARTICLE III
CREATION OF 1998-B SUBI
3.1 Initial Creation of 1998-B SUBI Portfolio and 1998-B SUBI Sub-Trust . . . . . 4
3.2 Subsequent Additions to 1998-B SUBI Portfolio and 1998-B SUBI Sub-Trust . . . 5
3.3 Servicer Payment in Respect of Certain Contracts and Leased Vehicles. . . . . 6
3.4 Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE IV
SPECIFIC REQUIREMENTS FOR ADMINISTRATION AND SERVICING OF CONTRACTS IN 1998-B
SUBI PORTFOLIO
4.1 Servicer Bound by Titling Trust Agreement . . . . . . . . . . . . . . . . . . 7
4.2 Collection of Monthly Payments and Remittances; Application of Proceeds;
Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.3 Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.4 Collection and Application of Security Deposits . . . . . . . . . . . . . . . 15
4.5 Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.6 Payment of Certain Fees and Expenses; No Offset . . . . . . . . . . . . . . . 16
4.7 Servicing Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.8 Repossession and Sale of Leased Vehicles. . . . . . . . . . . . . . . . . . . 17
4.9 Servicer to Act on Behalf of Titling Trust. . . . . . . . . . . . . . . . . . 19
4.10 Indemnificationby Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.11 Third Party Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.12 Insurance Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.13 Servicer Not to Resign; Assignment. . . . . . . . . . . . . . . . . . . . . . 22
4.14 Obligor Insurance Coverage in Respect of Leased Vehicles. . . . . . . . . . . 23
4.15 Corporate Existence; Status; Merger . . . . . . . . . . . . . . . . . . . . . 23
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ARTICLE V
STATEMENTS AND REPORTS
5.1 Reporting by the Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.2 Annual Accountants' Reports . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.3 Other Certificates And Notices From Servicer. . . . . . . . . . . . . . . . . 26
5.4 Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VI
DEFAULT
6.1 Event of Servicing Termination; Termination of Servicer as to 1998-B
SUBI Portfolio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.2 No Effect on Other Parties. . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE VII
MISCELLANEOUS
7.1 Termination of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.2 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.3 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.5 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.6 No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.7 Inspection and Audit Rights . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.8 Article and Section Headings. . . . . . . . . . . . . . . . . . . . . . . . . 31
7.9 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.10 Rights Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.11 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.12 Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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EXHIBITS
EXHIBIT A Schedule of 1998-B Contracts and 1998-B Leased Vehicles
as of the Initial Cutoff Date . . . . . . . . . . . . . . . . . . .A-1
EXHIBIT B Form of Servicer's Certificate. . . . . . . . . . . . . . . . . . .B-1
EXHIBIT C Form of Power of Attorney . . . . . . . . . . . . . . . . . . . . .C-1
SCHEDULE I Addresses of Branch Offices
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1998-B SUBI SERVICING SUPPLEMENT TO THE AMENDED AND RESTATED TRUST AND
SERVICING AGREEMENT
1998-B SUBI SERVICING SUPPLEMENT TO THE AMENDED AND RESTATED TRUST AND
SERVICING AGREEMENT (the "1998-B SUBI Servicing Supplement"), dated as of
[_________], 1998, among TMTT, INC., a Delaware corporation, as Titling Trustee
of TOYOTA LEASE TRUST, a Delaware business trust (the "Titling Trust") on behalf
of the Titling Trust, TOYOTA MOTOR CREDIT CORPORATION, a California corporation,
as Servicer, and U.S. BANK NATIONAL ASSOCIATION (formerly known as First Bank
National Association), as Trust Agent.
RECITALS
A. Toyota Motor Credit Corporation ("TMCC"), the Titling Trustee
and, for certain limited purposes set forth therein, First Bank National
Association, as Trust Agent, have entered into that certain Amended and Restated
Trust and Servicing Agreement, dated as of October 1, 1996, amending and
restating that certain Trust and Servicing Agreement, dated as of October 1,
1996, among the same parties (as so amended and restated, and as it may be
further amended, supplemented or modified, the "Titling Trust Agreement"),
pursuant to which TMCC and the Titling Trustee formed the Titling Trust for the
purpose of taking assignments and conveyances of, holding in trust and dealing
in, various Titling Trust Assets in accordance with the Titling Trust Agreement.
B. Concurrently herewith, and as contemplated by the Titling Trust
Agreement, TMCC, the Titling Trustee and the Trust Agent are entering into that
certain 1998-B SUBI Supplement to the Titling Trust Agreement, dated as of
[_________], 1998, pursuant to which the Titling Trustee, on behalf of the
Titling Trust and at the direction of TMCC, as UTI Beneficiary, will create and
issue to or to the order of TMCC (i) a 1998-B SUBI Certificate evidencing
beneficial interests in the assets of the 1998-B SUBI other than the proceeds of
the Residual Value Insurance Policies, and (ii) a 1998-B SUBI Insurance
Certificate evidencing beneficial interests in the assets of the 1998-B SUBI
that are proceeds of the Residual Value Insurance Policies insofar as such
policies relate to the 1998-B Leased Vehicles and the 1998-B Contracts. It is
the intention of the parties hereto that the 1998-B SUBI Certificate and the
1998-B SUBI Insurance Certificate collectively represent a 100% beneficial
interest in the 1998-B SUBI, whose beneficiaries generally will be entitled to
the net cash flow arising from, but only from, the related 1998-B SUBI Assets,
all as set forth in the Titling Trust Agreement and the 1998-B SUBI Supplement.
C. Also concurrently herewith, TMCC and the Transferor are entering
into that certain 1998-B SUBI Certificate Purchase and Sale Agreement, dated as
of [_________], 1998, pursuant to which TMCC is selling to the Transferor,
without recourse, all of TMCC's right, title and interest in and to the 1998-B
SUBI, the 1998-B SUBI Certificate and the 1998-B SUBI Insurance Certificate, all
moneys due thereon and paid thereon or in respect thereof and the
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right to realize on any property that may be deemed to secure the 1998-B SUBI,
and all proceeds thereof.
D. Also concurrently herewith, and as contemplated by the Titling
Trust Agreement, the Transferor and [_____________________], as 1998-B
Securitization Trustee, are entering into that certain Securitization Trust
Agreement, dated as of [_________], 1998 (the "1998-B Securitization Trust
Agreement"), pursuant to which the 1998-B SUBI Certificate will be transferred
to the 1998-B Securitization Trustee, in that capacity on behalf of the
Securitization Trust, in connection with a Securitized Financing thereof by the
Transferor. The 1998-B SUBI Insurance Certificate will not be transferred to
the 1998-B Securitization Trustee and the Transferor will retain the 1998-B SUBI
Insurance Certificate.
E. The parties desire to supplement the servicing provisions of the
Titling Trust Agreement, insofar as they apply to the 1998-B SUBI, the 1998-B
SUBI Sub-Trust, the 1998-B SUBI Certificate and the 1998-B SUBI Insurance
Certificate, to provide for further specific servicing obligations that will
benefit the holders of the 1998-B SUBI Certificate and the 1998-B SUBI Insurance
Certificate and the parties to and other beneficiaries of the Transaction
Documents relating to the Securitized Financing contemplated by the 1998-B
Securitization Trust Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each party hereto,
the parties hereto agree to the following supplemental obligations with regard
to the 1998-B SUBI Sub-Trust:
ARTICLE I
DEFINITIONS
1.01 DEFINITIONS.
For all purposes of this 1998-B SUBI Servicing Supplement, except
as otherwise expressly provided or unless the context otherwise requires,
capitalized terms used and not otherwise defined herein shall have the
meanings ascribed thereto in the Annex of Definitions attached to the Titling
Trust Agreement or in the Annex of Supplemental Definitions attached to the
1998-B SUBI Supplement for all purposes of this 1998-B SUBI Servicing
Supplement. In the event of any conflict between a definition set forth in
the Annex of Definitions and the Annex of Supplemental Definitions, the
definition set forth in the Annex of Supplemental Definitions shall prevail.
In the event of any conflict between a definition set forth both herein and
in the Annex of Definitions or Annex of Supplemental Definitions, the
definition set forth herein shall prevail. All terms used in this 1998-B
SUBI Servicing Supplement include, as appropriate, all genders and the plural
as well as the singular. All references such as "herein", "hereof" and the
like shall refer to this 1998-B SUBI Servicing Supplement as a whole and not
to any particular article or section within this 1998-B SUBI Servicing
Supplement. All references such as "includes" and variations thereon shall
mean "includes without limitation" and references to "or"
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shall mean "and/or". Any reference herein to the "Titling Trustee, acting on
behalf of the Titling Trust", or words of similar import, shall be deemed to
mean the Titling Trustee, acting on behalf of Toyota Lease Trust and all
beneficiaries thereof. Any reference herein to the "1998-B Securitization
Trustee, acting on behalf of the 1998-B Securitization Trust", or words of
similar import, shall be deemed to mean the 1998-B Securitization Trustee,
acting on behalf of the Toyota Auto Lease Trust 1998-B and all beneficiaries
thereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SERVICER
2.01 REPRESENTATIONS AND WARRANTIES OF SERVICER.
The Servicer represents and warrants to the Titling Trustee, the
1998-B Securitization Trustee and each SUBI Beneficiary as follows:
(a) ORGANIZATION AND GOOD STANDING. The Servicer has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of California, with corporate power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and had at all relevant times, and now
has, corporate power, authority and legal right to acquire, own, sell and
service the Contracts and related Leased Vehicles and to hold the related
Contract Documents and Certificates of Title as custodian on behalf of the
Titling Trust.
(b) DUE QUALIFICATION. The Servicer is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business (including the servicing of the
Contracts and related Leased Vehicles as required by this Agreement) requires
such qualifications.
(c) POWER AND AUTHORITY. The Servicer has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms; and
the execution, delivery and performance of this Agreement has been duly
authorized by the Servicer by all necessary corporate action.
(d) BINDING OBLIGATIONS. This 1998-B SUBI Servicing Supplement
constitutes a legal, valid and binding obligation of the Servicer enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally or by general principles of equity.
(e) NO CONFLICT. The consummation of the transactions contemplated
by this 1998-B SUBI Servicing Supplement and the fulfillment of the terms of
this 1998-B SUBI Servicing Supplement does not conflict with, result in any
breach of any of the terms and provisions of, nor constitute (with or without
notice or lapse of time) a default under, the articles of incorporation or
bylaws of the Servicer, or conflict with or breach any of the material terms or
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provisions of, or constitute (with or without notice or lapse of time) a default
under, any indenture, agreement or other instrument to which the Servicer is a
party or by which it is bound; nor result in the creation or imposition of any
lien upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than this 1998-B SUBI Servicing
Supplement); nor violate any law or, to the best of the Servicer's knowledge,
any order, rule or regulation applicable to the Servicer of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its properties; which
breach, default, conflict, lien or violation would have a material adverse
effect on the earnings, business affairs or business prospects of the Servicer.
(f) NO PROCEEDINGS. To the Servicer's actual knowledge, there is no
action, suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, or to the Servicer's knowledge,
threatened, against or affecting the Servicer (i) asserting the invalidity of
this 1998-B SUBI Servicing Supplement or (ii) seeking any determination or
ruling that might materially and adversely affect the performance by the
Servicer of its obligations under, or the validity or enforceability of, this
1998-B SUBI Servicing Supplement.
ARTICLE III
CREATION OF 1998-B SUBI
3.01 INITIAL CREATION OF 1998-B SUBI PORTFOLIO AND 1998-B SUBI
SUB-TRUST.
(a) Pursuant to Section 3.01 of the Titling Trust Agreement and
Section 16.01 of the 1998-B SUBI Supplement, the Titling Trustee has been
directed to cause to be identified and allocated on the books and records of the
Titling Trust the separate 1998-B SUBI Sub-Trust consisting of the 1998-B SUBI
Portfolio and certain other associated Titling Trust Assets specified therein.
The Titling Trustee, on behalf of the Titling Trust, hereby directs that the
Servicer so identify and allocate such a separate SUBI Portfolio of Contracts
and related Leased Vehicles from among all Titling Trust Assets owned by the
Titling Trustee on behalf of the Titling Trust and currently accounted for as
part of the UTI Sub-Trust.
(b) The Servicer hereby identifies and allocates such a portfolio of
Contracts and related Leased Vehicles more particularly described on Exhibit A
hereto which is in substantially the form of a Schedule of Contracts and Leased
Vehicles, in order to create the initial 1998-B SUBI Portfolio.
(c) The Servicer hereby represents and warrants to the Titling
Trustee, the 1998-B Securitization Trustee and each SUBI Beneficiary that each
of the Contracts described on Exhibit A hereto is an Eligible Contract.
(d) It is the intent of the parties hereto that the proceeds of the
Residual Value Insurance Policies applicable to the 1998-B Leased Vehicles and
the 1998-B Contracts will be payable by the Servicer (or the insurer under the
Residual Value Insurance Policies) directly to the holder of the 1998-B SUBI
Insurance Certificate and will not, under any circumstances, be
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subject to the lien of the 1998-B Securitization Trust Agreement or be required
to be deposited in any SUBI Account.
3.02 SUBSEQUENT ADDITIONS TO 1998-B SUBI PORTFOLIO AND 1998-B SUBI
SUB-TRUST.
(a) The Titling Trustee is hereby directed to cause to be identified
and allocated on the books and records of the Titling Trust to the 1998-B SUBI
Sub-Trust on or before each Transfer Date certain additional Eligible Contracts,
related Leased Vehicles and other associated Titling Trust Assets not then
allocated, or reserved for allocation, to any other SUBI Portfolio or Sub-Trust.
Such Subsequent Contracts and Subsequent Leased Vehicles to be allocated to the
1998-B SUBI Portfolio and 1998-B SUBI Sub-Trust shall have an aggregate
Discounted Principal Balance as of the related Transfer Date of an amount not
greater than all Principal Collections received after the Cutoff Date (including
the amounts treated as Principal Collections pursuant to Section 3.01(c) and
3.01(k) of the 1998-B Securitization Trust Agreement) that have not been so
applied pursuant to this Section 3.02(a). The Titling Trustee, on behalf of the
Titling Trust, hereby directs the Servicer to select at least one Transfer Date
each month during the Revolving Period and to identify such Subsequent
Contracts, related Subsequent Leased Vehicles and other associated Titling Trust
Assets (as described in the 1998-B SUBI Supplement and meeting the other
requirements set forth therein) on or before each Transfer Date, and cause such
Subsequent Contracts and Subsequent Leased Vehicles to be specifically
identified on a supplemental Schedule of Contracts and Leased Vehicles (which,
when considered with all prior Schedules of Contracts and Leased Vehicles, shall
be considered to be the definitive Schedule of Contracts and Leased Vehicles) to
be delivered pursuant to Section 5.01 hereof. On each such Transfer Date, such
Subsequent Contracts, Subsequent Leased Vehicles and other associated Titling
Trust Assets shall be added to the 1998-B SUBI Portfolio and 1998-B SUBI
Sub-Trust, as the case may be, as additional 1998-B SUBI Assets.
(b) The Servicer shall give one Business Day's prior notice to the
Titling Trustee and the 1998-B Securitization Trustee of each Transfer Date. On
each Transfer Date, the Servicer shall be deemed to have represented and
warranted to the 1998-B Securitization Trustee on behalf of the 1998-B
Securitization Trust that (i) all Subsequent Contracts added to the 1998-B SUBI
Portfolio on that date were Eligible Contracts as of the relevant Transfer Date,
(ii) no adverse selection procedures were employed in selecting such Subsequent
Contracts, (iii) it is not aware of any bias in the selection of such Subsequent
Contracts that would cause delinquencies or losses with respect thereto to
differ from those of the Initial Contracts, other than the fact that such
Subsequent Contracts were selected from all Eligible Contracts not then
allocated to any SUBI Portfolio or reserved for allocation to another SUBI
Portfolio on a "first-in, first-out" basis, based on the date of origination,
and (iv) unless the 1998-B Securitization Trustee receives a letter from each
Rating Agency to the effect that the use of different criteria would not result
in the qualification, reduction or withdrawal of its then current rating on any
Investor Certificates rated by either Rating Agency, after giving effect to such
reallocation (A) each such 1998-B Contract will be allocated to the 1998-B
SUBI Portfolio based upon its Discounted Principal Balance as of the relevant
Transfer Date, (B) the weighted average remaining term of the 1998-B
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Contracts (including the Subsequent Contracts) will be not greater than 36
months, and (C) the weighted average Booked Residual Value of all 1998-B
Contracts (including the Subsequent Contracts), as a percentage of the
aggregate Outstanding Principal Balance of the 1998-B Contracts (including
the Subsequent Contracts), will be not greater than 65%, based on the
characteristics of all 1998-B Contracts (including the Subsequent Contracts)
as of its date of origination.
(c) From and after the date on which the 1998-B SUBI Lease Funding
Account is required to be maintained as specified in Section 17.02 of the
1998-B SUBI Supplement, on each Transfer Date the Servicer shall withdraw
from the 1998-B SUBI Collection Account (but excluding any amounts in fact
deposited therein that the Servicer has notified the 1998-B Securitization
Trustee are proceeds of a Residual Value Insurance Policy) an amount equal to
the aggregate Discounted Principal Balance as of the relevant Transfer Date
of the Subsequent Contracts then being added to the 1998-B SUBI Portfolio and
1998-B SUBI Sub-Trust pursuant to Section 16.01 of the 1998-B SUBI Supplement
and the Servicer shall direct the Titling Trustee to deposit such amount into
the 1998-B Lease Funding Account or for payment to the UTI Beneficiary, as
appropriate, directly in connection with the purchase of Subsequent Contracts
and Subsequent Leased Vehicles.
3.03 SERVICER PAYMENT IN RESPECT OF CERTAIN CONTRACTS AND LEASED
VEHICLES.
(a) The representations and warranties of the Servicer set forth in
Sections 3.01(c) and 3.02(b), with respect to each 1998-B Contract shall survive
delivery of the related Contract to the 1998-B SUBI Portfolio and the 1998-B
SUBI Sub-Trust and shall continue (speaking as of the dates made) so long as
each such 1998-B Contract remains outstanding, or until the termination of the
1998-B Securitization Trust Agreement pursuant to Section 7.01 thereof,
whichever occurs earlier. Upon discovery by the Titling Trustee, the 1998-B
Securitization Trustee or the Servicer that any such representation or warranty
was incorrect as of the time specified with respect to such representation and
warranty and such incorrectness materially and adversely affects such 1998-B
Contract, the party discovering such incorrectness shall give prompt written
notice to the others. Within 60 days of its discovery of such incorrectness or
notice to such effect to the Servicer, the Servicer shall cure in all material
respects the circumstances or condition in respect of which such representation
or warranty was incorrect. If the Servicer is unable or unwilling to do so
timely, it shall, as the sole remedy for such breach, promptly (i) deposit the
Reallocation Payment in respect of such 1998-B Contract into the 1998-B SUBI
Collection Account, (ii) reallocate such 1998-B Contract and the related Leased
Vehicle and other related Titling Trust Assets from the 1998-B SUBI Portfolio to
the UTI Portfolio, and (iii) indemnify, defend and hold harmless the holders of
the 1998-B SUBI Certificate (including without limitation the 1998-B
Securitization Trustee on behalf of the 1998-B Securitization Trust and the
Certificateholders), the holder of the 1998-B SUBI Insurance Certificate and any
subsequent servicer (if other than the current Servicer) from and against, any
and all loss or liability with respect to or resulting from any such 1998-B
Contract or related Leased Vehicle. Notwithstanding the foregoing, if any
reallocation described in clause (ii) would cause the Transferor Interest to be
equal to or less than zero, the Servicer also shall deposit promptly into
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the 1998-B SUBI Collection Account a Reallocation Deposit Amount in an amount
such that the Transferor Interest will not be reduced to less than zero, and
the reallocation will not be made until such deposit has been made.
(b) In the event that the Servicer receives funds from a Dealer that
is required, pursuant to a Dealer Agreement, to repurchase a Contract or Leased
Vehicle included in the 1998-B SUBI Portfolio, the Servicer shall, subject to
Section 17.01 of the 1998-B SUBI Supplement, within two Business Days of receipt
thereof, deposit such funds into the 1998-B SUBI Collection Account, which
deposit shall satisfy the UTI Beneficiary's obligations with respect to
enforcement of such Dealer repurchase obligation, and return to the repurchasing
Dealer the Certificate of Title and Contract with respect to such Leased
Vehicle.
(c) The obligations of the Servicer pursuant to this Section 3.03
shall survive any termination of the Servicer with respect to the 1998-B SUBI
Portfolio and 1998-B SUBI Sub-Trust under this 1998-B SUBI Servicing Supplement
or the Titling Trust Agreement.
3.04 FILINGS.
The Servicer will undertake all other and future actions and
activities as may be reasonably necessary to perfect (or evidence) and confirm
the foregoing allocations of Trust Assets to the 1998-B SUBI Sub-Trust and the
1998-B SUBI Portfolio, as the case may be, including filing or causing to be
filed UCC financing statements and executing and delivering all related filings,
documents or writings as may be reasonably necessary hereunder or under any
other Securitization Trust Documents, whether on its own behalf or pursuant to
the power of attorney granted by the Grantor in the 1998-B SUBI Supplement;
provided, however, that in no event shall the Servicer be required to take any
action to perfect a security interest that may be held by the 1998-B
Securitization Trustee in any 1998-B Leased Vehicle.
ARTICLE IV
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING OF CONTRACTS
IN 1998-B SUBI PORTFOLIO
4.01 SERVICER BOUND BY TITLING TRUST AGREEMENT.
(a) Except as otherwise specifically provided herein: (i) the
Servicer shall continue to be bound by all provisions of the Titling Trust
Agreement with respect to the Contracts, Leased Vehicles and other associated
Titling Trust Assets in the 1998-B SUBI Sub-Trust, including without limitation
the provisions thereof relating to the administration and servicing of 1998-B
Contracts; and (ii) the provisions set forth herein shall operate either as
additions to or modifications of the extant obligations of the Servicer under
the Titling Trust Agreement, as the context may require. In the event the
provisions of this 1998-B SUBI Servicing Supplement are more exacting or
specific than those contained in the Titling Trust Agreement or in the event of
any conflict between the provisions of this 1998-B SUBI Servicing
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Supplement with respect to the 1998-B SUBI, and those of the Titling Trust
Agreement, the provisions of this 1998-B SUBI Servicing Supplement shall govern.
(b) For purposes of determining the Servicer's obligations with
respect to the servicing of the 1998-B SUBI Sub-Trust under this 1998-B SUBI
Servicing Supplement (including without limitation pursuant to Article Four
hereof), general references in the Titling Trust Agreement to: (i) a SUBI
Account shall be deemed to refer more specifically to the 1998-B SUBI Account;
(ii) a SUBI Asset shall be deemed to refer more specifically to a 1998-B SUBI
Asset; (iii) an appropriate or applicable SUBI Collection Account shall be
deemed to refer more specifically to the 1998-B SUBI Collection Account; (iv) an
appropriate or applicable SUBI Lease Funding Account shall be deemed to refer
more specifically to the 1998-B SUBI Lease Funding Account; (v) a SUBI Portfolio
shall be deemed to refer more specifically to the 1998-B SUBI Portfolio; (vi) a
SUBI Sub-Trust shall be deemed to refer more specifically to the 1998-B SUBI
Sub-Trust; (vii) a SUBI Servicing Supplement shall be deemed to refer more
specifically to this 1998-B SUBI Servicing Supplement; and (viii) a SUBI
Supplement shall be deemed to refer more specifically to the 1998-B SUBI
Supplement.
(c) Coincident with the execution and delivery of this 1998-B SUBI
Servicing Supplement, the Servicer shall furnish the 1998-B Securitization
Trustee, on behalf of the 1998-B Securitization Trust, with an Officer's
Certificate listing the officers or other authorized signatories of the Servicer
currently involved in, or responsible for, the administration and servicing of
the Contracts in the 1998-B SUBI Portfolio, which list shall from time to time
be updated by the Servicer.
4.02 COLLECTION OF MONTHLY PAYMENTS AND REMITTANCES; APPLICATION OF
PROCEEDS; ACCOUNTS.
(a) The Servicer shall use commercially reasonable efforts,
consistent with its then current standards, policies and procedures or new
programs, whether or not implemented on a test basis, commenced in the ordinary
course of business, to (i) collect all payments required under the terms and
provisions of each Contract included in the 1998-B SUBI Portfolio; (ii) cause
each Obligor to make all payments in respect of the Contract included in the
1998-B SUBI Portfolio to which such Obligor is a party or otherwise obligated;
and (iii) to deposit all Collections (excluding proceeds of the Residual Value
Insurance Policies which are to be transferred directly to the holder of the
1998-B SUBI Insurance Certificate and which amounts shall not be deemed to be
Collections by the Servicer) and any Maturity Advance received from the
Transferor into the 1998-B SUBI Collection Account on or before the Deposit Date
relating to each Collection Period except as otherwise specified herein or in
Section 17.01 or Section 17.02 of the 1998-B SUBI Supplement (in connection with
any failure to satisfy the Monthly Remittance Conditions).
Notwithstanding the foregoing and notwithstanding the provisions
of Section 3.01 of the 1998-B Securitization Trust Agreement, in accordance with
the provisions of Section 7.01(c) of the Titling Trust Agreement, for so long as
TMCC is the Servicer and each
8
Monthly Remittance Condition is satisfied, the Servicer will be entitled to
make deposits of Collections into the 1998-B SUBI Collection Account net of
amounts reimbursable or payable to the Servicer as compensation, in respect
of Advances or otherwise (including in respect of amounts advanced by the
Servicer in respect of amounts otherwise payable to the 1998-B Securitization
Trustee or to the Titling Trustee or Trust Agent), and net of amounts payable
or reimbursable (and actually so paid or reimbursed directly by the Servicer)
in respect of Titling Trust. To the extent the Servicer makes deposits net
of any such amounts, the Servicer will cause each relevant Servicer's
Certificate to correctly and accurately account for such amounts in providing
all information with respect to allocations, applications and payments to be
made pursuant to Section 3.01 of the 1998-B Securitization Trust Agreement on
the same basis as though such amounts were in fact deposited into the 1998-B
SUBI Collection Account. Moreover, as set forth in Section 3.01 of the
1998-B Securitization Trust Agreement, the Servicer will, in each relevant
Servicer's Certificate, instruct the 1998-B Securitization Trustee not to
make any distribution to the Servicer, Transferor or Titling Trustee to the
extent that the Servicer has made any deposit net of a corresponding amount,
and the 1998-B Securitization Trustee will have no obligation with respect to
or liability for following any such instruction by the Servicer.
(b) Consistent with the foregoing, the Servicer may in its discretion
(i) waive any late payment charge or similar charge, in whole or in part, in
connection with delinquent payments on or deferrals or extensions of a Contract
included in the 1998-B SUBI Portfolio and (ii) defer one or more payments under
a Contract or extend the Maturity Date of any Contract. Notwithstanding the
foregoing, the Servicer may not grant more than four deferrals of any 1998-B
Contract, and may not extend the Maturity Date of any 1998-B Contract by more
than twelve months in the aggregate (or by sixteen months with the inclusion of
any deferrals) or such that its Maturity Date will occur later than the last day
of the Collection Period related to the Class B Stated Maturity Date; provided,
however, that if the Servicer defers payments on any 1998-B Contract more than
four times or extends the Maturity Date thereof by more than twelve months in
the aggregate (or by more than sixteen months with the inclusion of any
deferrals) or so that the extended Maturity Date will occur later than the last
day of the Collection Period relating to the Class B Stated Maturity Date, then,
as the sole remedy therefor, the Servicer shall, on the Deposit Date related to
the Collection Period in which such extension was granted or on the Deposit Date
relating to the Collection Period in which the Servicer discovers or is notified
that an improper extension was granted, (y) deposit into the 1998-B SUBI
Collection Account an amount equal to the then Discounted Principal Balance of
such Contract plus an amount equal to the interest, or lease charge, portion of
any Monthly Payments with respect thereto at the related Lease Rate that were
accrued but unpaid as of the end of that Collection Period, and (z) reallocate
such 1998-B Contract and the related 1998-B Leased Vehicle from the 1998-B SUBI
Portfolio and 1998-B SUBI Sub-Trust to the UTI Portfolio and UTI Sub-Trust. The
obligations of the Servicer pursuant to this Section 4.02(b) shall survive any
termination of the Servicer's obligations with respect to the 1998-B SUBI
Portfolio under this 1998-B SUBI Servicing Supplement.
9
(c) As to any Monthly Payments, Liquidation Proceeds, Insurance
Proceeds (excluding proceeds of the Residual Value Insurance Policies which are
to be transferred directly to the holder of the 1998-B SUBI Insurance
Certificate by the Servicer), Prepayments, Payments Ahead or any other payments
by or on behalf of any Obligor or otherwise (excluding any late fees or deferral
fees) with respect to any 1998-B Contract or related Leased Vehicle, including
(if applicable) any proceeds of recourse payments by the originating Dealer,
whether received by the Servicer through any lock box or similar mechanism used
for the collection of regular periodic payments on receivables owned or serviced
by it or received directly by the Servicer at any of its servicing offices, but
subject to Section 4.08 of this 1998-B SUBI Servicing Supplement with regard to
Liquidation Proceeds and Insurance Proceeds:
(i) Upon receipt of any such funds (including funds initially
deposited in any Servicer lock-box account), the Servicer shall deposit
such funds into its operating account and shall ascertain promptly the
following information: (A) the amount of each receipt, (B) the Contract
Number to which such receipt relates, (C) the nature of the payment (i.e.,
whether a Monthly Payment, other Liquidation Proceeds, a Prepayment,
payment of the Residual Value of the related Leased Vehicle or any other
payment by or on behalf of any Obligor), (D) the date such payment is
credited; and (E) that such Contract has been allocated to the 1998-B SUBI
Portfolio and 1998-B SUBI Sub-Trust (collectively, the "Payment
Information").
(ii) As to any such funds received by the Servicer after the
date, if any, on which it ceases to satisfy the Monthly Remittance
Conditions, the Servicer shall segregate all such funds from other SUBI
Sub-Trusts, and deposit all such funds (net of reimbursement of any
Liquidation Expenses incurred by the Servicer with respect to any 1998-B
Leased Vehicle whose Liquidation Proceeds are included among such funds and
excluding proceeds of the Residual Value Insurance Policies which are to be
transferred directly to the holder of the 1998-B SUBI Insurance Certificate
by the Servicer) into the 1998-B SUBI Collection Account maintained by the
Titling Trustee. Such amounts will thereafter be applied as set forth in
Section 17.01(d) of the 1998-B SUBI Supplement.
(iii) In the event that any proceeds of the Residual Value
Insurance Policies applicable to the 1998-B Leased Vehicles and the 1998-B
Contracts are deposited in any SUBI Account or another account maintained
by the Titling Trustee or the 1998-B Securitization Trustee, such amounts
shall be distributed to the holder of the 1988-A SUBI Insurance Certificate
by the Titling Trustee on the 1998-B Securitization Trustee, as applicable,
on the succeeding Monthly Allocation Date at the written direction of the
Servicer.
(iv) Upon the determination by the Servicer that any proceeds
received by it with respect to any 1998-B Contract constitute one or more
Payments Ahead, the Servicer shall, unless otherwise instructed by the
Titling Trustee, (A) maintain appropriate records of such Payment Ahead so
as to be able to timely apply such Payment Ahead as a Monthly Payment with
respect to the applicable Contract and (B) deposit such
10
Payment Ahead into the 1998-B SUBI Collection Account on the Deposit Date
relating to the Collection Period during which such Payment Ahead is to be
applied, or, after the date, if any, on which it ceases to satisfy the
Monthly Remittance Conditions, with two Business Days of such date.
(d) The Servicer shall treat all Charged-Off Vehicle Proceeds and
Matured Leased Vehicle Proceeds in the manner provided for other Liquidation
Proceeds in the Titling Trust Agreement and 1998-B SUBI Supplement; provided,
however, as set forth in Section 4.07 of this 1998-B SUBI Servicing
Supplement, that the Servicer may be reimbursed for related Charged-Off
Vehicle Expenses, Matured Leased Vehicle Expenses, other Liquidation Expenses
and Insurance Costs as provided in Section 4.02(h).
(e) The Servicer shall deposit into the 1998-B SUBI Collection
Account on or before each Deposit Date each Security Deposit that was applied
in respect of a Contract during the related Collection Period and not paid to
a third party or to the Servicer as Liquidation Expenses or Matured Leased
Vehicle Expenses, or reimbursements in respect thereof.
(f) The Servicer, on behalf of the Titling Trustee, shall
establish and maintain the 1998-B SUBI Collection Account as set forth in
Section 17.01(a) of the 1998-B SUBI Supplement.
(g) On each Determination Date the Servicer shall make the
calculations necessary to allow the 1998-B Securitization Trustee to make
allocations, applications and payments to holders of, or to the 1998-B SUBI
Accounts on behalf of the holders of, the 1998-B SUBI Certificates on the
related Monthly Allocation Date in accordance with Section 3.01 of the 1998-B
Securitization Trust Agreement. In connection therewith, the Servicer shall
determine the amount of Titling Trust Expenses incurred or suffered during
the preceding Collection Period and shall allocate such Titling Trust
Expenses among the various Sub-Trusts, including the 1998-B SUBI Sub-Trust,
in good faith and so as not to disproportionately affect any Sub-Trust,
generally as provided for in Section 3.04 or 7.04, as appropriate, of the
Titling Trust Agreement.
(h) The Servicer will be entitled to reimbursement of Matured
Leased Vehicle Expenses, Charged-Off Vehicle Expenses and other Liquidation
Expenses. The Servicer is hereby authorized to net such expenses from
proceeds or Collections in respect of the related 1998-B Contracts or 1998-B
Leased Vehicles (including other Liquidation Proceeds), or to withdraw such
amounts from amounts on deposit in the 1998-B SUBI Collection Account. The
Servicer also will be entitled to reimbursement of certain payments it makes
on behalf of Obligors (including payments of taxes, vehicle registration
charges, clearance of parking tickets and similar items and expenses and
charges incurred by it in the ordinary course of servicing the 1998-B
Contracts) from Collections with respect to the 1998-B Contracts (whether or
not as separate payments thereof by the related Obligors) or from amounts
realized upon the final disposition of 1998-B Leased Vehicles. To the extent
such amounts are not reimbursed prior to or at the final disposition of the
related Leased Vehicle but remain unpaid by the related Obligor, such
unreimbursed amounts (together with any unpaid Monthly Payments under the
related
11
Contract) will be treated as Matured Leased Vehicle Expenses or Liquidation
Expenses, as the case may be, and the Servicer is hereby authorized to offset
such reimbursable payments, expenses and charges against Matured Leased
Vehicle Proceeds or Liquidation Proceeds, as the case may be.
To the extent that during any Collection Period (i) Collections,
Matured Leased Vehicle Proceeds, Liquidation Proceeds or separate payments
from the Obligors in respect of such payments, charges and expenses are
deposited into the 1998-B SUBI Collection Account rather than so offset by
the Servicer, (ii) any Monthly Payments arising from a Contract allocated to
the 1998-B SUBI Sub-Trust are received by the Titling Trustee or deposited in
the 1998-B SUBI Collection Account with respect to any prior Collection
Period as to which the Servicer has outstanding an unreimbursed Advance,
rather than being netted from Collections by the Servicer; or (iii) any
amount of unreimbursed Advances already deposited in the 1998-B SUBI
Collection Account on any Deposit Date are reasonably determined by the
Servicer to be Nonrecoverable Advances, then, on the related Deposit Date,
the Servicer shall (y) notify the Titling Trustee and the 1998-B
Securitization Trustee in writing as to any such amount and (z) instruct the
Titling Trustee to, and the Titling Trustee shall, promptly transfer an
amount equal to the aggregate of such amounts from the 1998-B SUBI Collection
Account, to the 1998-B SUBI Lease Funding Account. Thereafter, the Titling
Trustee shall remit to the Servicer from the 1998-B SUBI Lease Funding
Account the total of such amounts, without interest (the "Servicer
Reimbursement"). In lieu of causing the Titling Trustee to transfer such
amounts to the 1998-B SUBI Lease Funding Account (or in the event the 1998-B
SUBI Lease Funding Account has not been required to be established as set
forth in Section 17.02 of the 1998-B SUBI Supplement), the Servicer is hereby
authorized to deduct such amounts from amounts on deposit or otherwise to be
deposited into the 1998-B SUBI Collection Account.
(i) The Servicer shall account to the Titling Trustee and the
1998-B Securitization Trustee with respect to the 1998-B SUBI Sub-Trust
separately from any other Sub-Trust.
(j) The Servicer shall direct the Titling Trustee or the 1998-B
Securitization Trustee, as applicable, to invest amounts held in the 1998-B
SUBI Accounts and the Reserve Fund in Permitted Investments as provided in
the Titling Trust Agreement, 1998-B SUBI Supplement and the 1998-B
Securitization Trust Agreement. The maximum permissible maturities of any
such investments pursuant to this clause on any date shall be not later than
the Business Day immediately preceding the Monthly Allocation Date next
succeeding the date of such investment, except for (i) investments on which
the Trust Agent or 1998-B Securitization Trustee, respectively, is the
obligor (including repurchase agreements as to which it, in its commercial
capacity, is liable as principal), or that are TMCC Demand Notes, which may
mature on such next succeeding Monthly Allocation Date, (ii) investments
during the Revolving Period of Principal Collections (including amounts
treated as Principal Collections pursuant to Sections 3.01(c) and 3.01(k) of
the 1998-B Securitization Trust Agreement) on deposit in the 1998-B SUBI
Collection Account, which may mature on such dates as specified by the 1998-B
Securitization Trustee at the Servicer's direction so as to maintain the
availability of sufficient
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cash to make payments pursuant to Section 3.02(c) hereof, and (iii) amounts
on deposit in the 1998-B Certificateholders' Account, which may mature on the
next succeeding relevant Certificate Payment Date or related Targeted
Maturity Date (as described in Section 3.01 of the 1998-B Securitization
Trust Agreement) as specified in the related TMCC Demand Note in accordance
with the terms of the Indenture.
(k) In the event the Servicer provides to the UTI Beneficiary, the
Titling Trustee and the 1998-B Securitization Trustee a letter from each
Rating Agency to the effect that the utilization by the Servicer of a
remittance schedule differing from those contemplated herein or in the 1998-B
SUBI Supplement with respect to Collections to be deposited in the 1998-B
SUBI Collection Account will not result in a qualification, downgrading or
withdrawal of the then-current rating assigned to the Rated Certificates by
such Rating Agency, (i) this 1998-B SUBI Servicing Supplement (and any
corresponding or related Sections in the 1998-B SUBI Supplement) may be so
modified without the consent of any Certificateholders and (ii) the Servicer
may remit such collections to the 1998-B SUBI Collection Account in
accordance with that alternative remittance schedule.
(l) The parties hereto acknowledge that the Titling Trustee, on
behalf of the Titling Trust, has made a complete transfer to the 1998-B
Securitization Trustee of the Collections in respect of the 1998-B SUBI
Assets contained in all accounts maintained by the Titling Trustee (excluding
proceeds of the Residual Value Insurance Policies, the rights to which are
evidenced by the 1998-B SUBI Insurance Certificate which is the sole property
of the Transferor) and, except as provided in this 1998-B SUBI Servicing
Supplement, the 1998-B SUBI Supplement and the 1998-B Securitization Trust
Agreement, neither the Titling Trustee nor the Servicer has any right to
direct such funds to a third party or to receive such funds (other than to
receive such funds pursuant to an investment thereof in Permitted Investments
on which such party is the obligor).
(m) In the event of a sale, disposition or other liquidation of
the 1998-B SUBI Certificate and the other property of the 1998-B
Securitization Trust pursuant to Section 7.02 or Section 8.02 of the 1998-B
Securitization Trust Agreement, the Servicer shall allocate the net proceeds
thereof as set forth in the 1998-B Securitization Trust Agreement.
4.03 RECORDS.
(a) As to any proceeds or other receipts with respect to any Trust
Asset, including without limitation Monthly Payments, Prepayments,
Liquidation Proceeds and any other payments by or on behalf of any Obligor or
otherwise with respect to any 1998-B Contract or 1998-B Leased Vehicle, the
Servicer shall maintain or cause to be maintained such computer and manual
records with respect to all such proceeds and other receipts in accordance
with the customary and usual procedures of institutions which service
closed-end automobile and light duty truck leases and, to the extent more
exacting, in conformity in all material respects with the procedures used by
the Servicer in respect of any such leases serviced by it for its own account
or the accounts of its Affiliates.
13
(b) The Servicer shall retain or cause to be retained all data
(including, without limitation, computerized records), together with all
operating software and appropriate documentation, relating directly to or
maintained in connection with the servicing of the 1998-B Contracts (the
"Contract Records") consistent with its then applicable retention policies or
applicable law. The Servicer shall provide or cause to be provided to the
Titling Trustee, on behalf of the Titling Trust, upon its request, copies of
all such data and appropriate documentation retained by the Servicer at all
reasonable times and upon reasonable notice. The Servicer shall promptly
report to the Titling Trustee, on behalf of the Titling Trust, any failure on
its part to maintain the Contract Records as herein provided and promptly
take appropriate action to remedy any such failure.
(c) Upon the occurrence and during the continuance of an Event of
Servicing Termination or if the rights of the Servicer with respect to the
1998-B SUBI Portfolio are terminated in accordance with Section 6.01(b) of
this 1998-B SUBI Servicing Supplement or, if this 1998-B SUBI Servicing
Supplement is terminated pursuant to Section 7.01, the Servicer shall, on
demand of the Titling Trustee, on behalf of the Titling Trust (either at the
request of the 1998-B Securitization Trustee or, as provided in Section
6.01(b) of this 1998-B SUBI Servicing Supplement, upon demand of Investor
Certificateholders representing not less than 51% of the aggregate Voting
Interest), deliver to the 1998-B Securitization Trustee all such data,
operating software and appropriate documentation necessary for the servicing
of the 1998-B Contracts, including but not limited to the related Contract
Documents and Title Documents, all moneys collected by it and required to be
deposited in any 1998-B SUBI Account on behalf of the Titling Trust, or in
the 1998-B SUBI Collection Account or the Reserve Fund on behalf of the
1998-B Securitization Trust, all Security Deposits with respect to 1998-B
Contracts, and any 1998-B Leased Vehicle in the possession of the Servicer
that has been repossessed or is part of Matured Leased Vehicle Inventory and
in either case has not yet been sold or otherwise disposed of. In addition
to delivering such data, operating software and appropriate documentation and
moneys, if a new servicer is appointed, the Servicer shall use its
commercially reasonable efforts to effect the orderly and efficient transfer
of the servicing of the 1998-B Contracts to the party that will be assuming
responsibility for such servicing, including, without limitation, directing
Obligors to remit payments in respect of such Contracts to an account or
address designated by the Titling Trustee or such new servicer.
4.04 COLLECTION AND APPLICATION OF SECURITY DEPOSITS.
Subject to Section 4.03(c) of this 1998-B SUBI Servicing
Supplement, the Servicer shall retain each Security Deposit remitted to it
(or deemed remitted to it) as agent and bailee for the Obligor until such
time as the Titling Trust, the Titling Trustee on behalf of the Titling
Trust, or the Servicer may lawfully and under the terms of the related
Contract apply such Security Deposit against unpaid amounts owed under the
Contract, damages to the related Leased Vehicle, excess wear and tear
charges, expenses in connection with the refurbishment and disposal of the
related Leased Vehicle or against fees, charges, payments or expenses
advanced or paid by the Servicer in accordance with applicable law, its
customary and usual servicing procedures and the related Contract, from and
after which time such amounts will be 1998-B
14
SUBI Assets, subject to any reimbursement due to the Servicer. To the extent
any Security Deposit or portion thereof is to be treated as proceeds of a
Contract or Leased Vehicle (because such Contract has become a Charged-Off
Contract), the related Security Deposit or such portion shall be deemed to be
Liquidation Proceeds. On each Deposit Date, but otherwise as provided in
Section 4.02(c)(ii) of this 1998-B SUBI Servicing Supplement, the Servicer
shall deposit into the 1998-B SUBI Collection Account each Security Deposit
that became Liquidation Proceeds during the previous month; otherwise, each
Security Deposit, after deduction for amounts applied towards the payment or
reimbursement of any amount described above, shall be returned to the related
Obligor by the Servicer upon termination of such Contract.
4.05 ADVANCES.
(a) On or prior to each Deposit Date, the Servicer shall make an
Advance with respect to each outstanding delinquent 1998-B Contract and each
1998-B Contract as to which payments have been deferred resulting in the
diminution of the amount to be received on any Due Date relative to the
amount of each originally scheduled Monthly Payment if such 1998-B Contract
has not been reallocated to the UTI Portfolio with an accompanying
Reallocation Payment. Each such Advance will be made by deposit into the
1998-B SUBI Collection Account of an amount equal to the aggregate amount of
Monthly Payments due but not received during the related Collection Period.
(b) Notwithstanding any other provision of this 1998-B SUBI
Servicing Supplement, the Servicer shall not be obligated to make any Advance
in respect of any 1998-B Contract if the Servicer shall have reasonably
determined that any such Advance, if made, would constitute a Nonrecoverable
Advance. Any such determination relating to a claim by the Servicer for
reimbursement of Nonrecoverable Advances from monies on deposit on the 1998-B
SUBI Collection Account shall be evidenced by an Officer's Certificate (or
the statement to Certificateholders or the certification by any other
authorized signatory) of the Servicer furnished to each UTI Beneficiary, the
Titling Trustee and the 1998-B Securitization Trustee setting out the basis
for such determination, which determination shall be conclusive and binding
absent manifest error.
4.06 PAYMENT OF CERTAIN FEES AND EXPENSES; NO OFFSET.
(a) As part of its obligations hereunder, to the extent that cash
flows relating to the 1998-B SUBI Sub-Trust, as set forth in Section 3.01(c)
of the 1998-B Securitization Trust Agreement, are insufficient to provide for
the payment of all fees and expenses due to the Titling Trustee or the 1998-B
Securitization Trustee as Capped Titling Trust Administrative Expenses,
Capped Securitization Trust Administrative Expenses, Uncapped Titling Trust
Administrative Expenses or Uncapped Securitization Trust Administrative
Expenses, the Servicer shall advance an amount equal to such excess fees and
expenses as they become payable from time to time and agrees to indemnify the
Titling Trustee and the 1998-B Securitization Trustee and their respective
officers, directors, employees and agents for such amounts. The Servicer
shall be entitled to reimbursement of such advances as set forth the 1998-B
Securitization Trust
15
Agreement. The obligations of the Servicer pursuant to this Section shall
survive any termination of the Servicer's rights and obligations with respect
to the 1998-B SUBI Portfolio under this 1998-B SUBI Servicing Supplement.
(b) Prior to the termination of the Servicer's rights and
obligations with respect to the 1998-B SUBI Sub-Trust and thereafter if such
termination results from an Event of Servicing Termination, the obligations
of the Servicer with respect to the 1998-B SUBI Sub-Trust shall not be
subject to any defense, counterclaim or right of offset that the Servicer has
or may have against any UTI Beneficiary, the Titling Trustee on behalf of the
Titling Trust, or the 1998-B Securitization Trustee, whether in respect of
this 1998-B SUBI Servicing Supplement, the 1998-B SUBI Supplement, any
Securitization Trust Document, any 1998-B Contract, any related Contract
Document, any 1998-B Leased Vehicle or otherwise.
4.07 SERVICING COMPENSATION.
(a) As compensation for the performance of its obligations under
this 1998-B SUBI Servicing Supplement, the Servicer shall be entitled to
receive from the Titling Trustee, on behalf of the Titling Trust, on each
Monthly Allocation Date, the Servicing Fee equal to the sum of:
(i) An amount (the "Servicing Rate Portion") equal to
one-twelfth of 1.00% of the Aggregate Net Investment Value as of the
first day of the related Collection Period; and
(ii) Any late fees, deferral fees and other administrative fees
or similar charges paid by any Obligor pursuant to a 1998-B Contract
during the related Collection Period;
PROVIDED, however, the Servicing Fee shall be paid out of cash flows and in
accordance with the priorities of payments specified in Section 3.01(c) of
the 1998-B Securitization Trust Agreement and the Servicer may be reimbursed
for advancing certain Administrative Expenses as provided in this 1998-B SUBI
Servicing Supplement. Further, as additional servicing compensation with
regard to the 1998-B SUBI Sub-Trust, the Servicer also shall receive income
as and to the extent provided in the 1998-B Securitization Trust Agreement.
The Servicing Rate Portion will be calculated and paid based upon a
360-day year consisting of twelve 30-day months. The Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement of such expenses except to the
extent they constitute Charged-Off Vehicle Expenses, Matured Lease Vehicle
Expenses or other Liquidation Expenses or, as provided in Section 4.12 of
this 1998-B SUBI Servicing Supplement, expenses recoverable under an
applicable Insurance Policy or repayments from the related Obligor, as
provided in Section 4.12 of this 1998-B SUBI Servicing Supplement. For so
long as there shall be only one Servicer for the Titling Trust, the Servicing
Fee shall be deemed to be an expense incurred with respect to the Titling
Trust Assets generally; if at any time the Servicer shall only service some
(but not all) Sub-Trusts, the Servicing Fee
16
shall be deemed to be an expense incurred with respect to that discrete group
of Titling Trust Assets contained in the Sub-Trusts the Servicer then
services.
(b) So long as TMCC is the Servicer, the Servicer may, by notice
to the Titling Trustee and the 1998-B Securitization Trustee on or prior to
any Determination Date, waive its Servicing Fee with respect to the related
Collection Period, if the Servicer believes that sufficient collections will
be available from Interest Collections on one or more future Monthly
Allocation Dates (other than from amounts on deposit in the Reserve Fund) to
pay such waived Servicing Fee, without interest. If the Servicer waives such
Servicing Fee, the Servicing Fee with respect to such Collection Period shall
be deemed to be zero for all purposes, provided, however, that for purposes
of Section 3.01(c)(iv) of the 1998-B Securitization Trust Agreement, any such
waived Servicing Fee thereafter shall be treated as an unpaid Servicing Fee
with respect to a prior Collection Period (unless the Servicer continues to
waive such Servicing Fee for subsequent Monthly Allocation Dates or waives
such Servicing Fee permanently).
4.08 REPOSSESSION AND SALE OF LEASED VEHICLES.
In accordance with the procedures used by the Servicer in respect
of any comparable leases and leased vehicles serviced by it for its own
account or the accounts of its Affiliates (including procedures used in
connection with new programs commenced in the ordinary course of business,
whether or not implemented on a test basis), the Servicer shall use its
commercially reasonable efforts to (i) repossess the Leased Vehicle related
to any 1998-B Contract that the Servicer shall have determined to be in
default to the same extent the Servicer would repossess a vehicle pursuant to
a lease contract that is property of the Servicer or (ii) otherwise take
possession of any Leased Vehicle related to any 1998-B Contract to the same
extent the Servicer would take possession of a vehicle pursuant to a lease
contract that is property of the Servicer.
The Servicer shall, in accordance with the standards set forth in
the immediately preceding paragraph:
(a) follow such practices and procedures as it shall deem
necessary or advisable in its servicing of closed-end automobile and light
duty truck leases, which may include reasonable efforts to realize upon any
recourse to Dealers, consigning a Leased Vehicle to a motor vehicle dealer
for resale or selling a Leased Vehicle at public or private sale; and
(b) sell or otherwise dispose of each 1998-B Leased Vehicle that
is repossessed in accordance with the related 1998-B Contract or that becomes
part of Matured Leased Vehicle Inventory for the 1998-B SUBI Sub-Trust and,
if such related 1998-B Contract is in default, shall commence and prosecute
any proceedings in respect of such 1998-B Contract (and such Leased Vehicle)
in its own name or, if the Servicer deems it necessary, in the name of the
Titling Trustee, on behalf of the Titling Trust.
17
The obligations of the Servicer under this Section are subject to
the provision that, in the event of damage to a 1998-B Leased Vehicle from a
cause for which the Obligor under the related 1998-B Contract was not
required to obtain casualty insurance or maintain such insurance in full
force and effect, the Servicer shall not be required to expend its own funds
in repairing such Leased Vehicle unless it shall reasonably determine that
such restoration will increase Liquidation Proceeds (net of Liquidation
Expenses) of the related 1998-B Contract by at least an equivalent amount.
The Servicer shall only expend funds in connection with the repossession
and/or sale of any 1998-B Leased Vehicle to the extent that it would do so in
connection with the sale or disposition of vehicles subject to lease
contracts that are its own property. The Servicer shall be responsible for
all other costs and expenses incurred by it in connection with any action
taken in respect of a 1998-B Contract or the related Leased Vehicle;
provided, however, that it shall be entitled to reimbursement of such costs
and expenses to the extent they constitute Charged-Off Vehicle Expenses,
Matured Leased Vehicle Expenses or other Liquidation Expenses or expenses
recoverable under an applicable Insurance Policy. All Matured Leased Vehicle
Expenses or other Liquidation Proceeds and Insurance Proceeds (other than
proceeds of the Residual Value Insurance Policies, the rights to which are
evidenced by the 1998-B SUBI Insurance Certificate, which is the sole
property of the Transferor) shall be deposited and transferred as provided in
Section 4.02 of this 1998-B Servicing Supplement. Notwithstanding the
foregoing, in the event the Servicer determines that, in accordance with its
normal servicing procedures, it will apply the Insurance Proceeds with
respect to a damaged or destroyed Leased Vehicle to the substitution of
another vehicle (for which the Contract will remain in force, but will relate
to such substituted vehicle), the Servicer shall be permitted to so apply
such Insurance Proceeds and shall not report or treat such funds as Insurance
Proceeds hereunder. Any such substituted vehicle shall thereafter be the
relevant 1998-B Leased Vehicle and such vehicle shall be the "related Leased
Vehicle" with respect to such 1998-B Contract, for all purposes of the 1998-B
SUBI Sub-Trust.
Notwithstanding the foregoing, prior to transferring any such funds
out of its operating account, the Servicer shall first deduct therefrom any
unreimbursed Charged-Off Vehicle Expenses, Matured Leased Vehicle Expenses or
other Liquidation Expenses and expenses recoverable under an applicable
Insurance Policy. In connection with this Section, the Titling Trustee, on
behalf of the Titling Trust, shall grant to the Servicer a power of attorney
in the form attached as Exhibit C with regard to the 1998-B Leased Vehicles,
with full power of substitution. The Servicer shall not conduct such a
substitution other than in the ordinary course of its business and on
substantially the same terms as are consistent with its past practices.
The Servicer is not required hereby to deduct from Charged-Off
Vehicle Proceeds, Matured Leased Vehicle Proceeds or other Liquidation
Proceeds or Insurance Proceeds with respect to any particular 1998-B Leased
Vehicle all related unreimbursed Charged-Off Vehicle Expenses, Matured Leased
Vehicle Expenses or other Liquidation Expenses or Insurance Expenses prior to
transferring such funds out of its operating account. Such expenses may
instead be reimbursed as provided in Section 4.02(h) of this 1998-B SUBI
Servicing Supplement.
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4.09 SERVICER TO ACT ON BEHALF OF TITLING TRUST.
(a) In order to facilitate the servicing of the 1998-B SUBI
Sub-Trust by the Servicer, the Titling Trustee, on behalf of the Titling
Trust, hereby appoints the Servicer as its agent, bailee and custodian to
retain possession of the related Contract Documents, Title Documents and any
other related items that from time to time come into possession of the
Servicer, and the Servicer hereby accepts such appointment.
(b) The Servicer shall maintain each such Contract Document and
Title Document at its offices identified on the attached Schedule I, or at
such other office as shall be specified by the Servicer to the Titling
Trustee on 30 days' prior notice. The Servicer shall promptly report to the
Titling Trustee any failure on its part to retain possession of any such
Contract Documents or Title Documents and promptly take appropriate action to
remedy any such failure.
(c) Upon written instructions from the Titling Trustee, on behalf
of the Titling Trust, setting forth a reasonable basis therefor, or in the
exercise of its duties and powers hereunder, the Servicer shall release any
Contract Document, Title Document, or other related item to the Titling
Trustee or its agent or designee, as the case may be, at such place or places
as the Titling Trustee may designate, as soon as practicable. The Servicer
shall not be responsible for any loss occasioned by the failure of the
Titling Trustee to return any document or any delay in doing so.
(d) The Servicer shall be deemed to have received proper
instructions with respect to any such Contract Document, Title Document, any
other related item or any Contract Record, upon its receipt of written
instructions by a Responsible Officer of the Titling Trustee. A certified
copy of a bylaw or a resolution of the Board of Directors of the Titling
Trustee shall constitute conclusive evidence of the authority of any such
Responsible Officer to act and shall be considered in full force and effect
until receipt by the Servicer of written notice to the contrary given by the
Titling Trustee.
(e) The Servicer shall identify from time to time all (i) periodic
sales and use tax or property (real or personal) tax reports, (ii) periodic
renewals of licenses and permits, (iii) periodic renewals of qualification to
act as a trust and a business trust and (iv) other periodic governmental
filing, registration or approvals (collectively, "Filings") arising with
respect to or required of the Titling Trust or the Titling Trustee,
including (in the case of clauses (ii) and (iv)) such licenses, permits, and
other Filings as are required for the Titling Trust or the Titling Trustee to
accept assignments of 1998-B Contracts and to be identified as the owner of
1998-B Leased Vehicles on their Certificates of Title. The Servicer shall
also identify any surety bonds or other ancillary undertakings required of
the Titling Trust or the Titling Trustee in respect of any Filing. The
Servicer shall timely prepare and file, or cause to be filed, with the
cooperation of the Titling Trustee, on behalf of the Titling Trustee, or the
Titling Trust with the appropriate Person each Filing and each such ancillary
undertaking with a copy to the Titling Trustee. In connection with this
Section, the Titling Trustee, on behalf of the Titling Trust, shall grant to
the Servicer such authority, including without limitation any necessary power
of attorney in the form
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attached as Exhibit C, as it may require in order to effect each such Filing
and ancillary undertaking. Should the Servicer at any time receive notice,
or have actual knowledge, of any non-compliance with any Filing requirement,
it shall promptly so notify the Titling Trustee.
(f) The Titling Trustee shall deliver to the Servicer and the
1998-B Securitization Trustee, promptly upon their execution and delivery by
the parties thereto, each amendment and supplement to the Titling Trust
Agreement as any such amendment and supplement relates to the 1998-B SUBI
Sub-Trust. The Servicer shall not act contrary to any provision of the
Titling Trust Agreement as it relates to the 1998-B SUBI Sub-Trust, as so
amended or supplemented.
4.10 INDEMNIFICATION BY SERVICER.
The Servicer (for purposes of this Section, the "Indemnifying
Party") agrees to indemnify, defend and hold harmless the 1998-B
Securitization Trustee, the Titling Trustee and each of their respective
officers, directors, employees and agents (each an "Indemnified Party") for
any and all liabilities, losses, damages and expenses (including without
limitation reasonable fees and expenses of counsel) that may be incurred by
any Indemnified Party as a result of any act or omission by the Servicer in
connection with its maintenance and custody of the Contract Documents, Title
Documents, and Contract Records with respect to 1998-B Contracts and 1998-B
Leased Vehicles, the servicing of the 1998-B Contracts, the Servicer's
undertakings in clause (e) of Section 4.09 of this 1998-B SUBI Servicing
Supplement or any other activity undertaken or omitted by the Servicer with
respect to any 1998-B SUBI Asset. Promptly after receipt by an Indemnified
Party under this Section of notice of the commencement of any action, such
Indemnified Party will, if a claim in respect thereof is to be made against
the Indemnifying Party under this Section, notify the Indemnifying Party of
the commencement thereof. In case any such action is brought against any
Indemnified Party and it notifies the Indemnifying Party of the commencement
thereof, the Indemnifying Party will assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Party (who may, unless there is,
as evidenced by an opinion of counsel to the Indemnified Party stating that
there is an unwaivable conflict of interest, be counsel to the Indemnifying
Party), and the Indemnifying Party will not be liable to such Indemnified
Party under this Section for any legal or other expenses subsequently
incurred by such Indemnified Party in connection with the defense thereof
other than reasonable costs of investigation. The obligations set forth in
this Section shall survive the termination of this 1998-B SUBI Servicing
Supplement or the resignation or removal of the Servicer (generally or with
respect to the 1998-B SUBI Sub-Trust) or the 1998-B Securitization Trustee.
4.11 THIRD PARTY CLAIMS.
The Servicer shall immediately notify TLI (in the event that TMCC
is not acting as the Servicer hereunder), the Titling Trustee, on behalf of
the Titling Trust, the 1998-B Securitization Trustee, on behalf of the 1998-B
Securitization Trust, and any other holder of the 1998-B SUBI Certificate or
1998-B SUBI Insurance Certificate upon its learning that a claim of whatever
kind that would, if proven or converted to judgment, have a material adverse
impact on any UTI Beneficiary, the Transferor, the Titling Trustee, the
Titling Trust, the 1998-B
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Securitization Trust, the 1998-B Securitization Trustee, the Investor
Certificateholders, any 1998-B SUBI Asset or the Servicer is being made by a
third party with respect to any Contract or Leased Vehicle (whether or not
included in the 1998-B SUBI Sub-Trust) or the servicing thereof or with
respect to any other Titling Trust Asset (whether or not constituting a
1998-B SUBI Asset).
4.12 INSURANCE POLICIES.
So long as any 1998-B SUBI Certificates are outstanding, the
Servicer will maintain and pay when due all premiums with respect to, and the
Servicer may not terminate or cause the termination of the following (all
premiums with respect to which shall constitute Administrative Expenses):
(i) the Contingent and Excess Liability Insurance Policies unless (A) one or
more replacement insurance policies or binder(s) is obtained providing
coverage against third party claims that may be raised against the Titling
Trustee, on behalf of the Titling Trust, with respect to any Leased Vehicle
included in the 1998-B SUBI Sub-Trust in an amount at least equal to $10
million per claim, not subject to any annual or aggregate cap (which policy
or policies may be a blanket insurance policy or policies covering the
Servicer and one or more of its Affiliates), or (B) each Rating Agency has
delivered a letter to the 1998-B Securitization Trustee to the effect that
the obtaining of any such replacement insurance policy or policies, in and of
itself, will not cause its then-current rating of any of the Rated
Certificates to be qualified, reduced or withdrawn; or (ii) the Residual
Value Insurance Policies specified in clause (i) of the definition of
Residual Value Insurance Policies in the Amex of Supplemental Definitions,
unless the 1998-B Contracts may properly be treated as finance leases for
purposes of generally accepted accounting principles, consistently applied,
by virtue of some reason other than maintenance of that policy, and the
Servicer has provided to the Titling Trustee and the 1998-B Securitization
Trustee an Officer's Certificate to that effect, describing such reasons
which shall be in accordance with GAAP. On or before December 31 of each
year, the Servicer shall provide to the Titling Trustee one or more Officer's
Certificates (or certification by a duly authorized signatory of the
Servicer) certifying that the policies it is required to maintain pursuant to
this Section remain in full force and effect. The obligations of the
Servicer pursuant to this Section shall survive any termination of the
Servicer's obligations with respect to the 1998-B SUBI Sub-Trust under this
1998-B SUBI Servicing Supplement.
4.13 SERVICER NOT TO RESIGN; ASSIGNMENT.
(a) Except as provided in Section 6.01 of this 1998-B SUBI
Servicing Supplement, the Servicer shall not resign from the duties and
obligations hereby imposed on it as Servicer except upon determination by its
Board of Directors (or the Executive Committee thereof) that by reason of a
change in applicable legal requirements the continued performance by the
Servicer of its duties as Servicer under this 1998-B Servicing Supplement
would cause it to be in violation of such legal requirements in a manner that
would result in a material adverse effect on the Servicer or its financial
condition, said determination to be evidenced by a Board Resolution to such
effect accompanied by an Opinion of Counsel reasonably satisfactory to the
Titling Trustee of Independent counsel reasonably satisfactory to the Titling
Trustee, to such
21
effect. No such resignation shall become effective unless and until a new
servicer is willing to service the Contracts and enters into a servicing
agreement with the Titling Trustee, on behalf of the Titling Trust, such
agreement to have substantially the same provisions as this Servicing
Agreement. The Titling Trustee, on behalf of the Titling Trust, shall not
unreasonably fail to consent to such a servicing agreement.
(b) If the Servicer resigns in the circumstances contemplated by
clause (a) above, in addition to the requirements set forth therein, the
Opinion of Counsel required thereby also shall be reasonably satisfactory to
the 1998-B Securitization Trustee. The 1998-B Securitization Trustee shall
not unreasonably fail to consent to a servicing agreement with a new servicer
that proposes to enter into a servicing agreement that meets the standards
required by this 1998-B SUBI Servicing Supplement. No such resignation shall
affect the obligation of the Servicer to remit moneys to the 1998-B SUBI
Collection Account (in lieu of unrecoverable insurance proceeds pursuant to
Section 4.14), or the obligations of the Servicer pursuant to Sections
3.03(a), 4.04, 4.06(a), 4.10 or 4.12 of this 1998-B SUBI Servicing
Supplement. No successor Servicer shall be required to undertake any of the
foregoing, other than (i) the obligations set forth in Section 4.04, to the
extent that such obligations are transferred to a successor Servicer pursuant
to Section 6.01 of this 1998-B SUBI Servicing Supplement, (ii) the obligation
set forth in Section 4.06(a) of this 1998-B SUBI Servicing Supplement (which
shall remain a joint and several obligation of the initial Servicer and any
successor Servicer) and (iii) the obligations set forth in Section 4.10,
which provision shall not require indemnification by any successor Servicer
for the actions of the Servicer under this 1998-B SUBI Servicing Supplement.
The Titling Trustee shall give prompt notice to each Rating Agency of any
such resignation of the Servicer, and the Titling Trustee and 1998-B
Securitization Trustee and of the proposed substitute servicer.
(c) The Servicer may not assign this Servicing Agreement or any of
its rights, powers, duties or obligations hereunder; provided, however, that
the Servicer may assign this Servicing Agreement in connection with a
consolidation, merger, conveyance, transfer or lease made in compliance with
Section 4.15 of this 1998-B SUBI Servicing Supplement.
(d) Except as provided above, the duties and obligations of the
Servicer under this 1998-B SUBI Servicing Supplement shall continue until
this 1998-B SUBI Servicing Supplement shall have been terminated as provided
in Section 7.01 of this 1998-B SUBI Servicing Supplement and shall survive
the exercise by the Titling Trustee, on behalf of the Titling Trust, of any
right or remedy under this 1998-B SUBI Servicing Supplement or the
enforcement by the Titling Trustee, on behalf of the Titling Trust, of any
provision of the Titling Trust Documents.
4.14 OBLIGOR INSURANCE COVERAGE IN RESPECT OF LEASED VEHICLES.
The Servicer shall use its normal servicing procedures (including
procedures used in connection with new programs commenced in the ordinary
course of business, whether or not implemented on a test basis) to ensure
that the Obligor under each Contract shall have, and
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maintain in full force and effect during the term of such Contract, a
comprehensive, collision and property damage insurance policy covering the
actual cash value of the related Leased Vehicle and naming the Titling Trust
or the Titling Trustee on behalf of the Titling Trust as a loss payee, as
well as public liability, bodily injury and property damage coverage in the
amounts required by applicable state law or as set forth in such Contract,
and naming the Titling Trust or the Titling Trustee on behalf of the Titling
Trust as an additional insured. Notwithstanding the foregoing, if an
insurance policy names the Servicer rather than the Titling Trust or the
Titling Trustee on behalf of the Titling Trust as loss payee or additional
insured, the Servicer shall not be required to correct such designation as
long as the Servicer is responsible for any increased deductibles under any
Contingent and Excess Liability Policy as provided in the following
paragraph. Except as otherwise set forth in this 1998-B SUBI Servicing
Supplement or in any other Transaction Document, the Servicer shall, on at
least a monthly basis, deposit into the 1998-B SUBI Collection Account any
proceeds of such Insurance Policy that the Servicer may receive with respect
to any 1998-B Leased Vehicle.
In each case as to which a deductible is applicable under any
Contingent and Excess Liability Policy, the Servicer will pay the deductible
on behalf of the insured. The foregoing obligation of the Servicer shall
survive the resignation of the Servicer or any termination of it as Servicer
under this 1998-B SUBI Servicing Supplement pursuant to Section 6.01 of this
1998-B SUBI Servicing Supplement.
4.15 CORPORATE EXISTENCE; STATUS; MERGER.
(a) The Servicer shall keep in full effect its existence, rights
and franchises (except as set forth in (b) below) as a California corporation
and will obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or the earnings of
the Servicer and its subsidiaries considered as a whole, and in each
jurisdiction in which such qualification is or shall be necessary to protect
the validity and enforceability of, or to permit the Servicer to perform its
obligations under, the Transaction Documents.
(b) The Servicer shall not consolidate with or merge into any
other corporation or convey, transfer or lease all or substantially all of
its assets as an entirety to any Person without the prior written consent of
the Titling Trustee, on behalf of the Titling Trust, unless (i) the
corporation formed by such consolidation or into which the Servicer has
merged or the Person which acquires by conveyance, transfer or lease all or
substantially all the assets of the Servicer as an entirety is (A) a citizen
of or an entity organized and existing under the laws of the United States or
any State and (B) either executes and delivers to the Titling Trustee, on
behalf of the Titling Trust, an agreement in form and substance reasonably
satisfactory to the Titling Trustee, that contains an assumption by such
successor entity of the due and punctual performance and observance of each
covenant and condition to be performed or observed by the Servicer under this
1998-B SUBI Servicing Supplement and the other Transaction Documents or is so
bound by
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operation of law, or (ii) the Servicer is the surviving corporation resulting
from such consolidation or merger.
ARTICLE V
STATEMENTS AND REPORTS
5.01 REPORTING BY THE SERVICER.
(a) On or prior to the 25th day of each calendar month, the
Servicer shall cause to be delivered to the Titling Trustee a report in
respect of the prior calendar month, setting forth (i) any information
relating to the 1998-B Contracts or the related Leased Vehicles that normally
would be available from a servicer of closed-end automobile and light-duty
truck leases and is reasonably requested by the Titling Trustee and (ii) if
required, any additional information required by the terms of any Securitized
Financing, and (iii) deliver such other reports, Officer's Certificates or
certificates from other authorized signatories as may be necessary pursuant
to this 1998-B SUBI Servicing Supplement to document to the 1998-B
Securitization Trustee the Servicer's right to any further reimbursement of
unreimbursed Servicer Expenses.
(b) On or prior to each Determination Date and each Transfer Date,
the Servicer shall deliver or cause to be delivered to the Titling Trustee
and the 1998-B Securitization Trustee a supplement to the Schedule of 1998-B
Contracts and 1998-B Leased Vehicles containing data reflecting the addition
or removal of 1998-B Contracts or 1998-B Leased Vehicles from the 1998-B SUBI
Portfolio as of the first day of the current Collection Period (in the case
of each Determination Date) or as of the related Subsequent Cutoff Date (in
the case of each Transfer Date). Any such supplement shall contain, in
addition to the data required by the definition of the term "Schedule of
Contracts and Leased Vehicles", an identification of the Discounted Principal
Balance of each 1998-B Contract added or removed. Such reports will be
delivered by the Servicer to the 1998-B Securitization Trustee and the
Luxembourg Stock Exchange, at such times as set forth in Section 3.03 of the
1998-B Securitization Trust Agreement and will be made available at the
offices of each Paying Agent. In addition, the Servicer shall, on or prior
to each Determination Date, cause to be delivered to the Titling Trustee, the
1998-B Securitization Trustee, each Rating Agency, and the Luxembourg Stock
Exchange a certificate in the name of the Servicer, executed by an officer or
authorized signatory therefor in respect of such Collection Period (the
"Servicer's Certificate") substantially in the form attached hereto as
Exhibit B (and setting forth such additional information as requested by each
Rating Agency from time to time and which information the Servicer is able to
reasonably provide), containing all information necessary to make the
allocations and applications or payments required by the 1998-B
Securitization Trust Agreement in respect of the Collection Period
immediately preceding such Determination Date, including the information
needed to prepare the statement required by Section 3.03 of the 1998-B
Securitization Trust Agreement. Any person may obtain a copy of a Servicer's
Certificate at no charge at the office of any Paying Agent or from the 1998-B
Securitization Trustee upon written request, and the 1998-B Securitization
Trustee shall have no obligation to determine whether such person is a
Certificateholder.
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(c) On or prior to each Determination Date the Servicer shall
calculate the Coupon Amount for the relevant Interest Period pursuant to
Section 3.01 of the 1998-B Securitization Trust Agreement. The calculation of
the Coupon Amount by the Servicer shall, in the absence of manifest error, be
final and binding upon all parties.
(d) In addition, within a reasonable period of time after the end of
each calendar year during the term of the 1998-B Securitization Trust Agreement,
the Servicer will forward to the Titling Trustee, the 1998-B Securitization
Trustee, the Luxembourg Stock Exchange and the 1998-B Securitization Trustee
will make available to each Certificateholder, a statement, setting forth the
amounts described in clauses (ii) through (x) in Section 3.03(a) of the 1998-B
Securitization Trust Agreement on an aggregate or annualized basis, as
appropriate as well as the amount paid in respect of interest on and principal
of each Class of Class A Certificates.
(e) Upon the occurrence of [__________________] of which the Servicer
has actual knowledge, the Servicer shall give prompt written notice thereof to
the 1998-B Securitization Trustee, specifying the cause or causes of such event.
5.02 ANNUAL ACCOUNTANTS' REPORTS.
Within 120 days after September 30 of each fiscal year for the
Servicer (commencing with the year ended September 30, 1998), the Servicer shall
deliver to the Titling Trustee, the 1998-B Securitization Trustee and the UTI
Beneficiary (if TMCC is no longer both the Servicer and the UTI Beneficiary) a
report prepared by the Independent Accountants of the Servicer concerning their
review of the activities of the Servicer during the preceding 12-month period
ended September 30 (or other applicable period in the case of the first such
report or letter) to the effect that such accountants have reviewed certain
records and documents relating to the servicing of the Contracts under this
Agreement (using procedures specified in such report or letter) and as a result
of such review, and in connection with such procedures, they are reporting such
exceptions, if any, as shall be set forth therein. Such report or letter shall
also indicate that the firm is independent with respect to the Transferor and
the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
In the event such Independent Accountants require the 1998-B
Securitization Trustee to agree to the procedures performed by such firm, the
Servicer shall direct the 1998-B Securitization Trustee in writing to so agree;
it being understood and agreed that the 1998-B Securitization Trustee will
deliver such letter of agreement in conclusive reliance upon the direction of
the Servicer, and the 1998-B Securitization Trustee makes no independent inquiry
or investigation as to, and shall have no obligation or liability in respect of,
the sufficiency, validity or correctness of such procedures.
5.03 OTHER CERTIFICATES AND NOTICES FROM SERVICER.
(a) Within 120 days after September 30 of each calendar year
(commencing with the year ended September 30, 1998), the Servicer shall deliver
an Officer's Certificate to the
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Titling Trustee and the 1998-B Securitization Trustee to the effect that a
review of the activities of the Servicer during the prior calendar year (or
since the commencement of the Titling Trust in the case of the first such
Officer's Certificate) has been made under the supervision of the officer
executing such Officer's Certificate with a view to determining whether
during such period the Servicer has performed and observed all of its
obligations under this 1998-B SUBI Servicing Supplement, and either (i)
stating that, to the best of his or her knowledge, no default by the Servicer
under this 1998-B SUBI Servicing Supplement has occurred and is continuing,
or (ii) if such a default has occurred and is continuing, specifying such
default and the nature and status thereof.
(b) In the event the rating of the Servicer's long-term unsecured
debt obligations falls below Baa1 by Moody's or BBB+ for Standard & Poor's as
determined by a Rating Agency, then on a quarterly basis, the Servicer shall
cause to be delivered to the 1998-B Securitization Trustee and each Rating
Agency an Officer's Certificate stating that neither the Titling Trust nor any
of its ERISA Affiliates: (i) maintains a Plan, which, as of its last valuation
date, has any unfunded current liability; (ii) anticipates that the value of the
assets of any Plan it maintains would not be sufficient to cover any Current
Liability; or (iii) is contemplating benefit improvements with respect to any
Plan then maintained by any such entity or the establishment of any new Plan,
either of which would cause any such entity to maintain a Plan with Unfunded
Current Liability.
5.04 TAX RETURNS.
As contemplated by Section 6.12 of the 1998-B Securitization Trust
Agreement, the Servicer shall direct the 1998-B Securitization Trustee to
prepare or cause to be prepared, on behalf of the Transferor, any required
federal tax information returns (in a manner consistent with the treatment of
the Investor Certificates as indebtedness). Also as contemplated by Section
6.12 of the 1998-B Securitization Trust Agreement, the Servicer shall timely
prepare or cause to be prepared any federal and state tax returns that may be
required with respect to the 1998-B Securitization Trust or the assets thereof
and shall timely deliver any such returns to the 1998-B Securitization Trustee
for signature.
ARTICLE VI
DEFAULT
6.01 EVENT OF SERVICING TERMINATION; TERMINATION OF SERVICER AS TO
1998-B SUBI PORTFOLIO.
(a) "Events of Servicing Termination" as used herein shall have the
meaning set forth in the attached Annex of Supplemental Definitions. Upon the
occurrence of an event or circumstance of force majeure, the Servicer shall not
be relieved from using all commercially reasonable efforts to perform its
obligations in a timely manner, and the Servicer shall provide to the Titling
Trustee, the 1998-B Securitization Trustee, the Transferor and the Investor
26
Certificateholders prompt notice of such failure or delay, together with a
description of its efforts to perform its obligations.
(b) If any Event of Servicing Termination shall have occurred and
be continuing, the Titling Trustee may or at the direction of the 1998-B
Securitization Trustee shall (which direction will only be given pursuant to
Section 6.01(c)(iii) of the 1998-B Securitization Trust Agreement), terminate
all or a portion of the rights and powers of the Servicer under this 1998-B
SUBI Servicing Supplement, including all or a portion of the rights of the
Servicer to receive the servicing compensation provided for in Section 4.07
of this 1998-B SUBI Servicing Supplement with respect to all periods
following such termination. Upon any such termination, and subject to the
limitations set forth in Section 4.13(b) of this 1998-B SUBI Servicing
Supplement, all rights, powers, duties and responsibilities of the Servicer
under this 1998-B SUBI Servicing Supplement, whether with respect to the
related Contract Documents, the related Title Documents or Contract Records,
the Servicing Fee or otherwise, so terminated shall vest in and be assumed by
any successor servicer appointed by the Titling Trustee pursuant to a
servicing agreement with the Titling Trustee, on behalf of the Titling Trust,
containing substantially the same provisions as this 1998-B SUBI Servicing
Supplement (including with respect to the compensation of such successor
servicer), and the Titling Trustee is hereby irrevocably authorized and
empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments (including
any notices to Obligors deemed necessary or advisable by the Titling
Trustee), and to do or accomplish all other acts or things necessary or
appropriate to effect such vesting and assumption, including, without
limitation, directing some or all of the Obligors to remit Monthly Payments,
Prepayments and all other payments on or in respect of the 1998-B Contracts
and the 1998-B Leased Vehicles to an account or address designated by the
Titling Trustee or such new servicer. Further, in such event, the Servicer
shall use its commercially reasonable efforts to effect the orderly and
efficient transfer of the servicing of the affected 1998-B Contracts to the
new servicer (including transfer of the Security Deposits being held by the
Servicer pursuant to Section 4.04 of this 1998-B SUBI Servicing Supplement),
and as promptly as practicable, the Servicer shall provide to the new
servicer a current computer tape containing all information from the Contract
Records required for the proper servicing of the affected Contracts, together
with documentation containing any and all information necessary for use of
the tape.
(c) The Titling Trustee, on behalf of the Titling Trust, shall upon
the written direction of (i) if there is a UTI Pledge, the pledgee thereof or,
if not, the UTI Beneficiary, or (ii) the holder of the requisite percentage of
any SUBI (as set forth in the 1998-B SUBI Supplement), waive any default by the
Servicer in the performance of its obligations hereunder and its consequences
with regard to the Sub-Trust containing those Titling Trust Assets, as the case
may be. Upon any such waiver of a past default, such default shall cease to
exist, and any Event of Servicing Termination arising therefrom shall be deemed
to have been remedied for every purpose of this Servicing Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
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6.02 NO EFFECT ON OTHER PARTIES.
Upon any termination of the rights and powers of the Servicer with
respect to the 1998-B SUBI Sub-Trust from time to time pursuant to Section 6.01
hereof, or upon any appointment of a successor to the Servicer with respect to
the 1998-B SUBI Sub-Trust, all the rights, powers, duties and obligations of the
Titling Trustee, the UTI Beneficiary and the Transferor under this 1998-B SUBI
Servicing Supplement, the 1998-B Securitization Trust Agreement, the 1998-B SUBI
Supplement, or any other Trust Document shall remain unaffected by such
termination or appointment and shall remain in full force and effect thereafter,
except as otherwise expressly provided herein or therein.
ARTICLE VII
MISCELLANEOUS
7.01 TERMINATION OF AGREEMENT.
(a) In connection with any purchase by the Transferor of the Investor
Certificateholders' interest in the corpus of the 1998-B Securitization Trust
pursuant to Section 7.02 of the 1998-B Securitization Trust Agreement, and the
Transferor's then succeeding to all of the interest in the 1998-B SUBI and if
the UTI Beneficiary shall thereafter succeed to such interest in the 1998-B
SUBI, the Servicer, upon the direction of the UTI Beneficiary as provided in
Section 16.05 of the 1998-B SUBI Supplement, shall reallocate all 1998-B
Contracts, 1998-B Leased Vehicles and related 1998-B SUBI Assets to the UTI
Sub-Trust.
(b) Except as provided in this Section, the respective duties and
obligations of the Servicer and the Titling Trustee with respect to the 1998-B
SUBI shall terminate upon the termination of the 1998-B Securitization Trust
Agreement pursuant to Section 7.01 thereof. Upon such a termination, the
Servicer shall pay over to the Titling Trustee or any other Person entitled
thereto all monies held by the Servicer with respect to the 1998-B SUBI
Sub-Trust pursuant to this 1998-B SUBI Servicing Supplement.
7.02 AMENDMENT.
(a) To the extent that any amendment or supplement deals with the
1998-B SUBI Sub-Trust, this 1998-B SUBI Servicing Supplement may be amended from
time to time in a writing signed by the Titling Trustee, on behalf of the
Titling Trust, the Trust Agent and the Servicer, with the prior written consent
of the 1998-B Securitization Trustee, on behalf of the 1998-B Securitization
Trust, which shall be given only in the circumstances contemplated by Section
9.01 of the 1998-B Securitization Trust Agreement.
(b) The Servicer shall provide each Rating Agency that rated the
Investor Certificates prior notice of the content of any proposed amendment to
this 1998-B SUBI Servicing Supplement, whether or not such amendment relates to
the 1998-B SUBI or requires approval of any Rating Agency.
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(c) Any amendment to the Titling Trust Agreement that applies to or
affects the UTI or other SUBI, in addition to the 1998-B SUBI Sub-Trust shall
also be subject to the foregoing provisions of this Section 7.02.
Notwithstanding the foregoing, this Section 7.02 does not modify or supersede
any provision in the Titling Trust Agreement. Without limiting the foregoing,
any amendment of the Titling Trust Agreement or any other SUBI Servicing
Agreement that neither applies to nor affects the 1998-B SUBI shall not require
the consent of the 1998-B Securitization Trustee or the Beneficiaries of the
1998-B SUBI Certificate or the 1998-B SUBI Insurance Certificate.
7.03 GOVERNING LAW.
This 1998-B SUBI Servicing Supplement shall in all respects be
governed by and construed in accordance with the internal laws of the State of
Delaware, without reference to its conflicts of laws provisions, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws except for the rights, privileges, duties, liabilities
and immunities of the 1998-B Securitization Trustee which shall be governed by
and construed in accordance with the internal laws of the State of New York
without regard to any otherwise applicable principles of conflicts of laws.
7.04 NOTICES.
All demands, notices and communications hereunder shall be in
writing and shall be delivered or mailed by registered or certified
first-class United States mail, postage prepaid, hand delivery, any prepaid
courier service, or by telecopier, and addressed in each case as follows: (a)
if to TMCC or the Servicer (if the same as TMCC), at Toyota Motor Credit
Corporation, 00000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Treasury Department--Corporate Treasury Manager (telecopier no.
(000) 000-0000); (b) if to the Titling Trustee, at 000 Xxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (Telecopier No. (000) 000-0000), with a
copy to the principal Trust Agent designated by the Titling Trustee and (c)
if to the 1998-B Securitization Trustee, at [____________________]. The
Servicer, the Titling Trustee or the 1998-B Securitization Trustee may change
its address for notices hereunder by giving notice of such change to the
other such Persons. All notices and demands (x) shall be deemed to have been
given upon delivery or tender of delivery thereof to any officer or other
duly authorized recipient of the Person entitled to receive such notices and
demands at the address of such Person for notices hereunder, (y) if given by
the Titling Trustee shall be deemed to have been given by all of the
beneficiaries of the Titling Trust and (z) if given by the 1998-B
Securitization Trustee shall be deemed to be given by the Investor
Certificateholders.
7.05 SEVERABILITY.
If one or more of the provisions of this 1998-B SUBI Servicing
Supplement shall be for any reason whatever held invalid or unenforceable, such
provisions shall be deemed severable from the remaining covenants, agreements
and provisions of this 1998-B SUBI Servicing Supplement, and such invalidity or
unenforceability shall in no way affect the validity
29
or enforceability of such remaining covenants, agreements and provisions, or
the rights of any parties hereto. To the extent permitted by law, the
parties hereto waive any provision of law that renders any provision of this
1998-B SUBI Servicing Supplement invalid or unenforceable in any respect.
7.06 NO PETITION.
The Servicer 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, the Transferor, the Titling
Trustee or the Titling Trust any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal or
state bankruptcy or similar law. This Section shall survive the termination of
this Agreement or the resignation or removal of the Titling Trustee under this
Agreement.
7.07 INSPECTION AND AUDIT RIGHTS.
The Servicer agrees that, on reasonable prior notice, it will permit
any representative or designee of the Titling Trustee, on behalf of the Titling
Trust, during the normal business hours of the Servicer, to examine all books of
account, records, reports and other papers of the Servicer relating to the
Titling Trust Assets, to make copies and extracts therefrom, to cause such books
to be audited by Independent Accountants selected by the Titling Trustee, and to
discuss the affairs, finances and accounts relating to the Titling Trust Assets
with its officers, employees and Independent Accountants (and by this provision
the Servicer hereby authorizes such Independent Accountants to discuss with such
representatives such affairs, finances and accounts), all at such reasonable
times and as often as may be reasonably requested. Such rights shall include,
but shall not be limited to, any off-site storage facilities at which any data
(including, without limitation, computerized records), together with all
operating software and appropriate documentation, may be held. The Titling
Trustee agrees to keep confidential all the confidential information of the
Servicer acquired during any such examination as if such information were its
own confidential information, except to the extent necessary for the purposes of
this 1998-B SUBI Servicing Supplement. The expenses incident to the exercise by
the Titling Trustee of any right under this Section shall be reimbursable by the
Servicer.
7.08 ARTICLE AND SECTION HEADINGS.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
7.09 EXECUTION IN COUNTERPARTS.
This 1998-B SUBI Servicing Supplement may be executed in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original, but all of which counterparts shall together constitute but one and
the same instrument.
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7.10 RIGHTS CUMULATIVE.
All rights and remedies from time to time conferred upon or reserved
to the Titling Trustee, on behalf of the Titling Trust, the Servicer or the
1998-B Securitization Trustee or to any or all of the foregoing are cumulative,
and none is intended to be exclusive of another. No delay or omission in
insisting upon the strict observance or performance of any provision of this
1998-B SUBI Servicing Supplement, or in exercising any right or remedy, shall be
construed as a waiver or relinquishment of such provision, nor shall it impair
such right or remedy. Every right and remedy may be exercised from time to time
and as often as deemed expedient.
7.11 FURTHER ASSURANCES.
Each party will do such acts, and execute and deliver to any other
party such additional documents or instruments, as may be reasonably requested
in order to effect the purposes of this 1998-B SUBI Servicing Supplement and to
better assure and confirm unto the requesting party its rights, powers and
remedies hereunder.
7.12 THIRD-PARTY BENEFICIARIES.
This 1998-B SUBI Servicing Supplement, insofar as it relates to the
1998-B SUBI Sub-Trust, will inure to the benefit of and be binding upon the
parties hereto, their respective successors and permitted assigns, the 1998-B
Securitization Trustee, the Titling Trustee (on behalf of the Titling Trust),
and each of the holders of any legal or beneficial interest in the 1998-B SUBI
Certificates (including without limitation the 1998-B Securitization Trustee and
the Certificateholders), who shall be considered to be third-party beneficiaries
hereof. Except as otherwise provided in this 1998-B SUBI Servicing Supplement,
no other Person will have any right or obligation hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers duly authorized as of the day and
year first above written.
TOYOTA MOTOR CREDIT CORPORATION,
as Servicer
By:
-------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and General
Manager
TOYOTA LEASE TRUST
By: TMTT, INC.,
as Titling Trustee
By:
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Assistant Secretary
U.S. BANK NATIONAL ASSOCIATION,
as Trust Agent
By:
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Acknowledged and Agreed:
TOYOTA AUTO LEASE TRUST 1998-B
By: [_____________________],
as 1998-B Securitization Trustee
By:
----------------------------------
Name:
Title:
EXHIBIT A
SCHEDULE OF 1998-B CONTRACTS AND
1998-B LEASED VEHICLES AS OF THE INITIAL CUTOFF DATE
[Omitted. Copies on file with the Servicer, the Titling Trustee and the
1998-B Securitization Trustee.]
A-1
EXHIBIT B
FORM OF SERVICER'S CERTIFICATE
B-1
EXHIBIT C
FORM OF POWER OF ATTORNEY
C-1
SCHEDULE I
LIST OF BRANCH OFFICES
I-1
