1998-C SUBI CERTIFICATE PURCHASE AND SALE AGREEMENT
THIS 1998-C SUBI CERTIFICATE PURCHASE AND SALE AGREEMENT (the "Agreement")
is dated as of -, 1998, by and between TOYOTA MOTOR CREDIT CORPORATION, a
California corporation ("TMCC"), and TOYOTA LEASING, INC., a California
corporation ("TLI").
A. TMCC, the Titling Trustee and, for certain limited purposes set forth
therein, -, 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 1998-C Securitization Trustee, the Titling Trustee and the
Trust Agent are entering into that certain 1998-C 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 TMCC two SUBI Certificates collectively representing a
100% beneficial interest in the 1998-C SUBI and the 1998-C SUBI Assets (the
1998-C SUBI Certificate and the 1998-C SUBI Insurance Certificate, as defined in
the 1998-C SUBI Supplement), whose beneficiaries generally will be entitled to
the net cash flow arising from, but only from, the related 1998-C SUBI Assets,
all as set forth in the Titling Trust Agreement and the 1998-C SUBI Supplement.
C. TMCC and TLI desire to enter into this Agreement to provide for the
sale by TMCC to TLI, without recourse, of all of TMCC's right, title and
interest in and to the 1998-C SUBI, the 1998-C SUBI Certificate and the 1998-C
SUBI Insurance Certificate.
D. The parties hereto desire that -, as securities intermediary (the
"SUBI Securities Intermediary"), credit the transfer of the 1998-C SUBI
Certificate and the 1998-C SUBI Insurance Certificate from the TMCC SUBI Account
to the TLI SUBI Account.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS.
For all purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the Annex
of Definitions attached to the Titling Trust Agreement or the Annex of
Supplemental Definitions attached to the 1998-C SUBI Supplement;
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provided, however, that in the event of an inconsistency or conflict between a
definition in the Annex of Definitions or the Annex of Supplemental Definitions,
the definition in the Annex of Supplemental Definitions shall control. In the
event of any conflict between a definition set forth herein and that set forth
in the Annex of Definitions or the Annex of Supplemental Definitions, that set
forth herein shall prevail. All terms used in this agreement include, as
appropriate, all genders and the plural as well as the singular. All references
to words such as "herein", "hereof" and the like shall refer to this Agreement
as a whole and not to any particular article or section within this Agreement.
All references such as "includes" and all variations thereon shall mean
"includes without limitation" and references to "or" shall mean "and/or".
SECTION 1.02. ARTICLE AND SECTION REFERENCES.
Except as otherwise specified herein, all article and section references
shall be to Articles and Sections in this Agreement.
ARTICLE II
PURCHASE AND SALE OF 1998-C SUBI
SECTION 2.01. SALE OF 1998-C SUBI.
(a)(l) In consideration of TLI's delivery to, or upon the order of, TMCC
of (i) cash in the amount of $ - representing the cash proceeds from the sale of
the Investor Certificates net of certain expenses, and (ii) $ - evidenced by a
subordinated non-recourse promissory note, TMCC does hereby absolutely sell,
assign and otherwise convey to TLI, without recourse, and TLI does hereby
purchase and acquire, as of the date set forth above:
1. all right, title and interest in and to the 1998-C SUBI evidenced
by the 1998-C SUBI Certificate and all monies due thereon and paid thereon or in
respect thereof;
2. the right to realize upon any property that underlies or may be
deemed to secure the 1998-C SUBI to the extent of amounts payable under the
1998-C SUBI Certificate; and
3. all proceeds of the foregoing.
(a)(2) In consideration of TLI's delivery to, or upon the order of, TMCC of
a subordinated non-recourse promissory note, the payment terms of which limit
amounts payable to the amounts due as policy premiums for the Residual Value
Insurance Policies and which is payable only from certain amounts paid as claims
or as premium refunds under the Residual Value Insurance Policies. TMCC does
hereby absolutely sell, assign and otherwise convey to TLI, without recourse,
and TLI does hereby purchase and acquire, as of the date set forth above:
1. all right, title and interest in and to the 1998-C SUBI evidenced
by the 1998-C SUBI Insurance Certificate and all monies due thereon and paid
thereon or in respect thereof;
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2. the right to realize upon any property that underlies or may be
deemed to secure the 1998-C SUBI to the extent of amounts, payable under the
1998-C SUBI Insurance Certificate; and
3. all proceeds of the foregoing.
The parties hereto agree that such note represents the value of the SUBI
Certificates.
(b) It is the express and specific intent of the parties that the transfer
of the 1998-C SUBI, the 1998-C SUBI Certificate and the 1998-C SUBI Insurance
Certificate from TMCC to TLI, as provided for in this Agreement, is and shall be
construed for all purposes as a true, complete and absolute sale of the 1998-C
SUBI, the 1998-C SUBI Certificate and the 1998-C SUBI Insurance Certificate and
all of the related property and rights as described in subsection (a) above.
The parties hereto represent and agree that the 1998-C SUBI, the 1998-C SUBI
Certificate and the 1998-C SUBI Insurance Certificate are hereby transferred
from TMCC to TLI for fair consideration and without the intent to hinder, delay
or defraud creditors of TMCC or TLI.
(c) In connection with the foregoing conveyance, TMCC agrees to record and
file, at its own expense, a financing statement with respect to the 1998-C SUBI
and 1998-C SUBI Certificate and all of the related property and rights specified
in subsection (a) above necessary (i) to provide third parties with notice of
the conveyance hereunder and (ii) to perfect the sale of the 1998-C SUBI, the
1998-C SUBI Certificate, the 1998-C SUBI Insurance Certificate, and the proceeds
thereof to TLI, (as well as to file any continuation statements required by
applicable state law to maintain the perfection afforded by the filing of such
financing statement), and to deliver a file-stamped copy of each such financing
statement (or continuation statement) or other evidence of such filings (which
may, for purposes of this Section, consist of telephone confirmation of such
filing with the file stamped copy of each such filing to be provided to TLI in
due course), as soon as is practicable after receipt by TMCC thereof.
The parties hereto intend that the conveyance hereunder be a sale. In the
event that the conveyance hereunder is not for any reason considered a sale, the
conveyance described above and all filings described in the foregoing paragraph
shall give TLI a first priority perfected security interest in, to and under the
property and rights conveyed hereunder and all proceeds of any of the foregoing
and that this Agreement constitute a security agreement under applicable law.
SECTION 2.02. ACCEPTANCE BY TLI.
TLI agrees to comply with all covenants and restrictions applicable to an
owner of the 1998-C SUBI, 1998-C SUBI Certificate, and the 1998-C SUBI Insurance
Certificate, whether set forth therein, in the Titling Trust Agreement, the
1998-C SUBI Supplement or otherwise, and assumes all obligations and
liabilities, if any associated therewith.
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SECTION 2.03. TRANSFER OF THE CERTIFICATES.
In connection with the transfer of the 1998-C SUBI Certificate and the
1998-C SUBI Insurance Certificate, TLI has established a "securities account" as
such term is defined in Section 8-501 (a) of the UCC with the SUBI Securities
Intermediary (the "TLI SUBI Account"). TLI shall accept the transfer of the
1998-C SUBI Certificate and the 1998-C SUBI Insurance Certificate to the TLI
SUBI Account. TMCC hereby agrees to instruct the SUBI Securities Intermediary
to credit the transfer of the SUBI Certificate and the 1998-C SUBI Insurance
Certificate from the TMCC SUBI Account to the TLI SUBI Account.
ARTICLE III
MISCELLANEOUS
Section 3.01. AMENDMENT.
This Agreement may be amended from time to time in a writing signed by the
parties hereto, with the prior written consent of the 1998-C Securitization
Trustee, which shall be given only in the circumstances contemplated by Section
9.01 of the 1998-C Securitization Trust Agreement.
SECTION 3.02. GOVERNING LAW.
This Agreement shall be created under and governed by and construed under
the internal laws of the State of California, without regard to any otherwise
applicable principles of conflict of laws and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
SECTION 3.03. SEVERABILITY.
If one or more of the covenants, agreements, provisions or terms of this
Agreement shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement, and shall in no
way affect the validity or enforceability of the other provisions of this
Agreement, or the rights of any parties hereto. To the extent permitted by law,
the parties hereto waive any provision of law that renders any provision of this
Agreement invalid or unenforceable in any respect.
SECTION 3.04. BINDING EFFECT.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and permitted assigns of the parties
hereto.
SECTION 3.05. ARTICLE AND SECTION HEADINGS.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
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SECTION 3.06. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
so executed and delivered shall be deemed to be an original, but all of which
counterparts shall together constitute but one and the same instrument.
SECTION 3.07. FURTHER ASSURANCES.
Each party will do such acts, and execute and deliver to any other party
such additional documents or instruments as may be reasonably requested in order
to effect the purposes of this Agreement and to better assure and confirm unto
the requesting party its rights, powers and remedies hereunder.
SECTION 3.08. THIRD-PARTY BENEFICIARIES.
This Agreement will inure to the benefit of and be binding upon each
subsequent holder of any legal or beneficial interest in the 1998-C SUBI
Certificate and/or the 1998-C SUBI Insurance Certificate (including without
limitation the 1998-C Securitization Trust and the holders of any securities
issued thereby), who shall be considered to be third-party beneficiaries hereof.
Except as otherwise provided in this Agreement, no other Person will have any
right or obligation hereunder.
SECTION 3.09. NO PETITION.
TLI, as transferee of the 1998-C SUBI Certificate and the 1998-C SUBI
Insurance Certificate covenants and agrees that prior to the date which is one
year and one day after the date upon which all obligations under each
Securitized Financing has been paid in full, it will not institute against, or
join any other Person in instituting against, TMCC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceedings under any federal or state bankruptcy or similar law. This Section
shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers duly authorized as of the day and
year first above written.
TOYOTA MOTOR CREDIT CORPORATION
By: ______________________________________
Name:
Title:
TOYOTA LEASING, INC.
By: ______________________________________
Name:
Title:
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