EXHIBIT 4.1
_________________________________________________________________
TOYOTA LEASING, INC.
AND
FIRST BANK NATIONAL ASSOCIATION, AS TRUSTEE
TOYOTA AUTO LEASE TRUST 1997-A
AUTOMOBILE LEASE ASSET-BACKED CERTIFICATES
SECURITIZATION TRUST AGREEMENT
DATED AS OF SEPTEMBER 1, 1997
_________________________________________________________________
TABLE OF CONTENTS
Page
RECITALS.................................................................... 1
ARTICLE ONE
DEFINITIONS................................ 2
Section 1.01. Definitions............................................. 2
Section 1.02. Article and Section References.......................... 2
ARTICLE TWO
CREATION OF TRUST.......................... 3
Section 2.01. Creation of Trust........................................ 3
Section 2.02. Conveyance of 1997-A SUBI Interest....................... 3
Section 2.03. Acceptance by Trustee.................................... 4
ARTICLE THREE
DISTRIBUTIONS; RESERVE FUND;
STATEMENTS TO CERTIFICATEHOLDERS................. 4
Section 3.01. Distributions............................................ 4
Section 3.02. Reserve Fund............................................. 10
Section 3.03. Statements to Certificateholders......................... 11
ARTICLE FOUR
THE CERTIFICATES........................... 14
Section 4.01. The Certificates......................................... 14
Section 4.02. Authentication and Delivery of
Certificates....................................................... 15
Section 4.03. Registration of Transfer and Exchange of
Certificates............................................. 16
Section 4.04. Mutilated, Destroyed, Lost or Stolen
Certificates............................................. 19
Section 4.05. Persons Deemed Owners.................................... 19
Section 4.06. Access to List of Certificateholders' Names and
Addresses................................................ 19
Section 4.07. Maintenance of Office or Agency.......................... 20
Section 4.08. Temporary Certificates................................... 20
Section 4.09. Book-Entry Certificates.................................. 21
Section 4.10. Notices to Clearing Agency............................... 22
Section 4.11. Definitive Certificates.................................. 23
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TABLE OF CONTENTS
Page
Section 4.12. Tax Treatment............................................ 24
ARTICLE FIVE
THE TRANSFEROR............................. 25
Section 5.01. Representations of Transferor............................ 25
Section 5.02. Liability of Transferor; Indemnities..................... 27
Section 5.03. Merger or Consolidation of, or
Assumption of the Obligations of,
Transferor; Certain Limitations.......................... 27
Section 5.04. Limitation on Liability of Transferor
and Others......................................................... 30
Section 5.05. Transferor May Own Investor
Certificates....................................................... 30
Section 5.06. No Transfer.............................................. 30
Section 5.07. Tax Matters Partner...................................... 31
ARTICLE SIX
THE SECURITIZATION TRUSTEE................. 31
Section 6.01. Duties of Trustee........................................ 31
Section 6.02. Certain Matters Affecting the
Securitization Trustee............................................. 33
Section 6.03. Trustee Not Liable for Certificates or
Contracts................................................ 34
Section 6.04. Trustee May Own Certificates............................. 36
Section 6.05. Trustee's Fees and Expenses.............................. 36
Section 6.06. Eligibility Requirements for Trustee..................... 36
Section 6.07. Resignation or Removal of Trustee........................ 37
Section 6.08. Successor Trustee........................................ 37
Section 6.09. Merger or Consolidation of Trustee....................... 38
Section 6.10. Appointment of Co-Trustee or Separate
Trustee.................................................. 39
Section 6.11. Representations and Warranties of
Trustee............................................................ 40
Section 6.12. Tax Returns.............................................. 41
Section 6.13. Trustee May Enforce Claims Without
Possession of Certificates............................... 41
Section 6.14. Suit for Enforcement..................................... 42
Section 6.15. Rights of Certificateholders to Direct
Trustee.................................................. 42
Section 6.16. No Petition.............................................. 43
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Page
ARTICLE SEVEN
TERMINATION................................ 43
Section 7.01. Termination of the 1997-A Securitization
Trust................................................... 43
Section 7.02. Optional Purchase of 1997-A SUBI
Interest................................................ 45
ARTICLE EIGHT
EARLY AMORTIZATION EVENTS............................... 46
Section 8.01. Early Amortization Events................................ 46
Section 8.02. Additional Rights Upon the Occurrence of
Certain Events........................................... 48
ARTICLE NINE
MISCELLANEOUS PROVISIONS................................ 49
Section 9.01. Amendment............................................... 49
Section 9.02. Protection of Title to Trust............................ 51
Section 9.03. Limitation on Rights of
Certificateholders...................................... 52
Section 9.04. Governing Law........................................... 54
Section 9.05. Notices................................................. 54
Section 9.06. Severability of Provisions;
Counterparts............................................ 54
Section 9.07. Assignment.............................................. 55
Section 9.08. Certificates Nonassessable and Fully
Paid.................................................... 55
ARTICLE TEN
AGENT FOR SERVICE.......................... 55
Section 10.01. Agent for Service of Transferor......................... 55
Section 10.02. Agent of Trustee........................................ 55
EXHIBITS:
Exhibit A-1 - Form of Class A-1 Certificate ..............................A-1
Exhibit A-2 - Form of Class A-2 Certificate ..............................A-2
Exhibit A-3 - Form of Class A-3 Certificate ..............................A-3
Exhibit A-4 - ...........................................................A-4
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Page
Exhibit B - Form of Class B Certificate ................................B-1
Exhibit C - Form of Transferor Certificate .............................C-1
Exhibit D-1 - Form of Non-Rule 144-A Representation
Letter....................................................D-1-1
Exhibit D-2 - Form of Rule 144-A Representation
Letter....................................................D-2-1
Exhibit E - Annex of Definitions........................................E-1
Exhibit F - Annex of Supplemental Definitions...........................F-1
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SECURITIZATION TRUST AGREEMENT
THIS SECURITIZATION TRUST AGREEMENT, dated as of September 1, 1997, is
made with respect to the formation of the TOYOTA AUTO LEASE TRUST 1997-A
(the "1997-A SECURITIZATION TRUST"), between TOYOTA LEASING, INC. a Delaware
corporation ("TLI" or, in its capacity as transferor hereunder, the
"Transferor"), and FIRST BANK NATIONAL ASSOCIATION, as trustee (the
"SECURITIZATION TRUSTEE").
RECITALS
A. The Toyota Lease Trust (the "Titling Trust") is governed by the
Amended and Restated Trust and Servicing Agreement dated as of October 1,
1996 (the "Titling Trust Agreement") among Toyota Motor Credit Corporation, a
California corporation, as grantor, initial beneficiary and servicer ("TMCC"
and in its capacity as servicer, the "Servicer"), TMTT, Inc. (the "TITLING
TRUSTEE"), a Delaware corporation, as trustee, and, for the limited purposes
stated therein, First Bank National Association ("FIRST BANK"), a national
banking association. The Titling Trust acquires and holds title to various
automobiles, light-duty trucks, related lease contracts and certain other
assets in accordance with the terms of the Titling Trust Agreement.
Capitalized terms used and not defined in these Recitals have the meanings
given in Article I below.
B. Concurrently herewith, TMCC, the Titling Trustee and First Bank have
entered into the 1997-A SUBI Supplement to the Titling Agreement dated as of
September 1, 1997 (the "1997-A SUBI Supplement") pursuant to which the
Titling Trust, at the direction of TMCC, will create and issue to TLI a
special unit of beneficial interest in the Titling Trust (the "1997-A SUBI"),
whose beneficiaries generally will be entitled to the net cash flow arising
from the related SUBI Portfolio (such SUBI Portfolio, the "1997-A SUBI
Portfolio"). The 1997-A SUBI will be evidenced by one SUBI Certificate
representing the entire beneficial interest in the 1997-A SUBI (the "1997-A
SUBI Certificate").
C. Concurrently herewith, the Titling Trustee (on behalf of the Titling
Trust) and the Servicer also have entered into a Supplement 1997-A to
Servicing Agreement dated as of September 1, 1997 (the "1997-A SUBI Servicing
Supplement"), pursuant to which the terms of the Titling Trust Agreement will
be supplemented insofar as they apply to the 1997-A SUBI Portfolio, providing
for further servicing obligations that will benefit the holders of the 1997-A
SUBI Certificate.
D. Concurrently herewith, TMCC and the Transferor have entered into the
1997-A SUBI Certificate Purchase and Sale Agreement dated as of September 1,
1997 (the "SUBI Certificate Agreement"), pursuant to which TMCC sold to the
Transferor, without recourse, all of TMCC's right, title and interest in and
to the 1997-A SUBI and the 1997-A SUBI Certificate, all monies due thereon
and the right to realize on any property subject to the 1997-A SUBI, and all
proceeds thereof, all in consideration of the cash payment to TMCC of an
amount equal to the Aggregate Net Investment Value of the 1997-A SUBI
Portfolio as of the 1997-A Cutoff Date.
E. The parties desire to enter into this Securitization Trust Agreement
to create the 1997-A Securitization Trust, to provide for the issuance by the
1997-A Securitization Trust of certain Certificates and to provide for the
exchange of those Certificates for the 1997-A SUBI Certificate in connection
with a Securitized Financing by the Transferor.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS.
For all purposes of this Securitization Trust Agreement, except as
otherwise expressly provided or unless the context otherwise requires, (a)
unless otherwise defined herein, all capitalized terms used herein shall have
the meanings attributed
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to them in the Annex of Definitions or the Annex of Supplemental Definitions
attached hereto as Exhibit E and Exhibit F, respectively, (b) defined terms
include (i) all genders and (ii) the plural as well as the singular, (c) all
references to words such as "herein", "hereof" and the like shall refer to
this Securitization Trust Agreement as a whole and not to any particular
article or section within this Securitization Trust Agreement, (d) the term
"include" and all variations thereon shall mean "include without limitation",
and (e) the term "or" shall include "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 Securitization Trust Agreement.
ARTICLE TWO
CREATION OF TRUST
SECTION 2.0
1. CREATION OF TRUST.
Upon the execution of this Securitization Trust Agreement by the parties
hereto, there is hereby created the Toyota Auto Lease Trust 1997-A.
SECTION 2.02. CONVEYANCE OF 1997-A SUBI INTEREST.
In consideration of the Securitization Trustee's delivery to, or upon the
order of, the Transferor of executed and authenticated Investor Certificates, in
authorized denominations, in an aggregate amount equal to the Initial
Certificate Balance, and of the executed and authenticated Transferor
Certificate, the Transferor does hereby transfer, assign and otherwise convey to
the Securitization Trustee, in trust for the benefit of the Certificateholders,
to the full extent of the Transferor's interest therein, without recourse
(subject to the Transferor's obligations herein):
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(i) all right, title and interest of the Transferor in and to the
1997-A SUBI and the 1997-A SUBI Certificate evidencing the 1997-A SUBI and
all monies due thereon and paid thereon or in respect thereof;
(ii) the right to realize upon any property that may be deemed to
secure the 1997-A SUBI Interest;
(iii) all rights accruing to the holder of the 1997-A SUBI Interest
under the Titling Trust Agreement, the 1997-A SUBI Supplement and the
1997-A SUBI Servicing Supplement; and
(iv) all proceeds of the foregoing;
PROVIDED that all monies and payments due or payable under any Residual Value
Insurance Policy applicable to the 1997-A Leased Vehicles and the right to
receive such payments and monies are retained by the Transferor and are not
hereby transferred, assigned or otherwise conveyed to the Securitization
Trustee.
The Transferor also does hereby grant to the Securitization Trustee a
security interest in all of the foregoing, and the Securitization Trustee
shall have all the rights, powers and privileges of a secured party under the
UCC.
SECTION 2.03. ACCEPTANCE BY TRUSTEE.
The Securitization Trustee does hereby accept all consideration conveyed
by the Transferor pursuant to Section 2.02 and declares that the
Securitization Trustee shall hold such consideration in trust as herein set
forth for the benefit of the Certificateholders, subject to the terms and
provisions of this Securitization Trust Agreement.
ARTICLE THREE
DISTRIBUTIONS; RESERVE FUND;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 3.01. DISTRIBUTIONS.
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(a) On each Determination Date, pursuant to Section 4.02(g) of the
1997-A SUBI Servicing Supplement, the Servicer shall calculate the amounts to
be distributed to the holder of the 1997-A SUBI Certificate, the Class A-1
Distributable Amount, the Class A-2 Distributable Amount, the Class A-3
Distributable Amount, the Class A-4 Distributable Amount, the Class B
Distributable Amount, the Transferor Distributable Amount, and all other
distributions to be made on the related Distribution Date.
(b) The rights of the Class B Certificateholders to receive
distributions of Interest Collections allocable to the 1997-A SUBI Interest
in respect of the Class B Certificates shall be and hereby are subordinated
to the rights of the Class A-1 Certificateholders, the Class A-2
Certificateholders, the Class A-3 Certificateholders and the Class A-4
Certificateholders to receive distributions of Interest Collections allocable
to the 1997-A SUBI Interest to the extent provided in this subsection.
On each Monthly Allocation Date, based on the monthly servicing report
prepared by the Servicer, the Securitization Trustee shall distribute from
the 1997-A SUBI Collection Account the product of (i) the Investor Percentage
with respect to Interest Collections, multiplied by (ii) the Interest
Collections in 1997-A SUBI Collection Account for the related Collection
Period, together with any Transferor Amounts and the Reserve Fund Withdrawal
Amount, if any, for such Monthly Allocation Date, and any amount of Principal
Collections allocable to the Class B Certificates but applied pursuant to
subsection (e)(iii) below, in the following amounts and in the following
order of priority to the following accounts and Persons:
(i) in the event of an Early Amortization Event involving an
Insolvency Event, as a result of which the Securitization Trustee has
elected or has been instructed to sell the property of the 1997-A
Securitization Trust pursuant to Section 8.02(a), to the Securitization
Trustee, the Investor Percentage of Capped Securitization Trust
Administrative Expenses;
(ii) to the Certificate Account until there has been deposited therein
pursuant to this clause (ii), the Class
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A-1 Interest Distributable Amount for the next Distribution Date
together with any unpaid Class A-1 Interest Carryover Shortfall, the
Class A-2 Interest Distributable Amount for such Distribution Date
together with any Class A-2 Interest Carryover Shortfall, the Class A-3
Interest Distributable Amount for such Distribution Date together with
any Class A-3 Interest Carryover Shortfall, and the Class A-4 Interest
Distributable Amount for such Distribution Date together with any Class
A-4 Interest Carryover Shortfall;
(iii) to the Certificate Account until there has been deposited
therein pursuant to this clause (iii), the Class B Interest Distributable
Amount for such Distribution Date, together with any unpaid Class B
Interest Carryover Shortfall;
(iv) to the Servicer, the Investor Percentage of the Capped
Contingent and Excess Liability Premium in respect of the related
Collection Period;
(v) to the Titling Trustee, the Investor Percentage of Capped
Titling Trust Administration Expenses;
(vi) in circumstances other than those set forth in clause (i), the
Investor Percentage of Capped Securitization Trust Administrative Expenses
for the preceding Collection Period, to the Securitization Trustee;
(vii) to the Servicer, the Investor Percentage of (a) the Servicing
Fee and (b) any unpaid Servicing Fee in respect of any prior Collection
Period;
(viii) to the Certificate Account until there has been deposited
therein pursuant to this clause (viii), the Class A-1 Loss Amount, the
Class A-2 Loss Amount, the Class A-3 Loss Amount and the Class A-4 Loss
Amount;
(ix) to the Certificate Account until there has been deposited therein
pursuant to this clause (ix), the aggregate amounts of the Class A-1
Certificate Principal Loss Amounts, Class A-2 Certificate Principal Loss
Amounts,
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Class A-3 Certificate Principal Loss Amounts and Class A-4 Certificate
Principal Loss Amounts, if any, for previous Distribution Dates that
have not been previously deposited in the Certificate Account;
(x) to the Certificate Account until there has been deposited therein
pursuant to this clause (x), the Class A-1 Certificate Principal Loss
Interest Amount, the Class A-2 Certificate Principal Loss Interest Amount,
the Class A-3 Certificate Principal Loss Interest Amount and the Class A-4
Certificate Principal Loss Interest Amount, if any, for such Distribution
Date;
(xi) to the Certificate Account until there has been deposited therein
pursuant to this clause (xi), the Class B Loss Amount;
(xii) to the Certificate Account until there has been deposited
therein pursuant to this clause (xii), the aggregate amount of the Class B
Certificate Principal Loss Amounts and Class B Certificate Principal
Carryover Shortfall, if any, for previous Distribution Dates that has not
been previously deposited in the Certificate Account pursuant to this
clause (xii);
(xiii) to the Certificate Account until there has been deposited
therein pursuant to this clause (xiii), the Class B Certificate Principal
Loss Interest Amount and the Class B Certificate Principal Carryover
Shortfall Interest Amount, if any, for such Distribution Date;
(xiv) the Investor Percentage of Uncapped Administrative Expenses, to
the Titling Trustee or the Securitization Trustee, as applicable; and
(xv) the balance, if any, shall constitute Excess Collections and
shall be applied as set forth in subsection (c) below.
Notwithstanding the foregoing, on any Distribution Date related to a Collection
Period in the Revolving Period, the amounts set
7
forth in clauses (viii) through (xiii) above shall not be deposited in the
Certificate Account, but shall be treated as Principal Collections for
purposes of Section 3.02 of the 1997-A SUBI Servicing Supplement.
On each Semiannual Distribution Date, or if a Monthly Payment Event or an
Early Amortization Event has occurred, then on each Monthly Distribution
Date, the Securitization Trustee shall distribute to the holders of Investor
Certificates of each Class the amounts deposited in the Certificate Account
for such Class pursuant to the following clauses of this Section 3.01(b) and
in the following order of priority: (ii), (iii), (viii), (ix), (x), (xi),
(xii) and (xiii); provided that if the amount deposited pursuant to any such
clause in the Certificate Account is distributable to Class A
Certificateholders and the amount available pursuant to such clause is less
than the full amount due to be distributed pursuant to such clause, then such
available amount shall be distributed to the Class A-1 Certificateholders,
the Class A-2 Certificateholders, the Class A-3 Certificateholders and the
Class A-4 Certificateholders PRO RATA on the basis of the full amounts due
them pursuant to such clause.
(c) On each Monthly Allocation Date, based on the Servicer's
Certificate prepared by the Servicer, the Securitization Trustee shall
distribute any Excess Collections in the following amounts and in the following
order of priority:
(i) into the Reserve Fund until the amount on deposit therein equals
the Specified Reserve Fund Balance; and
(ii)(A) if the Monthly Allocation Date relates to a Collection Period
in the Revolving Period, any remainder to the Transferor, and (B) if the
Monthly Allocation Date relates to a Collection Period in the Amortization
Period, any remainder up to but not exceeding the product of one-twelfth of
[.25%] and the Aggregate Net Investment Value as of the last day of the
related Collection Period (the "Accelerated Principal Distribution Amount")
to the Certificate Account as additional principal. The balance of any
remainder will then be paid to the Transferor.
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(d)(i) On each Monthly Allocation Date beginning with the Monthly
Allocation Date related to the Collection Period in which the Amortization
Period commences and ending on the Monthly Allocation Date that is the
Distribution Date on which the Class B Certificates will be paid in full, based
on the Servicer's Certificate prepared by the Servicer, the Securitization
Trustee shall withdraw from the 1997-A SUBI Collection Account and deposit in
the Certificate Account an amount equal to the Investor Percentage of all
Principal Collections collected or received in respect of the related Collection
Period allocable to the 1997-A SUBI Interest.
(ii) If a Monthly Payment Event has not occurred, the Securitization
Trustee, based on the Servicer's Certificate prepared by the Servicer, shall
distribute to holders of the Certificates of each Class on the Targeted Maturity
Date for such Class the lesser of (x) the entire Certificate Principal Balance
of such Class of Investor Certificates and (y) the sum of the amount of
Principal Collections and the Accelerated Principal Distribution Amount on
deposit in the Certificate Account and the Maturity Advance actually made by the
Servicer in respect of such Class of Investor Certificates pursuant to Section
____ of the 1997-A SUBI Servicing Supplement.
(iii) If on any Targeted Maturity Date the entire Certificate Principal
Balance of the related Class of Investor Certificates is not distributed, then
the Securitization Trustee shall, based on the Servicer's Certificate,
distribute to the holders of such Class of Investor Certificates on each
following Monthly Distribution Date, until the Certificate Principal Balance of
such Class of Investor Certificates has been reduced to zero, the lesser of (x)
the outstanding Certificate Principal Balance of such Class of Investor
Certificates and (y) the amount of Principal Collections and the Accelerated
Principal Distribution Amount on deposit in the Certificate Account on such
Monthly Distribution Date.
(iv) If an Early Amortization Event or a Monthly Payment Event occurs in
any month, then on the Monthly Distribution Date in the next succeeding month
the Securitization Trustee shall, based on the Servicer's Certificate for such
Monthly Distribution
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Date, distribute the sum of the Principal Collections and the Accelerated
Principal Distribution Amount in the following order of priority:
(1) to the Class A-1 Certificateholders until the Class A-1
Certificate Principal Balance is reduced to zero;
(2) to the Class A-2 Certificateholders until the Class A-2
Certificate Principal Balance is reduced to zero;
(3) to the Class A-3 Certificateholders until the Class A-3
Certificate Principal Balance is reduced to zero;
(4) to the Class A-4 Certificateholders until the Class A-4
Certificate Principal Balance is reduced to zero; and
(5) to the Class B Certificateholders until the Class B Certificate
Principal Balance is reduced to zero.
(e) On each Monthly Allocation Date for which there is a Required
Amount, based on the Servicer's Certificate prepared by the Servicer, the
Securitization Trustee shall apply the following amounts in the following order
to the payment of the unpaid components of the Required Amount (in the order of
clauses (i) through (xiv) of Section 3.01(b)) to the extent necessary to pay
such components:
(i) the Reserve Fund Withdrawal Amount;
(ii) to the extent of any remaining Required Amount, first the
Transferor Interest Distributable Amount and then the Transferor Principal
Distributable Amount; and
(iii) to the extent of any remaining unpaid components of the Required
Amount in clauses (ii), (viii), (ix) and (x) of Section 3.01(b), the
amounts otherwise available for distribution on account of principal to the
Class B Certificateholders pursuant to Section 3.01(d).
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Amounts applied pursuant to the preceding sentence on a Distribution Date in
respect of the Revolving Period pursuant to clauses (viii) through (xiii) of
Section 3.01(b) shall be treated as Principal Collections and applied pursuant
to Section 3.02 of the 1997-A SUBI Servicing Supplement.
On such Distribution Date, after giving effect to all payments required to
be made and all required deposits to or withdrawals from the Reserve Fund,
amounts that otherwise would be payable to the Transferor in respect of the
Transferor Distributable Amount (other than Transferor Amounts) will be
deposited into the Reserve Fund until the amount on deposit therein equals the
Specified Reserve Fund Balance, and any remaining amounts so payable to the
Transferor will be distributed to the Transferor by the Securitization Trustee
as follows: (A) if such Distribution Date relates to a Collection Period during
the Revolving Period, the interest component of such remaining amounts will be
paid in respect of the Transferor Interest Distributable Amount and (B) if such
Distribution Date relates to a Collection Period during the Amortization Period,
(1) the interest component of such remaining amounts will be paid in respect of
the Transferor Interest Distributable Amount and (2) if and to the extent that
the Transferor Interest will be equal to or greater than zero, after all
required distributions have been made on such Distribution Date, the principal
component of such remaining amounts will be paid in respect of the Transferor
Principal Distributable Amount. Any amounts that would otherwise be payable to
the Transferor pursuant to the foregoing as the Transferor Principal
Distributable Amount, but may not be so paid because the Transferor Interest
would be less than or equal to zero, shall instead be distributed to the
Investor Certificateholders pursuant to Section 3.01(d).
(f) Subject to Section 7.01 respecting the final payment upon
retirement of each Certificate, the Securitization Trustee shall on each
Distribution Date distribute to each Certificateholder of any Class of record on
the related Record Date by check mailed to such Certificateholder at the address
of such Holder appearing in the Certificate Register (or, if DTC, its nominee or
a Clearing Agency is the relevant Certificateholder, by wire transfer of
immediately available
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funds or pursuant to other arrangements), the amount to be distributed to
such Certificateholder pursuant to such Holder's Certificates.
(g) Amounts properly received by the Transferor pursuant to this
Securitization Trust Agreement shall be free of any claim of the Securitization
Trust, the Securitization Trustee or the Investor Certificateholders and shall
not be available to the Securitization Trustee or the Securitization Trust for
the purpose of making deposits to the Reserve Fund or making payments to the
Investor Certificateholders, nor shall the Transferor be required to refund any
amount properly received by it.
SECTION 3.02. RESERVE FUND.
(a)(i) The Servicer shall establish and maintain with the
Securitization Trustee a separate trust account to be known as the "Reserve
Fund", which will include the money and other property deposited and held
therein pursuant to Section 3.01(c)(i) and this Section. Funds in the Reserve
Fund shall be property of the Transferor, and the Transferor hereby grants to
the Securitization Trustee for the benefit of the Investor Certificateholders a
security interest in all funds (including Permitted Investments) and the
proceeds thereof. The Reserve Fund shall be an Eligible Account and initially
shall be established with the Securitization Trustee. If for any reason the
Reserve Fund is no longer an Eligible Account, the Securitization Trustee shall
promptly cause the Reserve Fund to be moved to another institution or otherwise
changed so that the Reserve Fund becomes an Eligible Account.
(ii) All amounts held in the Reserve Fund shall, to the extent
permitted by applicable laws, rules and regulations, be invested, as directed by
the Servicer in Permitted Investments. Earnings on investment of funds in the
Reserve Fund shall be paid to the Transferor on each Distribution Date, and
losses and any investment expenses shall be charged against the funds on deposit
therein.
(b) On or prior to the Closing Date, the Transferor shall deposit an
amount equal to the Reserve Fund Initial Deposit
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into the Reserve Fund. The Transferor also does hereby grant to the
Securitization Trustee a security interest in such initial deposit, and the
Securitization Trustee shall have all the rights and powers of a secured
party under the UCC. Amounts on deposit in the Reserve Fund shall be
supplemented from time to time by the deposit therein of Excess Collections
otherwise distributable to the Transferor pursuant to Section 3.01(c), and
amounts that otherwise would be payable to the Transferor pursuant to Section
3.01(e) but for the fact that the amount on deposit in the Reserve Fund is
less than the Specified Reserve Fund Balance, to the extent described in this
subparagraph (b). On each Distribution Date the amounts on deposit in the
Reserve Fund shall be available for distribution as provided in Section 3.01
and, on each Distribution Date, if the amount on deposit in the Reserve Fund
(after giving effect to all deposits thereto or withdrawals therefrom on such
Distribution Date) is greater than the Specified Reserve Fund Balance, the
Securitization Trustee will distribute any such excess amount to the
Transferor, whereupon such excess amount shall no longer be available to the
Securitization Trustee or the Investor Certificateholders.
(c) Upon termination of the Securitization Trust pursuant to Section
7.01, any amounts on deposit in the Reserve Fund shall be available for payment
of any remaining amounts due to the Investor Certificateholders, and for payment
of any remaining amounts due to the Securitization Trustee, and after payment of
such amounts due, shall be paid to the Transferor.
SECTION 3.03. STATEMENTS TO CERTIFICATEHOLDERS.
(a) On each Distribution Date, the Securitization Trustee shall
include with each distribution to each Certificateholder of record, a statement,
prepared by the Servicer, based on information in the Servicer's Certificate
furnished pursuant to Section 5.01(b) of the 1997-A SUBI Servicing Supplement,
setting forth for the related Collection Period and such Distribution Date the
following information as of the related Record Date or Deposit Date or such
Distribution Date, as the case may be:
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(i) the Investor Percentage for such Collection Period, stated
separately for Interest Collections and Loss Amounts, and for Principal
Collections;
(ii) the total amount being distributed to Investor Certificateholders
in such distribution;
(iii) the total amount being distributed to each Class of Investor
Certificateholders in such distribution;
(iv) the total amount of interest being distributed to each Class of
Investor Certificateholders in such distribution;
(v) the amount, if any, of Class A-1 Interest Carryover Shortfall,
Class A-2 Interest Carryover Shortfall, Class A-3 Interest Carryover
Shortfall, Class A-4 Interest Carryover Shortfall and Class B Interest
Carryover Shortfall included in such distribution;
(vi) the amount, if any, of the remaining unpaid Class A-1 Interest
Carryover Shortfall, Class A-2 Interest Carryover Shortfall, Class A-3
Interest Carryover Shortfall, Class A-4 Interest Carryover Shortfall and
Class B Interest Carryover Shortfall after giving effect to such
distribution;
(vii) the total amount of principal being distributed to each Class of
Investor Certificateholders in such distribution;
(viii) the Class A-1 Allocation Percentage, the Class A-2 Allocation
Percentage, the Class A-3 Allocation Percentage, the Class A-4 Allocation
Percentage, the Class B Allocation Percentage and the amount, if any, of
the reimbursement of Class A-1 Charged-off Amounts, Class A-1 Residual
Value Loss Amounts and Class A-1 Additional Loss Amounts, Class A-2
Charged-off Amounts, Class A-2 Residual Value Loss Amounts and Class A-2
Additional Loss Amounts, Class A-3 Charged-off Amounts, Class A-3 Residual
Value Loss Amounts and Class A-3 Additional Loss Amounts, Class A-4
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Charged-off Amounts, Class A-4 Residual Value Loss Amounts and Class A-4
Additional Loss Amounts and Class B Charged-off Amounts, Class B Residual
Value Loss Amounts and Class B Additional Loss Amounts being included in
such distribution;
(ix) the amount, if any, of the reimbursement of Class A-1 Certificate
Principal Loss Amounts, Class A-2 Certificate Principal Loss Amounts, Class
A-3 Certificate Principal Loss Amounts, Class A-4 Certificate Principal
Loss Amounts and Class B Certificate Principal Loss Amounts included in
such distribution;
(x) the amount, if any, of the aggregate of unreimbursed Class A-1
Certificate Principal Loss Amounts, Class A-2 Certificate Principal Loss
Amounts, Class A-3 Certificate Principal Loss Amounts, Class A-4
Certificate Principal Loss Amounts and Class B Certificate Principal Loss
Amounts after giving effect to such distribution;
(xi) the amount, if any, of accrued Class A-1 Certificate Principal
Loss Interest Amounts, Class A-2 Certificate Principal Loss Interest
Amounts, Class A-3 Certificate Principal Loss Interest Amounts, Class A-4
Certificate Principal Loss Interest Amounts and Class B Certificate
Principal Loss Interest Amounts included in such distribution;
(xii) the amount, if any, of accrued and unpaid Class A-1 Certificate
Principal Loss Interest Amounts, Class A-2 Certificate Principal Loss
Interest Amounts, Class A-3 Certificate Principal Loss Interest Amounts,
Class A-4 Certificate Principal Loss Interest Amounts and Class B
Certificate Principal Loss Interest Amounts after giving effect to such
distribution;
(xiii) the amount, if any, of accrued and unpaid Class B Certificate
Principal Carryover Shortfall after giving effect to such distribution;
15
(xiv) the Investor Percentage of the Servicing Fee allocable to the
1997-A SUBI Interest for such Distribution Date and any unpaid previous
such amounts with respect to prior Distribution Dates;
(xv) the Certificate Balance, the Class A-1 Certificate Balance, the
Class A-2 Certificate Balance, the Class A-3 Certificate Balance, the Class
A-4 Certificate Balance, the Class B Certificate Balance, the Class A-1
Certificate Factor, the Class A-2 Certificate Factor, the Class A-3
Certificate Factor, the Class A-4 Certificate Factor and the Class B
Certificate Factor, each after giving effect to such distribution;
(xvi) the Transferor Amount, if any, included in such distribution and
the amount of the Transferor Interest, after giving effect to all payments
made on such Distribution Date;
(xvii) the Reserve Fund Withdrawal Amount, if any, included in such
distribution;
(xviii) the Aggregate Net Investment Value as of the end of such
Collection Period;
(xix) the portion of any Required Amount included in the distribution
to Investor Certificateholders, the amount on deposit in the Reserve Fund
on such Distribution Date, after giving effect to such distributions, the
change in such balance from the immediately preceding Distribution Date and
the Specified Reserve Fund Balance;
(xx) the amount of Payments Ahead on deposit in the 1997-A SUBI
Collection Account and representing Monthly Contract Payments due in one or
more immediately subsequent Collection Periods and the change in such
balance from the immediately preceding Distribution Date;
(xxi) the amount of Advances made in respect of such Distribution
Date, the amount of Outstanding Advances on
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such Distribution Date and the change in such amount from the immediately
preceding Distribution Date; and
(xxii) the weighted average Contract Rate of the Contracts in the
1997-A SUBI Portfolio for the immediately preceding Collection Period and
the Charge-off Rate and Delinquency Percentage for each of the three
immediately preceding Collection Periods.
[Each amount set forth pursuant to subclauses (ii) through (xiii) above shall be
expressed as a dollar amount per $1,000 of original principal balance of an
Investor Certificate.] Any Certificate Owner may obtain a copy of any such
statement, of any Servicer's Certificate required pursuant to Section 5.01(b) of
the 1997-A SUBI Servicing Supplement, any annual report of Independent
Accountants required pursuant to Section 5.02 of the 1997-A SUBI Servicing
Supplement, and of any annual Officer's Certificate required pursuant to Section
5.03 of the 1997-A SUBI Servicing Supplement, upon written request to the
Securitization Trustee at the Corporate Trust Office.
(b) Within a reasonable period of time after the end of each calendar
year, but not later than the latest date permitted by law, the Securitization
Trustee shall mail to each Person who at any time during such calendar year
shall have been a Holder of an Investor Certificate, a statement or statements
which in the aggregate contain the sum of the amounts set forth in clauses
(a)(ii) through (xiii) in Section 3.03(a) for such calendar year or, in the
event such Person shall have been a Holder of an Investor Certificate during a
portion of such calendar year, for the applicable portion of such year, for the
purposes of such Certificateholder's preparation of federal income tax returns.
In addition, the Servicer shall furnish to the Securitization Trustee for
distribution to such Person at such time any other information reasonably
necessary under applicable law for the preparation of such income tax returns.
ARTICLE FOUR
THE CERTIFICATES
SECTION 4.0
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1. THE CERTIFICATES.
(a) The Class A-1 Certificates, the Class A-2 Certificates, the
Class A-3 Certificates, the Class A-4 Certificates, the Class B Certificates
and the Transferor Certificate shall be substantially in the form of Exhibits
▇-▇, ▇-▇, ▇-▇, ▇-▇, B and C, respectively, to this Securitization Trust
Agreement. The Class A-1 Certificates, the Class A-2 Certificates, the Class
A-3 Certificates and the Class A-4 Certificates shall be issuable in minimum
denominations of $1,000 and integral multiples in excess thereof and the
Class B Certificates shall be issuable in minimum denominations of $250,000
and integral multiples of $1,000 in excess thereof (provided that no Class B
Certificate may be issued or transferred in a denomination that would cause
there to be, immediately after such issuance or transfer, one hundred (100)
or more Class B Certificateholders); PROVIDED, HOWEVER, that one Class A-1
Certificate, one Class A-2 Certificate, one Class A-3 Certificate, one Class
A-4 Certificate and one Class B Certificate may be issued in a denomination
that includes any remaining portion of the Initial Class A-1 Certificate
Balance, the Initial Class A-2 Certificate Balance, the Initial Class A-3
Certificate Balance, the Initial Class A-4 Certificate Balance and the
Initial Class B Certificate Balance, respectively (each, a "Residual
Certificate"). A single Transferor Certificate shall be issued. The
Certificates shall be executed on behalf of the Transferor by manual or
facsimile signature of an officer of the Transferor. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Securitization
Trustee shall not be rendered invalid, notwithstanding that such individuals
or any of them have ceased to be so authorized prior to the authentication
and delivery of such Certificates or did not hold such offices at the date of
such Certificates. All Certificates shall be dated the date of their
authentication.
(b) The Investor Certificates shall represent fractional undivided
interests in the 1997-A Securitization Trust, including the right to receive
the Investor Percentage of Interest Collections and Principal Collections and
the other
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amounts at the times and in the amounts specified in this Securitization
Trust Agreement. The Transferor Certificate shall represent the interest in
the 1997-A Securitization Trust not represented by the Investor Certificates.
SECTION 4.02. AUTHENTICATION AND DELIVERY OF CERTIFICATES.
In exchange for, and simultaneously with the sale, assignment and
transfer to the Securitization Trustee of the 1997-A SUBI Interest, the
1997-A SUBI Certificate and the other assets of the 1997-A Securitization
Trust, the Securitization Trustee shall cause to be executed, authenticated
and delivered to or upon the order of the Transferor Investor Certificates in
authorized denominations equaling in the aggregate the sum of the Initial
Class A-1 Certificate Balance, the Initial Class A-2 Certificate Balance, the
Initial Class A-3 Certificate Balance, the Initial Class A-4 Certificate
Balance and the Initial Class B Certificate Balance, and the Transferor
Certificate, each duly authorized by the Securitization Trustee, and
evidencing the entire ownership of the Securitization Trust. No Certificate
shall be entitled to any benefit under this Securitization Trust Agreement,
or be valid for any purpose, unless there appears on such Certificate a
certificate of authentication substantially in the form set forth in Exhibit
▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇ or C to this Securitization Trust Agreement, as the
case may be, executed by the Securitization Trustee by manual signature, and
such certificate upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly authenticated and
delivered under this Securitization Trust Agreement.
SECTION 4.03. REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall maintain a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Certificate Register shall provide for the registration of Certificates and
transfers and exchanges of Certificates as provided in this Securitization
Trust Agreement. The Securitization Trustee is hereby initially appointed
Certificate Registrar for the purpose of registering
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Certificates and transfers and exchanges of Certificates as provided in this
Securitization Trust Agreement. In the event that, subsequent to the Closing
Date, the Securitization Trustee notifies the Servicer that it is unable to
act as Certificate Registrar, the Servicer shall appoint another bank or
trust company, having an office or agency located in the Borough of
Manhattan, The City of New York, agreeing to act in accordance with the
provisions of this Securitization Trust Agreement applicable to it, and
otherwise acceptable to the Securitization Trustee, to act as successor
Certificate Registrar under this Securitization Trust Agreement.
The Transferor Certificate shall be owned by the Transferor and may not
be transferred, as provided by Section 5.06.
No transfer of a Class B Certificate shall be made unless the
registration requirements of the Securities Act and any applicable state
securities laws are complied with, or such transfer is exempt from the
registration requirements under the Securities Act and such state securities
laws. In the event that a transfer is to be made in reliance upon an
exemption from the Securities Act and such state securities laws, the
Securitization Trustee shall require that the transferee execute a
representation letter acceptable to and in form and substance satisfactory to
the Securitization Trustee (PROVIDED that the forms attached as Exhibits D-1
and D-2 shall be deemed acceptable if they are completed in a manner
acceptable to the Securitization Trustee) certifying to the Securitization
Trustee the facts surrounding such transfer, which representation letter
shall not be an expense of the Securitization Trustee, the Transferor or the
Servicer. The Holder of a Class B Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Securitization
Trustee, the Transferor and the Servicer against any liability that may
result if the transfer is not so exempt or is not made in accordance with the
Securities Act and such state laws. Neither the Transferor, the Servicer nor
the Securitization Trustee is under any obligation to register the Class B
Certificates under the Securities Act or any state securities laws.
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Notwithstanding anything to the contrary contained herein, no resale or
other transfer of a Class B Certificate or any interest therein shall be made
unless (i) immediately after giving effect to such resale or other transfer,
there would be less than 100 Class B Certificateholders and (ii) the
Securitization Trustee shall have received either a representation letter or
Opinion of Counsel from the prospective transferee of such Class B
Certificate, in form and substance satisfactory to the Transferor and the
Securitization Trustee (provided that the forms attached as Exhibits D-1 and
D-2 shall be deemed acceptable), to the effect that (A) such transferee will
not acquire such Class B Certificate with the assets of any "employee benefit
plan" as defined in Section 3(3) of ERISA, (B) no "prohibited transaction"
under ERISA or the Code will occur in connection with such prospective
transferee's acquisition of such Class B Certificate, (C) the acquisition of
such Class B Certificate is subject to a statutory or administrative
exemption, specified in such letter or opinion, from the "prohibited
transaction" provisions of ERISA and the Code, and (D) if the transferee is a
partnership, grantor trust or S corporation for federal income tax purposes
(a "Flow-Through Entity"), any Class B Certificates owned by such
Flow-Through Entity will represent less than 50% of the value of all the
assets owned by such Flow-Through Entity and no special allocation of income,
gain, loss, deduction or credit from such Class B Certificates will be made
among the beneficial owners of such Flow-Through Entity. Each prospective
transferee of any Class B Certificate will be required to represent to the
Securitization Trustee whether it will purchase such Class B Certificate with
the assets of an "employee benefit plan" as defined under ERISA or other
benefit plan investor.
The Class B Certificates, this Securitization Trust Agreement and related
documents may be amended or supplemented from time to time to modify
restrictions on and procedures for resale and other transfer of such Class B
Certificates to reflect any change in applicable law or regulation (or the
interpretation thereof) or practices relating to the resale or transfer of
restricted securities generally.
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(b) Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office of the Securitization Trustee in its capacity
as Certificate Registrar, or at the office of the agent of the Securitization
Trustee as Certificate Registrar, who shall initially be First Trust of New
York, National Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, in the Borough of Manhattan, the City of New York, or the appropriate
office of any successor Certificate Registrar, the Securitization Trustee
shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class in
authorized denominations of a like aggregate principal amount.
(c) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class of authorized
denominations of a like aggregate principal amount, upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange the Securitization Trustee on
behalf of the 1997-A Securitization Trust shall execute, authenticate and
deliver the Certificates that the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Securitization Trustee and
the Certificate Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing.
(d) No service charge shall be made to any Holder for any
registration of transfer or exchange of Certificates, but the Securitization
Trustee may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
(e) All Certificates surrendered for registration of transfer and
exchange shall be cancelled and subsequently destroyed by the Securitization
Trustee.
(f) No Class B Certificate shall be listed for trading on any
recognized securities exchange.
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SECTION 4.04. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate, and (ii) there is
delivered to the Certificate Registrar and the Securitization Trustee such
security or indemnity as may be required by them to save each of them and the
Securitization Trust harmless, then, in the absence of notice that such
Certificate has been acquired by a bona fide purchaser, the Securitization
Trustee on behalf of the 1997-A Securitization Trust shall execute and the
Securitization Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and fractional undivided interest. In connection
with the issuance of any new Certificate under this Section, the
Securitization Trustee may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto. Any duplicate Certificate issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in
the 1997-A Securitization Trust, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time, and any
such lost, stolen or destroyed Certificate shall, upon issuance of any such
duplicate Certificate, be null, void and of no effect.
SECTION 4.05. PERSONS DEEMED OWNERS.
Prior to due presentation of a Certificate for registration of transfer,
the Securitization Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 3.01 and for all other purposes whatsoever,
and neither the Securitization Trustee, the Certificate Registrar nor any of
their respective agents shall be affected by any notice to the contrary.
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SECTION 4.06. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
The Certificate Registrar shall furnish or cause to be furnished to the
Servicer, within 15 days after receipt by the Certificate Registrar of a
written request therefor from the Servicer, a list, in such form as the
Servicer may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders or holders of Investor Certificates evidencing not less
than 25% of the aggregate Percentage Interests of any Class (hereinafter
referred to as "Applicants") apply in writing to the Securitization Trustee,
and such application states that the Applicants desire to communicate with
other Investor Certificateholders with respect to their rights under this
Securitization Trust Agreement or under the Certificates and such application
is accompanied by a copy of the communication that such Applicants propose to
transmit, then the Securitization Trustee shall, within five Business Days
after the receipt of such application, afford such Applicants access, during
normal business hours, to the current list of Investor Certificateholders.
Every Certificateholder, by receiving and holding a Certificate, agrees with
the Servicer and the Securitization Trustee that neither the Servicer nor the
Securitization Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the
Certificateholders under the Agreement, regardless of the source from which
such information was derived.
SECTION 4.07. MAINTENANCE OF OFFICE OR AGENCY.
The Securitization Trustee shall maintain in the Borough of Manhattan,
The City of New York, an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or exchange.
The initial such agency shall be c/o First Trust of New York, National
Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; PROVIDED
that a copy of any such Certificate surrendered shall be sent to the
Securitization Trustee at the Corporate Trust Office. The Securitization
Trustee shall give prompt written notice to the Transferor, the Servicer and
the Certificateholders of any change
24
in the location of any such office or agency. Notices and demands to or upon
the Securitization Trustee in respect of the Certificates and this
Securitization Trust Agreement shall not be sent to such office or agency,
but shall be sent as set forth in Section 10.02.
SECTION 4.08. TEMPORARY CERTIFICATES.
Pending the preparation of definitive Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates or Class A-4 Certificates, the
Securitization Trustee, on behalf of the 1997-A Securitization Trust, may
execute, authenticate and deliver, temporary Class A-1 Certificates, Class
A-2 Certificates, Class A-3 Certificates or Class A-4 Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates or
Class A-4 Certificates in lieu of which they are issued. If temporary Class
A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates or Class A-4
Certificates are issued, the Transferor will cause definitive Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates or Class A-4
Certificates to be prepared without unreasonable delay. After the
preparation of definitive Class A-1 Certificates, Class A-2 Certificates,
Class A-3 Certificates or Class A-4 Certificates, the temporary Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates or Class A-4
Certificates shall be exchangeable for definitive Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates or Class A-4 Certificates upon
surrender of the temporary Class A-1 Certificates, Class A-2 Certificates,
Class A-3 Certificates or Class A-4 Certificates at the office or agency to
be maintained as provided in Section 4.07, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Class A
Certificates, the Securitization Trustee shall execute and authenticate and
deliver in exchange therefor a like principal amount of definitive Class A
Certificates in authorized denominations. Until so exchanged the temporary
Class A Certificates shall in all respects be entitled to the same benefits
under the Agreement as definitive Class A Certificates.
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SECTION 4.09. BOOK-ENTRY CERTIFICATES.
The Class A-1 Certificates, the Class A-2 Certificates, the Class A-3
Certificates and the Class A-4 Certificates, upon original issuance will be
issued in the form of one or more typewritten certificates representing the
Book-Entry Certificates, to be delivered to DTC, the initial Clearing Agency,
by, or on behalf of, the Transferor. The certificate or certificates
delivered to DTC evidencing such Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates and the Class A-4 Certificates shall
initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Certificate Owner
will receive a definitive certificate representing such Certificate Owner's
interest in the Class A-1 Certificates, the Class A-2 Certificates, the Class
A-3 Certificates or the Class A-4 Certificates, except as provided in Section
4.11. Unless otherwise specified in this Securitization Trust Agreement,
unless and until definitive, fully registered Class A-1 Certificates, Class
A-2 Certificates, Class A-3 Certificates and the Class A-4 Certificates (the
"Definitive Certificates") have been issued to Certificate Owners pursuant to
Section 4.11:
(i) the provisions of this Section shall be in full force and effect;
(ii) the Transferor, the Servicer, the Certificate Registrar and the
Securitization Trustee may deal with the Clearing Agency for all purposes
(including the making of distributions on the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates and the Class A-4
Certificates) as the authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section conflict with
any other provisions of the Agreement, the provisions of this Section shall
control;
(iv) the rights of Certificate Owners shall be exercised only through
(or through procedures established by) the Clearing Agency and shall be
limited to those
26
established by law and agreements between such Certificate Owners and
the Clearing Agency and/or the Clearing Agency Participants. Unless and
until Definitive Certificates are issued pursuant to Section 4.11, the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of principal
and interest on the Class A-1 Certificates, the Class A-2 Certificates,
the Class A-3 Certificates and the Class A-4 Certificates to such Clearing
Agency Participants; and
(v) whenever this Securitization Trust Agreement requires or permits
actions to be taken based upon instructions or directions of Holders of
Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates or
Class A-4 Certificates evidencing a specified aggregate Percentage Interest
thereof the Clearing Agency shall be deemed to represent such percentage
(if and to the extent that it will act on behalf of Certificate Owners
and/or Clearing Agency Participants) only to the extent that it has
received instructions to such effect from Certificate Owners and/or
Clearing Agency Participants owning or representing, respectively, such
required percentages of the beneficial interest in Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates or Class A-4 Certificates
and has delivered such instructions to the Securitization Trustee.
SECTION 4.10. NOTICES TO CLEARING AGENCY.
Whenever notice or other communication to the Class A-1
Certificateholders, Class A-2 Certificateholders, the Class A-3
Certificateholders, or the Class A-4 Certificateholders is required under
this Securitization Trust Agreement, other than to the Holder of the Residual
Certificate with respect to the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates or the Class A-4 Certificates,
respectively, unless and until Definitive Certificates shall have been issued
to Certificate Owners pursuant to Section 4.11, the Securitization Trustee
and the Servicer shall give all such notices and communications specified
herein to be given to Holders of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3
27
Certificates, or the Class A-4 Certificates to the Clearing Agency.
SECTION 4.11. DEFINITIVE CERTIFICATES.
If (i)(A) the Transferor advises the Securitization Trustee in writing
that the Clearing Agency is no longer willing or able to properly discharge
its responsibilities as described in the letter of representations among the
Transferor, the Securitization Trustee and the Clearing Agency and (B) the
Securitization Trustee or the Transferor is unable to locate a qualified
successor, (ii) the Transferor at its option, advises the Securitization
Trustee in writing that it elects to terminate the book-entry system through
the Clearing Agency, or (iii) after the occurrence of an Early Amortization
Event, Certificate Owners representing beneficial interests in the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates and the
Class A-4 Certificates (voting together as a single class) aggregating not
less than 51% of the Percentage Interests advise the Securitization Trustee
and the Clearing Agency through the Clearing Agency Participants in writing
that the continuation of a book-entry system through the Clearing Agency is
no longer in the best interests of the Certificate Owners, then the
Securitization Trustee shall notify all Certificate Owners, through the
Clearing Agency, of the occurrence of such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Securitization Trustee of the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates or the Class A-4
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Securitization Trustee shall
issue the Definitive Certificates and deliver such Definitive Certificates in
accordance with the instructions of the Clearing Agency. None of the
Transferor, the Certificate Registrar or the Securitization Trustee shall be
liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates, the Securitization Trustee shall
recognize the Holders of the Definitive Certificates as Class A-1
Certificateholders, Class A-2 Certificateholders, Class A-3
Certificateholders or Class A-4
28
Certificateholders hereunder, as applicable. The Securitization Trustee
shall not be liable if the Securitization Trustee or the Transferor is unable
to locate a qualified successor Clearing Agency.
SECTION 4.12. TAX TREATMENT.
(a) It is the intention of the Transferor and the Investor
Certificateholders that the Investor Certificates will be indebtedness of the
Transferor for federal, state and local income and franchise tax purposes and
for purposes of any other tax imposed on or measured by income. The
Transferor, the Securitization Trustee and each Holder of an Investor
Certificate (or Certificate Owner) by acceptance of its Investor Certificate
(or, in the case of a Certificate Owner, by virtue of such Certificate
Owner's acquisition of a beneficial interest therein) agree to treat the
Investor Certificates (or beneficial interest therein), for purposes of
federal, state and local income or franchise taxes and any other tax imposed
on or measured by income, as secured indebtedness of the Transferor and to
report the transactions contemplated by this Securitization Trust Agreement
on all applicable tax returns in a manner consistent with such treatment.
Each Holder of an Investor Certificate agrees that it will cause any
Certificate Owner acquiring an interest in a Certificate through it to comply
with this Securitization Trust Agreement as to treatment as secured
indebtedness for federal, state and local income and franchise tax purposes
and for purposes of any other tax imposed on or measured by income. Each
Holder of an Investor Certificate also agrees that it will not be entitled to
any of the tax benefits related to the Contracts and Leased Vehicles,
including any of the depreciation deductions resulting therefrom.
(b) In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a), it is finally determined that the
Class A-1 Certificates, the Class A-2 Certificates, the Class A-3
Certificates, the Class A-4 Certificates and/or the Class B Certificates do
not evidence indebtedness of the Transferor for all income and franchise tax
purposes, but rather represent an equity interest in the assets of the 1997-A
Securitization Trust, then the Transferor, the
29
Securitization Trustee, each Holder of such Investor Certificate and each
Certificate Owner thereof, by virtue of acquiring a beneficial interest
therein, all agree (i) to treat such Investor Certificates, together with the
Transferor Certificate, as representing an interest in a partnership for all
tax purposes, (ii) to treat all payments in respect of such Investor
Certificates (to the extent not a return of capital) as a "guaranteed
payment" thereon made pursuant to Section 707(c) of the Code, and (iii) to
allocate all other items of income, gain, deduction, loss or credit with
respect to the assets and operations of the 1997-A Securitization Trust to
the Transferor.
ARTICLE FIVE
THE TRANSFEROR
SECTION 5.01. REPRESENTATIONS OF TRANSFEROR.
The Transferor hereby makes the following representations on which the
Securitization Trustee relies in accepting the 1997-A SUBI Interest and
1997-A SUBI Certificate in trust and authenticating the Certificates. The
representations speak as of the execution and delivery of this Securitization
Trust Agreement, but shall survive the sale, transfer and assignment of the
1997-A SUBI Interest and 1997-A SUBI Certificate to the Securitization
Trustee.
(a) ORGANIZATION AND GOOD STANDING. The Transferor is a corporation
duly incorporated and validly existing and in good standing under the laws of
the State of California, with power and authority to own its properties and
to conduct its business as such properties shall be currently owned and such
business is presently conducted, and has power, authority and legal right to
acquire, own and sell the 1997-A SUBI Interest and 1997-A SUBI Certificate.
(b) DUE REGISTRATION. The Transferor is duly registered 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 requires such qualifications, except
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where the failure to so qualify or to have obtained such licenses and
approvals would not have a material adverse effect on the earnings, business
affairs or business prospects of the Transferor.
(c) POWER AND AUTHORITY. The Transferor has the power and authority
to execute and deliver this Securitization Trust Agreement and to carry out
its terms, the Transferor has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Securitization
Trustee as part of the 1997-A Securitization Trust and has duly authorized
such sale and assignment to the Securitization Trustee by all necessary
action; and the execution, delivery and performance of this Securitization
Trust Agreement have been duly authorized by the Transferor by all necessary
corporate action.
(d) VALID SALE; BINDING OBLIGATIONS. This Securitization Trust
Agreement evidences a valid sale, transfer and assignment of the 1997-A SUBI
Interest and 1997-A SUBI Certificate, enforceable against creditors of and
purchasers from the Transferor; and constitutes a legal, valid and binding
obligation of the Transferor enforceable in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at law.
(e) NO VIOLATION. The consummation of the transactions contemplated
by this Securitization Trust Agreement and the fulfillment of the terms of
this Securitization Trust Agreement do 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 certificate of incorporation of
the Transferor, or conflict with or violate any of the material terms or
provisions of, or constitute (with or without notice or lapse of time) a
default under, any indenture, agreement or other instrument to which the
Transferor 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
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this Securitization Trust Agreement); nor violate any law or, to the best of
the Transferor's knowledge, any order, rule or regulation applicable to the
Transferor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Transferor 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 Transferor.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending, or to the Transferor's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Transferor or its properties: (i) asserting the
invalidity of this Securitization Trust Agreement or the Certificates, (ii)
seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by this Securitization Trust Agreement,
(iii) seeking any determination or ruling that might materially and adversely
affect the performance by the Transferor of its obligations under, or the
validity or enforceability of, this Securitization Trust Agreement or the
Certificates or (iv) relating to the Transferor and which might adversely
affect the federal, Delaware or Illinois income tax attributes of the
Certificates.
(g) TITLE TO 1997-A SUBI CERTIFICATE. The Transferor has good title
to, and is the sole legal and beneficial owner of, the 1997-A SUBI
Certificate, free and clear of all Liens.
(h) CONSENTS AND APPROVALS. The Transferor has obtained or made all
necessary licenses, consents, approvals, waivers and notifications of
creditors, lessors and other nongovernmental Persons, in each case in
connection with the execution and delivery of this Securitization Trust
Agreement and the consummation of all the transactions herein contemplated,
and the Transferor is not required to obtain the consent of any other party
or the consent, license, approval, or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in connection
with the execution, delivery,
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performance, validity or enforceability of this Securitization Trust
Agreement.
SECTION 5.02. LIABILITY OF TRANSFEROR; INDEMNITIES.
(a) The Transferor shall be liable in accordance with this
Securitization Trust Agreement only to the extent of the obligations in this
Securitization Trust Agreement specifically undertaken by the Transferor in such
capacity under this Securitization Trust Agreement and shall have no other
obligations or liabilities hereunder.
(b) The Transferor agrees to be, and shall be, liable (as if the
1997-A Securitization Trust were a limited partnership under the [California
Limited Partnership Act] in which the Transferor is the general partner) without
limitation for all liabilities (including taxes), contracts, expenses, indemnity
payments and other charges of the 1997-A Securitization Trust, other than
distributions to Certificateholders.
SECTION 5.03. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF, TRANSFEROR; CERTAIN LIMITATIONS.
(a) Any Person (i) into which the Transferor may be merged or
consolidated, (ii) which may result from any merger, conversion or consolidation
to which the Transferor shall be a party or (ii) which may succeed to all or
substantially all of the business of the Transferor, shall be the successor to
the Transferor under this Securitization Trust Agreement without the execution
or filing of any document or any further act on the part of any of the parties
to this Securitization Trust Agreement, except that if the Transferor in any of
the foregoing cases is not the surviving entity, then the surviving entity shall
execute an agreement of assumption to perform every obligation of the Transferor
either generally or specifically as provided herein. The Transferor shall
provide notice of any merger, consolidation or succession pursuant to this
Section to each Rating Agency and shall receive from each Rating Agency a letter
to the effect that such merger, consolidation, or succession will not result in
a qualification, downgrading or
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withdrawal of the then-current rating assigned to any Rated Certificates.
(b)(i) Subject to subparagraph (ii) below, the purpose of the
Transferor shall be to engage in any lawful activity for which a corporation may
be organized under the laws of the State of California.
(ii) Notwithstanding subparagraph (b)(i) above, the purpose of the
Transferor shall be limited to the following purposes:
(A) to acquire from time to time from TMCC all right, title and
interest in and to the SUBI Certificates evidencing units of beneficial interest
in the SUBI Assets;
(B) to acquire, own, hold, service, sell, assign, pledge and
otherwise deal with the SUBI Certificates and SUBI Assets, related insurance
policies, related agreements with TMCC and any proceeds or further rights
associated with any of the foregoing;
(C) to sell, assign, transfer, convey and/or pledge all or any part
of each such SUBI Certificate to one or more trusts or other persons or legal
entities pursuant to one or more Securitization Trust Agreements, indentures or
similar agreements (the "Agreements") to be entered into by and among TMCC, as
servicer, the Transferor and each other pledgee or transferee named therein (the
"transferees");
(D) to sell any series or class of asset-backed certificates or other
securities issued by or evidencing interests in the transferees or obligations
of the transferees or the Transferor under the related Agreements, including the
Investor Certificates ("Securities");
(E) to hold and enjoy all of the rights and privileges of any
Securities so issued under the related Securitization Trust Agreements;
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(F) to perform its obligations under the Securitization Trust
Agreements, indentures or similar agreements; and
(G) to engage in any activity and to exercise any powers permitted to
corporations under the laws of the State of California that are related or
incidental to the foregoing and necessary, convenient and advisable to
accomplish the foregoing.
(c) Notwithstanding any other provision of this Section and any
provision of law, the Transferor shall not do any of the following:
(i) engage in any business or activity other than as set forth in
clause (b) above;
(ii) [without the affirmative vote of a majority of the members of the
Board of Directors of the Transferor (which must include the affirmative
vote of all Independent Directors of the Transferor, as required by
certificate of incorporation of the Transferor), (A) dissolve or liquidate,
in whole or in part, or institute proceedings to be adjudicated bankrupt or
insolvent, (B) consent to the institution of bankruptcy or insolvency
proceedings against it, (C) file a petition seeking or consent to
reorganization or relief under any applicable federal or state law relating
to bankruptcy, (D) consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Transferor or a substantial part of its property, (E) make a general
assignment for the benefit of creditors, (F) admit in writing its inability
to pay its debts generally as they become due, or (G) take any corporate
action in furtherance of the actions set forth in clauses (A) through (F)
above];
(iii) without the unanimous affirmative vote of the members of the
Board of Directors of the Transferor, merge or consolidate with any other
Person or sell all or substantially all of its assets or acquire all or
substantially all of the assets or capital stock or other ownership
interest of any other Person, (provided that such
35
restrictions shall not limit the acquisition of SUBI Certificates or the
ability of the Transferor to sell, assign, transfer, convey and/or pledge
all or any part of any SUBI Certificate in accordance with Section
5.03(b)(ii) hereof, financing, and refinancing of, or otherwise dealing
with, beneficial interests in the Titling Trust in accordance with the
terms of subparagraph (b)(ii) above, which shall not be otherwise
restricted by this Section 5.03(c)); or
(iv) so long as any outstanding debt of the Transferor or Securities
are rated by any nationally recognized statistical rating agency issue,
unsecurited notes or otherwise borrow money unless
(A) the Transferor has made a written request to the related
nationally recognized rating agency to issue unsecured notes or incur borrowings
and such notes or borrowings are rated by the related nationally recognized
rating agency the same as or higher than the rating afforded any outstanding
rated debt or Securities, or
(B) such notes or borrowings (1) are fully subordinated (and which
shall provide for payment only after payment in respect of all outstanding rated
debt and/or Securities) or are nonrecourse against any assets of the Transferor
other than the assets pledged to secure such notes or borrowings, (2) do not
constitute a claim against the Transferor in the event that such assets are
insufficient to pay such notes or borrowings, and (3) where such notes or
borrowings are secured by the rated debt or Securities, are fully subordinated
(and which shall provide for payment only after payment in respect of all
outstanding rated debt and/or Securities) to such rated debt or Securities.
SECTION 5.04. LIMITATION ON LIABILITY OF TRANSFEROR AND OTHERS.
The Transferor and any director or officer or employee or agent of the
Transferor may rely in good faith on the advice of counsel or on any document of
any kind, prima facie properly
36
executed and submitted by any Person respecting any matters arising under
this Securitization Trust Agreement.
SECTION 5.05. TRANSFEROR MAY OWN INVESTOR CERTIFICATES.
Each of the Transferor and any Person controlling, controlled by or under
common control with the Transferor may in its individual or any other capacity
become the owner or pledgee of Investor Certificates with the same rights as it
would have if it were not the Transferor or such an affiliate thereof except as
otherwise specifically provided in the definition of the term
"Certificateholder." Investor Certificates so owned by or pledged to the
Transferor or such controlling or commonly controlled Person shall have an equal
and proportionate benefit under the provisions of this Securitization Trust
Agreement, without preference, priority or distinction as among all of the
Investor Certificates. The Transferor will give notice to each Rating Agency if
any such controlling or commonly controlled Person shall at any time become the
owner or pledgee of Investor Certificates.
SECTION 5.06. NO TRANSFER.
The Transferor on behalf of itself and its successors and assigns hereby
covenants that it will not transfer, pledge or assign to any Person the
Transferor Certificate or any part of its right to receive any Excess
Collections pursuant to Section 3.01(c).
SECTION 5.07. TAX MATTERS PARTNER.
In the event that the 1997-A Securitization Trust is recharacterized as a
partnership for tax purposes, the Transferor shall act as "Tax Matters Partner"
(i) to represent the Transferor and the Class B Certificateholders, in their
capacities as partners in a partnership for tax purposes, before taxing
authorities or courts of competent jurisdiction in any tax matters affecting the
1997-A Securitization Trust as a tax partnership; and (ii) to execute any
agreements or other documents relating to or affecting such tax matters,
including agreements or other documents binding the Class B
37
Certificateholders with respect to such tax matters or otherwise affecting
their rights, including, but not limited to, extending the statute of
limitations for assessment of tax deficiencies against the Class B
Certificateholders and adjusting the 1997-A Securitization Trust's federal,
state or local tax returns. The Transferor shall not be liable to the 1997-A
Securitization Trust or to any Certificateholder for any action taken or
omitted by the Transferor with regard to such tax matters or otherwise as a
result of its holding the position of Tax Matters Partner.
ARTICLE SIX
THE SECURITIZATION TRUSTEE
SECTION 6.0
1. DUTIES OF TRUSTEE.
(a) The Securitization Trustee, both prior to and after the occurrence of
an Event of Servicing Termination under the 1997-A SUBI Servicing Supplement,
undertakes to perform such duties and only such duties as are specifically set
forth in this Securitization Trust Agreement.
(b) The Securitization Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securitization Trustee that shall be specifically
required to be furnished pursuant to any provision of this Securitization Trust
Agreement, shall examine them to determine whether they conform on their face to
the requirements of this Securitization Trust Agreement.
(c) No provision of this Securitization Trust Agreement shall be construed
to relieve the Securitization Trustee from liability for its own negligent
action, its own negligent failure to act, its own bad faith or its own willful
misfeasance; PROVIDED, HOWEVER, that
(i) the duties and obligations of the Securitization Trustee shall be
determined solely by the express provisions of this Securitization Trust
Agreement, the Securitization Trustee shall not be liable except for the
performance of
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such duties and obligations as are specifically set forth in this
Securitization Trust Agreement, no implied covenants or obligations shall
be read into this Securitization Trust Agreement against the
Securitization Trustee, the permissive right of the Securitization
Trustee to do things enumerated in this Securitization Trust Agreement
shall not be construed as a duty and, in the absence of bad faith on the
part of the Securitization Trustee, the Securitization Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Securitization Trustee and conforming on their face to
the requirements of this Securitization Trust Agreement;
(ii) the Securitization Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Securitization Trustee was negligent in performing
its duties in accordance with the terms of this Securitization Trust
Agreement; and
(iii) the Securitization Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken in good faith
in accordance with the direction of the Holders of Investor Certificates
evidencing not less than 51% of the aggregate Percentage Interest relating
to the time, method and place of conducting any proceeding for any remedy
available to the Securitization Trustee, or exercising any trust or power
conferred upon the Securitization Trustee, under this Securitization Trust
Agreement or the Titling Trust Agreement (as supplemented by the 1997-A
SUBI Supplement).
(d) The Securitization Trustee shall not be required to expend or risk
its own funds or otherwise incur financial liability in the performance of any
of its duties under this Securitization Trust Agreement, or in the exercise of
any of its rights or powers, if there shall be reasonable grounds for believing
that the repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
39
(e) All information obtained by the Securitization Trustee regarding
the Obligors and the Contracts contained in the 1997-A SUBI, whether upon the
exercise of its rights under this Securitization Trust Agreement or otherwise,
shall be maintained by the Securitization Trustee in confidence and shall not be
disclosed to any other Person, unless such disclosure is required by any
applicable law or regulation or pursuant to subpoena.
SECTION 6.02. CERTAIN MATTERS AFFECTING THE SECURITIZATION TRUSTEE.
(a) Except as otherwise provided in Section 6.01:
(i) the Securitization Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of an authorized signatory, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) the Securitization Trustee may consult with counsel and any
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it under this
Securitization Trust Agreement in good faith and in accordance with such
Opinion of Counsel;
(iii) the Securitization Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Securitization
Trust Agreement or the Titling Trust Agreement (as supplemented by the
1997-A SUBI Supplement), or to institute, conduct or defend any litigation
under this Securitization Trust Agreement or the Titling Trust Agreement
(as supplemented by the 1997-A SUBI Supplement), or in relation to this
Securitization Trust Agreement or the Titling Trust Agreement (as
supplemented by the 1997-A SUBI Supplement), at the request, order or
direction of any of the Certificateholders pursuant to the provisions of
this Securitization Trust Agreement or the
40
Titling Trust Agreement (as supplemented by the 1997-A SUBI Supplement),
unless such Certificateholders shall have offered to the Securitization
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby;
(iv) the Securitization Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon
it by this Securitization Trust Agreement;
(v) the Securitization Trustee shall not be bound to recalculate,
reverify, or make any investigation into the facts of matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Investor Certificates
evidencing not less than 25% of the aggregate Percentage Interest of any
Class; PROVIDED, HOWEVER, that if the payment within a reasonable time to
the Securitization Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of
the Securitization Trustee, not reasonably assured to the Securitization
Trustee by the security afforded to it by the terms of this Securitization
Trust Agreement, the Securitization Trustee may require reasonable
indemnity against such cost, expense or liability as a condition to so
proceeding; the reasonable expense of every such examination shall be paid
by the Transferor or, if paid by the Securitization Trustee, shall be
reimbursed by the Transferor upon demand; and nothing in this clause shall
derogate from the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors; and
(vi) the Securitization Trustee may execute any of the trusts or
powers under this Securitization Trust Agreement or perform any duties
under this Securitization Trust Agreement either directly or by or through
agents or attorneys or a custodian.
41
(b) No Certificateholder will have any right to institute any
proceeding with respect to this Securitization Trust Agreement except upon
satisfying the conditions set forth in Section 9.03(c).
SECTION 6.03. TRUSTEE NOT LIABLE FOR CERTIFICATES OR CONTRACTS.
The Securitization Trustee shall make no representations as to the validity
or sufficiency of this Securitization Trust Agreement or of the Certificates
(other than the execution by the Securitization Trustee on behalf of the 1997-A
Securitization Trust of, and the certificate of authentication on, the
Certificates), or of the 1997-A SUBI Interest or 1997-A SUBI Certificate. The
Securitization Trustee shall have no obligation to perform any of the duties of
the Transferor unless explicitly set forth in this Securitization Trust
Agreement. The Securitization Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability of
the 1997-A SUBI Interest or 1997-A SUBI Certificate or any 1997-A Contract, any
ownership interest in any 1997-A Leased Vehicle, or the maintenance of any such
ownership interest, or for or with respect to the efficacy of the 1997-A
Securitization Trust or its ability to generate the payments to be distributed
to Certificateholders under this Securitization Trust Agreement, including
without limitation the validity of the assignment of the 1997-A SUBI Interest or
1997-A SUBI Certificate to the 1997-A Securitization Trust or of any intervening
assignment; the existence, condition, location and ownership of any 1997-A
Contract or 1997-A Leased Vehicle; the existence and enforceability of any
physical damage or credit life or credit disability insurance; the existence and
contents of any 1997-A Contract or any computer or other record thereof; the
completeness of any 1997-A Contract; the performance or enforcement of any
Contract; the compliance by the Transferor with any covenant or the breach by
the Transferor of any warranty or representation made under this Securitization
Trust Agreement or in any related document and the accuracy of any such warranty
or representation prior to the Securitization Trustee's receipt of notice or
other discovery of any noncompliance therewith or any breach thereof; the acts
or omissions of the Transferor or
42
the Servicer; or any action by the Securitization Trustee taken at the
instruction of the Servicer PROVIDED, HOWEVER, that the foregoing shall
not relieve the Securitization Trustee of its obligation to perform its
duties under this Securitization Trust Agreement. Except with respect to
a claim based on the failure of the Securitization Trustee to perform its
duties under this Securitization Trust Agreement or based on the
Securitization Trustee's willful misconduct, bad faith or negligence, no
recourse shall be had for any claim based on any provision of this
Securitization Trust Agreement, the Certificates, the 1997-A SUBI
Interest or 1997-A SUBI Certificate or assignment thereof against the
institution serving as Trustee in its individual capacity. The
Securitization Trustee shall not have any personal obligation, liability
or duty whatsoever to any Certificateholder or any other Person with
respect to any such claim, and any such claim shall be asserted solely
against the 1997-A Securitization Trust or any indemnitor who shall
furnish indemnity as provided in this Securitization Trust Agreement. The
Securitization Trustee shall not be accountable for the use or
application by the Transferor of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any funds
paid to the Servicer in respect of the 1997-A SUBI Interest or 1997-A
SUBI Certificate.
SECTION 6.04. TRUSTEE MAY OWN CERTIFICATES.
The Securitization Trustee in its individual or any other capacity may
become the owner or pledgee of Certificates with the same rights as it would
have if it were not Trustee.
SECTION 6.05. TRUSTEE'S FEES AND EXPENSES.
The Securitization Trustee shall be entitled to reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trusts created by this Securitization Trust Agreement
and in the exercise and performance of any of the powers and duties of the
Securitization Trustee under this Securitization Trust Agreement, and payment or
reimbursement upon its request for all reasonable expenses, disbursements and
advances incurred or made by the
43
Securitization Trustee in its capacity as Trustee in accordance with any
of the provisions of this Securitization Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence, willful
misfeasance or bad faith or that is the responsibility of
Certificateholders under this Securitization Trust Agreement. Such
compensation and reimbursement shall be paid as set forth in Section
3.01(b) hereof.
SECTION 6.06. ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
The Securitization Trustee under this Securitization Trust Agreement shall
at all times be a national banking association or state banking institution
[having its corporate trust office in the same State as the location of the
Corporate Trust Office as specified in this Securitization Trust Agreement]; and
organized and doing business under the laws of such State or the United States;
authorized under such laws to exercise corporate trust powers; having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authorities; and having a long-term deposit
rating no lower than Baa3 by Moody's, so long as ▇▇▇▇▇'▇ is a Rating Agency, or
be otherwise acceptable to each Rating Agency, as evidenced by a letter to such
effect from each of them.
If the Securitization Trustee shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securitization Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Securitization Trustee shall
resign immediately in the manner and with the effect specified in Section 6.07.
SECTION 6.07. RESIGNATION OR REMOVAL OF TRUSTEE.
44
(a) The Securitization Trustee may at any time resign and be
discharged from the trusts created by this Securitization Trust Agreement
by giving written notice thereof to the Transferor. Upon receiving such
notice of resignation, the Transferor shall promptly appoint a successor
Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
Trustee. If no successor Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(b) If at any time the Securitization Trustee shall cease to be
eligible in accordance with the provisions of Section 6.06 and shall fail to
resign after written request therefor by the Transferor, or if at any time the
Securitization Trustee shall be legally unable to act, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Securitization Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Securitization Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Transferor may remove the
Securitization Trustee. If it shall remove the Securitization Trustee under the
authority of the immediately preceding sentence, the Transferor shall promptly
appoint a successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Securitization Trustee so removed and
one copy to the successor Trustee, and payment of all fees owed to the outgoing
Trustee.
(c) Any resignation or removal of the Securitization Trustee and
appointment of a successor Trustee pursuant to any of the provisions of this
Section shall not become effective until acceptance of appointment by the
successor Trustee as provided in Section 6.08. The Servicer shall give each
Rating Agency notice of any such resignation or removal of the Securitization
Trustee and appointment and acceptance of a successor Trustee.
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SECTION 6.08. SUCCESSOR TRUSTEE.
Any successor Trustee appointed as provided in Section 6.07 shall execute,
acknowledge and deliver to the Transferor and to its predecessor Trustee an
instrument accepting such appointment under this Securitization Trust Agreement,
and thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Securitization Trust Agreement, with
like effect as if originally named as Trustee. The predecessor Trustee shall
deliver to the successor Trustee all documents and statements held by it under
this Securitization Trust Agreement; and the Transferor and the predecessor
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Trustee all such rights, powers, duties and obligations. No successor
Trustee shall accept appointment as provided in this Section unless at the time
of such acceptance such successor Trustee shall be eligible under the provisions
of Section 6.06. Upon acceptance of appointment by a successor Trustee as
provided in this Section, the Transferor shall cause notice of the successor of
such Trustee under this Securitization Trust Agreement to be mailed to all
Certificateholders at their addresses as shown in the Certificate Register and
shall give notice by mail to each Rating Agency. If the Transferor fails to
mail or cause to be mailed such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Transferor.
SECTION 6.09. MERGER OR CONSOLIDATION OF TRUSTEE.
Any corporation (i) into which the Securitization Trustee may be merged or
consolidated, (ii) which may result from any merger, conversion or consolidation
to which the Securitization Trustee shall be a party, or (iii) which may succeed
to the corporate trust business of the Securitization Trustee, shall be the
successor of the Securitization Trustee hereunder, provided such corporation
shall be eligible pursuant to Section 6.06,
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without the execution or filing of any instrument or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding, except that if the Securitization Trustee in any of the
foregoing cases is not the surviving entity, then the surviving entity
shall execute an agreement of assumption to perform every obligation of
the Securitization Trustee, either generally or particularly as provided
herein. Notice of any such event shall be given by the Securitization
Trustee to each Rating Agency.
SECTION 6.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Securitization Trust
Agreement, at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Securitization Trust may at the time be
located, the Transferor and the Securitization Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Securitization Trustee to act as co-trustee, jointly
with the Securitization Trustee, or separate trustee or separate trustees, of
all or any part of the 1997-A Securitization Trust, and to vest in such Person,
in such capacity and for the benefit of the Certificateholders, such title to
the 1997-A Securitization Trust, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Transferor and the Securitization Trustee may consider necessary or
desirable. If the Transferor shall not have joined in such appointment within
15 days after the receipt by it of a request so to do, the Securitization
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee under this Securitization Trust Agreement shall be required to
meet the terms of eligibility as a successor Trustee pursuant to Section 6.06
and no notice of a successor Trustee pursuant to Section 6.08 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required pursuant to Section 6.08.
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Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Securitization Trustee shall be conferred upon and exercised or
performed by the Securitization Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Securitization
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed,
the Securitization Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the 1997-A Securitization
Trust or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the direction of the Securitization Trustee;
(ii) no trustee under this Securitization Trust Agreement shall be
personally liable by reason of any act or omission of any other trustee
under this Securitization Trust Agreement; and
(iii) the Transferor and the Securitization Trustee acting jointly
may at any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Securitization Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this
Securitization Trust Agreement and the conditions of this Section. Each
separate trustee and co-trustee, upon its acceptance of the trusts conferred,
shall be vested with the estates or property specified in its instrument of
appointment, either jointly with the Securitization Trustee or separately, as
may be provided therein, subject to all the provisions of this Securitization
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Trust Agreement, specifically including every provision of this
Securitization Trust Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Securitization Trustee. Each
such instrument shall be filed with the Securitization Trustee and a copy
thereof given to the Transferor and the Servicer.
Any separate trustee or co-trustee may at any time appoint the
Securitization Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Securitization Trust Agreement on its behalf and in its
name. If any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all of its estates, properties, rights,
remedies and trusts shall vest in and be exercised by the Securitization
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee. Notwithstanding anything to the contrary in this
Securitization Trust Agreement, the appointment of any separate trustee or
co-trustee shall not relieve the Securitization Trustee of its obligations
and duties under this Securitization Trust Agreement.
SECTION 6.11. REPRESENTATIONS AND WARRANTIES OF TRUSTEE.
The Securitization Trustee makes the following representations and
warranties on which the Transferor and Certificateholders may rely:
(i) ORGANIZATION AND GOOD STANDING. The Securitization Trustee is a
national banking association organized, existing and in good standing under
the laws of the United States of America.
(ii) POWER AND AUTHORITY. The Securitization Trustee has full power,
authority and right to execute, deliver and perform this Securitization
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Securitization Trust
Agreement.
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(iii) DUE EXECUTION. This Securitization Trust Agreement has been
duly executed and delivered by the Securitization Trustee.
(iv) ENFORCEABILITY. This Securitization Trust Agreement constitutes
the legal, valid and binding obligation of the Securitization Trustee,
enforceable against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity.
SECTION 6.12. TAX RETURNS.
The Securitization Trustee shall, at the direction of the Servicer and on
behalf of the Transferor, prepare or shall cause to be prepared any required
federal tax information returns (in a manner consistent with the treatment of
the Investor Certificates as indebtedness) and shall file and distribute such
forms as required by law. The Servicer shall prepare or cause to be prepared
any federal and state tax returns that may be required with respect to the
1997-A Securitization Trust or the Securitization Trust assets and shall
deliver any such returns to the Securitization Trustee for signature at least
five days prior to the date such returns are required by law to be filed.
SECTION 6.13. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
CERTIFICATES.
All rights of action and claims under this Securitization Trust Agreement
or the Certificates may be prosecuted and enforced by the Securitization
Trustee without the possession of any of the Certificates or the production
thereof in any proceeding relating thereto, and any such proceeding
instituted by the Securitization Trustee shall be brought in its own name as
trustee. Any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Securitization Trustee, its agents and counsel, be for the ratable benefit of
the Certificateholders in respect of which such judgment has been obtained.
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SECTION 6.14. SUIT FOR ENFORCEMENT.
If an Event of Servicing Termination shall occur and be continuing under
the Titling Trust Agreement, as supplemented by the 1997-A SUBI Servicing
Supplement with respect to the 1997-A SUBI Portfolio, the Securitization
Trustee, in its discretion may, subject to the provisions of Sections 6.01
and 6.02 hereof and Section 6.01(b) of the 1997-A SUBI Servicing Supplement,
proceed to protect and enforce its rights and the rights of the
Certificateholders under this Securitization Trust Agreement, the Titling
Trust Agreement and the 1997-A SUBI Servicing Supplement by a suit, action or
proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained herein or therein or in
aid of the execution of any power granted herein or therein or for the
enforcement of any other legal, equitable or other remedy as the
Securitization Trustee, being advised by counsel, shall deem most effectual
to protect and enforce any of the rights of the Securitization Trustee or the
Certificateholders.
SECTION 6.15. RIGHTS OF CERTIFICATEHOLDERS TO DIRECT TRUSTEE.
Holders of Investor Certificates evidencing not less than 25% of the
aggregate Percentage Interest shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Securitization Trustee under this Securitization Trust Agreement, or
exercising any trust or power conferred on the Securitization Trustee by this
Securitization Trust Agreement; PROVIDED, HOWEVER, that (a) if any greater
Percentage Interest is required to cause any action to be taken under the
Titling Trust Agreement or the 1997-A SUBI Supplement by the Securitization
Trustee in its capacity as a transferee of the 1997-A SUBI Certificate, the
greater Percentage Interest shall prevail; (b) subject to Sections 6.01 and
6.02, the Securitization Trustee shall have the right to decline to follow
any such direction if the Securitization Trustee being advised by counsel
determines that the action so directed may not lawfully be taken, or if the
Securitization Trustee in good faith shall determine that the proceedings so
directed would be illegal or subject it to personal liability or be unduly
prejudicial to the
51
rights of Certificateholders not parties to such direction; and (c) nothing
in this Securitization Trust Agreement shall impair the right of the
Securitization Trustee to take any action deemed proper by the Securitization
Trustee and which is not inconsistent with such direction by the
Certificateholders.
SECTION 6.16. NO PETITION.
The Securitization Trustee covenants and agrees that prior to the date
which is one year and one day after the last date upon which (a) each Class
of Investor Certificates has been paid in full, and (b) all obligations due
under any other Securitized Financing have been paid in full, the
Securitization Trustee will not institute against, or join any other Person
in instituting against the Transferor, TMCC, 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. The foregoing shall not limit the Securitization
Trustee's right to file any claim in or otherwise take actions with respect
to any such proceeding instituted by any Person not under such a constraint.
This Section shall survive the termination of this Securitization Trust
Agreement or the resignation or removal of the Securitization Trustee under
this Securitization Trust Agreement.
ARTICLE SEVEN
TERMINATION
SECTION 7.01. TERMINATION OF THE 1997-A SECURITIZATION TRUST.
(a) The 1997-A Securitization Trust and the respective obligations
and responsibilities of the Transferor and the Securitization Trustee shall
terminate upon the earliest of (i) the purchase as of any Distribution Date
by the Transferor of the corpus of the 1997-A Securitization Trust as
described in Section 7.02 (except that the Securitization Trust shall
continue solely for the limited purposes set forth in (b) and (c) below),
(ii) the day following the Distribution Date upon which all Investor
Certificates have been paid in full and after which there is no unreimbursed
Class A-1 Certificate Principal Loss Amount, Class
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A-2 Certificate Principal Loss Amount, Class A-3 Certificate Principal Loss
Amount, Class A-4 Certificate Principal Loss Amount, Class B Certificate
Principal Loss Amount, Class A-1 Certificate Principal Loss Interest Amount,
Class A-2 Certificate Principal Loss Interest Amount, Class A-4 Certificate
Principal Loss Interest Amount, Class A-3 Certificate Principal Loss Interest
Amount, Class B Certificate Principal Loss Interest Amount, Class B
Certificate Principal Carryover Shortfall or Class B Certificate Principal
Carryover Shortfall Interest Amount or (iii) the expiration, disposition or
termination of the 1997-A SUBI Interest; PROVIDED, HOWEVER, that in no event
shall the trust created by this Securitization Trust Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of the State of Arkansas, living on
the date of the Agreement. The Transferor shall promptly notify the
Securitization Trustee and each Rating Agency of any prospective termination
of the 1997-A Securitization Trust.
(b) Notice of any termination, specifying the Distribution Date upon
which the Certificateholders may surrender their Certificates to the
Securitization Trustee for payment of the final distribution and retirement
of the Certificates, shall be given promptly by the Securitization Trustee by
letter to Certificateholders mailed not earlier than the 15th day and not
later than the 30th day prior to the date on which such final distribution is
expected to occur specifying (i) the Distribution Date upon which final
payment of the Certificates shall be made upon presentation and surrender of
Certificates at the Corporate Trust Office or such other office of the
Securitization Trustee therein specified, (ii) the amount of any such final
payment and (iii) if applicable, that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the Corporate Trust Office
or such other office of the Securitization Trustee therein specified. The
Securitization Trustee shall give such notice to the Certificate Registrar
(if other than the Securitization Trustee) at the time such notice is given
to Certificateholders. In the event such notice is given, in the case of an
optional purchase of the Securitization Trust corpus pursuant to Section
7.02, the Transferor shall deposit the amount
53
specified in Section 7.02. Upon presentation and surrender of the
Certificates, the Securitization Trustee shall cause to be distributed to
Certificateholders so surrendering amounts distributable on such Distribution
Date pursuant to Section 3.01. No further interest will accrue with respect
to any Investor Certificate from and after the final Distribution Date with
respect thereto.
(c) In the event that all of the Certificateholders shall not have
surrendered their Certificates for retirement within six months after the
date specified in the above-mentioned written notice, the Securitization
Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for retirement and receive
the final distribution with respect thereto. If within one year after the
second notice all the Certificates shall not have been surrendered for
retirement, the Securitization Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that remain subject
to this Securitization Trust Agreement. Any funds remaining in the
Securitization Trust after exhaustion of such remedies shall be distributed
by the Securitization Trustee to the [United Way].
SECTION 7.02. OPTIONAL PURCHASE OF 1997-A SUBI INTEREST.
(a) On each Distribution Date following the last day of a Collection
Period as of which the Certificate Balance shall be less than or equal to ten
percent (10%) of the Initial Certificate Balance, the Transferor shall have
the option to purchase the Investor Certificateholders' interest in the
corpus of the 1997-A Securitization Trust. To exercise such option, the
Transferor shall notify the Securitization Trustee and the Servicer, in
writing, no later than the tenth day of the month preceding the month in
which the Distribution Date as of which such purchase is to be effected and
shall deposit in the 1997-A SUBI Collection Account an amount equal to the
greater of (i) the Aggregate Net Investment Value as of the last day of the
related Collection Period, and (ii) the sum of (A) the Certificate Balance
(B) the accrued and unpaid Class ▇-▇ ▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Class A-2 Interest Distributable Amount, Class A-3
Interest Distributable Amount, Class A-4 Interest Distributable Amount and
Class B Interest Distributable Amount, (C) any accrued and unpaid Class A-1
Interest Carryover Shortfall, Class A-2 Interest Carryover Shortfall, Class
A-3 Interest Carryover Shortfall, Class A-4 Interest Carryover Shortfall and
Class B Interest Carryover Shortfall, (D) any unpaid Class A-1 Certificate
Principal Loss Amount, unpaid Class A-2 Certificate Principal Loss Amount,
unpaid Class A-3 Certificate Principal Loss Amount, unpaid Class A-4
Certificate Principal Loss Amount, unpaid Class B Certificate Principal Loss
Amount and unpaid Class B Certificate Principal Carryover Shortfall, and (E)
any accrued and unpaid Class A-1 Certificate Principal Loss Interest Amount,
unpaid Class A-2 Certificate Principal Loss Interest Amount, unpaid Class A-3
Certificate Principal Loss Interest Amount, unpaid Class A-4 Certificate
Principal Loss Interest Amount, unpaid Class B Certificate Principal Loss
Interest Amount and Class B Certificate Principal Carryover Shortfall
Interest Amount through the day preceding the final Distribution Date. The
Transferor also shall pay to the Servicer the aggregate amount of any
unreimbursed Advances. Thereupon the Transferor shall succeed to all of the
Investor Certificateholders' interests in and to the 1997-A Securitization
Trust corpus.
(b) The Investor Certificateholders' interest in the corpus of the
Securitization Trust may only be purchased pursuant to this Section 7.02 if
the Securitization Trustee and each Rating Agency receives an Opinion of
Counsel from the Transferor's counsel to the effect that such purchase would
not constitute a fraudulent conveyance, or each Rating Agency is otherwise
satisfied (as evidenced by written notice from each to the Securitization
Trustee).
ARTICLE EIGHT
EARLY AMORTIZATION EVENTS
SECTION 8.01. EARLY AMORTIZATION EVENTS.
55
If any one of the following events shall occur during the Revolving
Period:
(a) failure on the part of the Servicer (i) to make any payment or
deposit required with respect to the 1997-A SUBI, the 1997-A SUBI Interest,
or the Investor Certificates under this Securitization Trust Agreement, the
Titling Trust Agreement or the 1997-A SUBI Supplement or the 1997-A SUBI
Servicing Supplement, on or before the date occurring five Business Days
after the payment or deposit is required to be made, or (ii) to deliver a
Servicer's Certificate within ten Business Days after any Determination Date,
which failure continues for three Business Days;
(b) failure on the part of the Transferor or the Servicer duly to
observe or perform in any material respect any other covenants or agreements
of the Transferor or the Servicer set forth in this Securitization Trust
Agreement, the Titling Trust Agreement, the 1997-A SUBI Supplement or the
1997-A SUBI Servicing Supplement, which failure materially and adversely
affects the rights of the holder of the 1997-A SUBI Interest or of the
Investor Certificateholders and which continues unremedied and continues to
affect materially and adversely the rights of the holder of the 1997-A SUBI
Interest or of the Investor Certificateholders for a period of 60 days after
the date on which written notice of such failure, requiring the same to be
remedied, is given (i) to the Transferor or the Servicer, as the case may be,
by the Securitization Trustee or the Titling Trustee, or (ii) to the
Transferor or the Servicer, as the case may be, and to the Securitization
Trustee by the Holders of Investor Certificates evidencing not less than 25%
of the aggregate Percentage Interest;
(c) any representation or warranty made by TMCC in the SUBI
Certificate Agreement, by the Transferor in this Securitization Trust
Agreement, or the representation and warranty made by the Servicer in Section
3.02( ) of the 1997-A SUBI Servicing Supplement or any certificate given
pursuant to Section 3.02( ) of the 1997-A SUBI Servicing Supplement, shall
prove to have been incorrect in any material respect when made or given, as a
result of which the interests of the holder of the
56
1997-A SUBI Interest or of the Investor Certificateholders are materially and
adversely affected and which continues to be incorrect in any material
respect and continues to affect materially and adversely affect the interests
of the holder of the 1997-A SUBI Interest or of the Certificateholders for a
period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied, is given (i) to TMCC, the Transferor or
the Servicer, as the case may be, by the Securitization Trustee or the
Titling Trustee, or (ii) to TMCC, the Transferor or the Servicer, as the case
may be, and to the Securitization Trustee by the Holders of Investor
Certificates evidencing not less than 25% of the aggregate Percentage
Interest; PROVIDED, HOWEVER, that an Early Amortization Event pursuant to
this subparagraph (c) shall not be deemed to have occurred hereunder if the
Servicer has made the deposit contemplated by Section of the 1997-A SUBI
Servicing Supplement and has reallocated the relevant 1997-A Contract and
1997-A Leased Vehicle to the UTI Portfolio within the time provided therefor;
(d) the Transferor shall file a petition commencing a voluntary case
under any chapter of the Federal bankruptcy laws; or the Transferor shall
file a petition or answer or consent seeking reorganization, arrangement,
adjustment, or composition under any other similar applicable Federal law, or
shall consent to the filing of any such petition, answer, or consent; or the
Transferor shall appoint, or consent to the appointment of a custodian,
receiver, liquidator, trustee, assignee, sequestrator or other similar
official in bankruptcy or insolvency of it or of any substantial part of its
property, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due;
(e) any order for relief against the Transferor shall have been
entered by a court having jurisdiction in the premises under any chapter of
the Federal bankruptcy laws; or a decree or order by a court having
jurisdiction in the premises shall have been entered approving as properly
filed a petition seeking reorganization, arrangement, adjustment, or
composition of the Transferor under any other similar applicable Federal law;
or a decree or order of a court having jurisdiction in the premises
57
for the appointment of a custodian, receiver, liquidator, trustee, assignee,
sequestrator or other similar official in bankruptcy or insolvency of the
Transferor or of any substantial part of its property, or for the winding up
or liquidation of its affairs, shall have been entered;
(f) any Lien, other than Liens permitted under this Securitization
Trust Agreement, the Titling Trust Agreement or the 1997-A SUBI Supplement or
the 1997-A SUBI Servicing Supplement shall be created on or extend to or
otherwise arise upon or burden the 1997-A SUBI Interest, the 1997-A SUBI
Certificate, or the 1997-A Contracts or 1997-A Leased Vehicles, or any part
thereof or any interest therein or the proceeds thereof, and not be released
or bonded over within 60 days thereafter;
(g) the Transferor, the 1997-A Securitization Trust or the Titling
Trust shall become subject to registration as an "investment company" under
the Investment Company Act;
(h) on the last calendar day of any calendar month (commencing
September 1997) the aggregate amount of Principal Collections collected
through the last day of the related Collection Period that have not been
reinvested in new 1997-A Contracts and 1997-A Leased Vehicles, as
contemplated by Section 3.02 of the 1997-A SUBI Servicing Supplement, exceeds
[$1,000,000];
(i) an Event of Servicing Termination has occurred; or
(j) on any Distribution Date the aggregate amount withdrawn from the
Reserve Fund and deposited in the 1997-A SUBI Collection Account on or prior
to such Distribution Date (without reference to any subsequent deposits to
the Reserve Fund from any source) exceeds $_________;
then (but in the case of any event described in subparagraph (a), (b), (c) or
(f) after any applicable grace period) an early amortization event (an "Early
Amortization Event") shall have occurred.
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SECTION 8.02. ADDITIONAL RIGHTS UPON THE OCCURRENCE OF CERTAIN EVENTS
(a) Following the occurrence of an Early Amortization Event
described in Section 8.01(d) or (e) (such event, an "Insolvency Event"), the
Transferor shall promptly give notice to the Securitization Trustee of such
Insolvency Event. Within 15 days of the receipt by the Securitization Trustee
of the notice, the Securitization Trustee may and, upon receipt of a notice
from Investor Certificateholders evidencing more than 51% of the aggregate
Percentage Interest of the Class A Certificates or 51% of the aggregate
Percentage Interests of the Class A Certificates and the Class B Certificates
(voting together as a single class), shall publish a notice in Authorized
Newspapers that an Insolvency Event has occurred and that the Securitization
Trustee intends to sell, dispose of or otherwise liquidate the 1997-A SUBI
Interest, the 1997-A SUBI Certificate and the other property of the 1997-A
Securitization Trust in a commercially reasonable manner. Following such
publication, the Securitization Trustee shall, unless otherwise prohibited by
applicable law from any such action, sell, dispose of, or otherwise liquidate
the 1997-A SUBI Interest, the 1997-A SUBI Certificate and the other property
of the 1997-A Securitization Trust, in a commercially reasonable manner and
on commercially reasonable terms, which shall include the solicitation of
competitive bids, and shall proceed to consummate the sale, liquidation or
disposition thereof as provided above with the highest bidder; PROVIDED,
HOWEVER, that such sale, disposition or other liquidation shall not be made
without the consent of all Holders of Investor Certificates if a net loss
would be realized. The Transferor and the Servicer shall be permitted to bid
for the 1997-A Securitization Trust property. The Securitization Trustee may
obtain a prior determination from the conservator, receiver, or trustee in
bankruptcy of the Transferor that the terms and manner of any proposed sale,
disposition or liquidation are commercially reasonable. The provisions of
Sections 8.01 and 8.02 shall not be deemed to be mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of the
1997-A SUBI Interest, the 1997-A SUBI
59
Certificate and the other property of the 1997-A Securitization Trust
pursuant to Section 8.02 (A) above, net of expenses incurred in such sale,
disposition or liquidation, shall be treated as Principal Collections and
Interest Collections received during the Amortization Period; PROVIDED that
such Principal Collections, will be distributed, first, on a PRO RATA basis,
to the Class A-1 Certificateholders, the Class A-2 Certificateholders, Class
A-3 Certificateholders and the Class A-4 Certificateholders based on their
respective Certificate Balances, and second, to the Class B
Certificateholders; FURTHER PROVIDED that the Servicer on behalf of the
Securitization Trustee shall determine conclusively without liability for
such determination the amount of such proceeds which are allocable to
Interest Collections and the amount of such proceeds which are allocable to
Principal Collections. On the day following the Distribution Date on which
such proceeds are distributed to the Investor Certificateholders, the 1997-A
Securitization Trust shall terminate.
ARTICLE NINE
MISCELLANEOUS PROVISIONS
SECTION 9.01. AMENDMENT.
(a) This Securitization Trust Agreement and the other Transaction
Documents may be amended by the respective parties thereto, without the
consent of any of the Certificateholders, (i) to cure any ambiguity, mistake
or error, (ii) to correct or supplement any provisions herein or therein that
may be inconsistent with any provisions hereof or thereof or with the
prospectus pursuant to which the Class A Certificates were offered, (iii) to
add, change or eliminate any other provisions hereof or thereof with respect
to matters or questions arising hereunder or thereunder that shall not be
inconsistent with the provisions hereof or thereof, or (iv) to add or amend
any provision therein in connection with permitting transfers of the Class B
Certificates; PROVIDED, HOWEVER, that in the case of clause (iii), any such
action shall not, in the good faith judgment or the parties hereto or
thereto, adversely affect in any material respect the interests of the
Certificateholders and
60
the Titling Trustee and the Securitization Trustee shall have received an
Opinion of Counsel to the effect that such action shall not affect the legal
interests or positions of the Certificateholders.
(b) This Securitization Trust Agreement and the other Transaction
Documents may also be amended from time to time by the respective parties
hereto or thereto including with respect to (i) changing the formula for
determining the Specified Reserve Fund Balance which change would result in a
decrease in the amount of the Specified Reserve Fund Balance, (ii) changing
the manner by which the Reserve Fund is funded, which changes could include
borrowings by the Transferor to fund all or a portion of the Reserve Fund
Initial Deposit (which borrowings would be payable from assets or cash flow
otherwise payable to the Transferor), (iii) changing the remittance schedule
for collection deposits in the 1997-A SUBI Collection Account, or (iv)
changing the definition of "Permitted Investments"), if either (A) the
Securitization Trustee has been furnished with a letter from each Rating
Agency to the effect that such amendment would not cause its then-current
rating of any Rated Certificate to be qualified, reduced or withdrawn, or (B)
the Securitization Trustee has received the consent of the Holders of
Investor Certificates representing not less than 51% of the aggregate
Percentage Interests (which consent of any Holder of an Investor Certificate
given pursuant to this Section or pursuant to any other provision of this
Securitization Trust Agreement shall be conclusive and binding on such Holder
and on all future Holders of such Investor Certificate and of any Investor
Certificate issued upon the transfer thereof or in exchange thereof or in
lieu thereof whether or not notation of such consent is made upon the
Investor Certificate); PROVIDED, HOWEVER, that no such amendment shall (x)
except as otherwise provided in Section 9.01(a), increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on the 1997-A SUBI or any 1997-A SUBI Certificate or distributions
that shall be required to be made on any Investor Certificate or the
applicable Certificate Rate or (y) reduce the aforesaid percentage of the
aggregate Percentage Interest of the Investor Certificates of each Class
required to consent to any such
61
amendment, without the consent of the Holders of all Certificates of such
Class then outstanding.
(c) The Securitization Trustee shall provide each Rating Agency
prior notice of any proposed amendment hereto and copies of an Opinion of
Counsel, if required pursuant to Section 9.01(a), whether or not such
amendment requires its approval. Any notice of any such amendment or
modification as to which notice is required to be given to any Rating Agency
shall contain both the substance and substantial form of the proposed
amendment or modification.
(d) Promptly after the execution of any such amendment or consent,
the Securitization Trustee shall furnish written notification of the
substance of such amendment or consent to each Certificateholder. The failure
to send such notification shall not affect the validity of such amendment. It
shall not be necessary for the consent of Certificateholders pursuant to
Section 9.01(b) to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing
the authorization by Certificateholders of the execution thereof shall be
subject to such reasonable requirements as the Securitization Trustee may
prescribe.
(e) Prior to the execution of any amendment to this Securitization
Trust Agreement, the Securitization Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment
is authorized or permitted by this Securitization Trust Agreement. The
Securitization Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Securitization Trustee's own rights, duties
or immunities under this Securitization Trust Agreement or otherwise.
SECTION 9.02. PROTECTION OF TITLE TO TRUST.
(a) The Transferor shall execute and file, or cause to be executed
and filed, such financing statements and such continuation and other
statements, all in such manner and in such
62
places as may be required by law fully to preserve, maintain and protect the
interest of the Certificateholders and the Securitization Trustee under this
Securitization Trust Agreement in the 1997-A SUBI Interest, the 1997-A SUBI
Certificate and in the proceeds thereof. The Transferor shall deliver (or
cause to be delivered) to the Securitization Trustee file-stamped copies of,
or filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) The Transferor shall not change its name, identity or corporate
structure in any manner that would, could or might make any financing
statement or continuation statement filed by the Transferor in accordance
with paragraph (a) above seriously misleading within the meaning of Section
9-402(7) of the UCC, unless it shall have given the Securitization Trustee
written notice thereof and shall have promptly filed appropriate amendments
to all previously filed financing statements or continuation statements.
(c) The Transferor shall give the Securitization Trustee prior
written notice of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly make any such
filing.
(d) The Transferor shall deliver to the Securitization Trustee
promptly after the execution and delivery of each amendment to this
Securitization Trust Agreement, an Opinion of Counsel either (i) stating
that, in the opinion of such Counsel, all financing statements and
continuation statements have been executed and filed that are necessary fully
to preserve and protect the interest of the Securitization Trustee in the
1997-A SUBI Interest, and reciting the details of such filings or referring
to prior Opinions of Counsel in which such details are given, or (ii) stating
that, in the opinion of such Counsel, no such action is necessary to preserve
and protect such interest.
(e) The Transferor shall, to the extent required by applicable law,
cause the Class A-1 Certificates, the Class A-2
63
Certificates, the Class A-3 Certificates and the Class A-4 Certificates to be
registered with the Commission pursuant to Section 12(b) or Section 12(g) of
the Exchange Act within the time periods specified in such Sections.
SECTION 9.03. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Securitization Trust Agreement or the 1997-A
Securitization Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the
1997-A Securitization Trust, nor otherwise affect the rights, obligations and
liabilities of the parties to this Securitization Trust Agreement or any of
them.
(b) No Certificateholder shall have any right to vote (except as
provided in Section 9.01) or in any manner otherwise control the operation
and management of the 1997-A Securitization Trust, or the obligations of the
parties to this Securitization Trust Agreement, nor shall anything set forth
in this Securitization Trust Agreement, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action pursuant to any provision of this Securitization Trust Agreement.
(c) No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Securitization Trust Agreement to
institute any suit, action, or proceeding in equity or at law upon or under
or with respect to this Securitization Trust Agreement or any other
Transaction Document, unless such Holder previously shall have given to the
Securitization Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Investor
Certificates evidencing not less than 25% of the aggregate Percentage
Interest, shall have made written request upon the Securitization Trustee to
institute such action, suit or proceeding in its own name as Trustee under
this
64
Securitization Trust Agreement and shall have offered to the Securitization
Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the
Securitization Trustee, for 30 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit, or proceeding and during such 30-day period, no request or
waiver inconsistent with such written request has been given to the
Securitization Trustee pursuant to this Section; it being understood and
intended, and being expressly covenanted by each Certificateholder with every
other Certificateholder and the Securitization Trustee, that no one or more
Holders of Certificates shall have any right in any manner whatever by virtue
or by availing itself or themselves of any provisions of this Securitization
Trust Agreement or any other Transaction Document to affect, disturb, or
prejudice the rights of the Holders of any other of the Certificates, or to
obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under this Securitization Trust Agreement or
any other Transaction Document, except in the manner provided in this
Securitization Trust Agreement and for the equal, ratable, and common benefit
of all Certificateholders. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and the
Securitization Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 9.04. GOVERNING LAW.
THIS SECURITIZATION TRUST AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD
TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 9.05. NOTICES.
All demands, notices and communications under this Securitization Trust
Agreement shall be in writing, personally delivered or mailed by certified mail,
return receipt requested, and shall be deemed to have been duly given upon
receipt (i) in the case of the Transferor, to the agent for service as specified
65
in this Securitization Trust Agreement, or at such other address as shall be
designated by the Transferor in a written notice to the Securitization
Trustee; (ii) in the case of the Securitization Trustee, at the Corporate
Trust Office; (iii) in the case of Standard & Poor's, at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance
Department; and (iv) in the case of ▇▇▇▇▇'▇, at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ABS Monitoring Department. Any notice required or
permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in
this Securitization Trust Agreement shall be conclusively presumed to have
been duly given, whether or not the Certificateholder shall receive such
notice.
SECTION 9.06. SEVERABILITY OF PROVISIONS; COUNTERPARTS.
If any one or more of the covenants, agreements, provisions or terms of
this Securitization Trust 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
Securitization Trust Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Securitization Trust Agreement or
of the Certificates or the rights of the Holders thereof.
This Securitization Trust Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and all of which counterparts shall constitute but one and the same
instrument.
SECTION 9.07. ASSIGNMENT.
Notwithstanding anything to the contrary contained in this Securitization
Trust Agreement, except as provided in Section 5.03, this Securitization Trust
Agreement may not be assigned by the Transferor without the prior written
consent of Holders of Investor Certificates evidencing not less than 51% of the
66
aggregate Percentage Interest. The Transferor shall provide a copy of any
such assignment to each Rating Agency.
SECTION 9.08. CERTIFICATES NONASSESSABLE AND FULLY PAID.
Except as provided in Section 5.02(b) with regard to the Transferor,
Certificateholders shall not be personally liable for obligations of the
1997-A Securitization Trust. The interests represented by the Certificates
shall be nonassessable for any losses or expenses of the 1997-A
Securitization Trust or for any reason whatsoever, and, upon the execution
and authentication thereof by the Securitization Trustee pursuant to Section
4.02, 4.03 or 4.04, the Certificates are and shall be deemed fully paid.
ARTICLE TEN
AGENT FOR SERVICE
SECTION 10.01. AGENT FOR SERVICE OF TRANSFEROR.
1. AGENT FOR SERVICE OF TRANSFEROR
The agent for service of process for the Transferor shall be its
Treasurer, at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Treasury Manager (fax: ▇▇▇-▇▇▇-▇▇▇▇).
SECTION 10.02. AGENT OF TRUSTEE.
The Securitization Trustee shall maintain an office or offices or agency or
agencies where notices and demands to or upon the Securitization Trustee in
respect of the Certificates and this Securitization Trust Agreement may be
served. The initial such office shall be the Corporate Trust Office. The
Securitization Trustee shall give prompt written notice to the Transferor, the
Servicer and to Certificateholders of any change in the location of the
Certificate Register or any such office or agency. Certificates shall be
surrendered for transfer or exchange not at this office, but as set forth in
Section 4.07.
[SIGNATURES ON NEXT PAGE]
67
IN WITNESS WHEREOF, the parties have caused this Securitization Trust
Agreement to be duly executed by their respective officers as of the day and
year first above written.
TOYOTA LEASING, INC.
as Transferor
By: ___________________________________
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION,
as Securitization Trustee
By: ___________________________________
Name:
Title:
68
EXHIBIT A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TOYOTA AUTO LEASE TRUST 1997-A
_____% AUTOMOBILE LEASE ASSET BACKED CERTIFICATE, CLASS A-1
evidencing a percentage interest in the distributions allocable to the Investor
Certificates, as defined below, evidencing an undivided interest in the
Securitization Trust, as defined below, the property of which includes, among
other things, a special unit of beneficial interest (the "1997-A SUBI Interest")
in Toyota Lease Trust, a Delaware business trust, which SUBI Interest represents
a beneficial interest in a pool of retail lease contracts for new and used
automobiles and light duty trucks (and the related automobiles and light-duty
trucks) entered into by various automobile and light duty truck dealers pursuant
to contractual arrangements with Toyota Motor Credit Corporation, and which
1997-A SUBI Interest was originally issued to Toyota Leasing, Inc. and then to
the Securitization Trust.
(This Certificate does not represent an obligation of, or an interest in, Toyota
Leasing, Inc., Toyota Motor Credit Corporation, the Titling Trustee, the
Securitization Trustee or any of their respective affiliates.)
Aggregate Denominations of
all Class A-1 Certificates: CUSIP #
$_______________
A-1-1
Number A-1- Denomination: $____________
A-1-2
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
_______________________________ ($____________) nonassessable, fully-paid,
fractional undivided interest in the Toyota Auto Lease Trust 1997-A (the
"Trust") formed by Toyota Leasing, Inc., a Delaware corporation, as
Transferor (the "Transferor"). The Securitization Trust was created pursuant
to a Securitization Trust Agreement dated as of 1, 1997 (the
"Agreement"), between the Transferor and First Bank National Association, a
national banking association, as trustee (the "Trustee"). A summary of
certain of the pertinent provisions of the Agreement is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates issued under
the Agreement and designated as "Toyota Auto Lease Trust 1997-A _____%
Automobile Lease Asset Backed Certificates, Class 1997 A-1" (the "Class A-1
Certificates"). Also issued under the Agreement are Certificates designated as
"Toyota Auto Lease Trust 1997-A _____% Automobile Lease Asset Backed
Certificates, Class A-2" (the "Class A-2 Certificates"), Certificates designated
as "Toyota Auto Lease Trust 1997-A _____% Automobile Lease Asset Backed
Certificates, Class A-3" (the "Class A-3 Certificates", Certificates designated
as "Toyota Auto Lease Trust 1997-A __% Automobile Lease Asset Backed
Certificates, Class A-4" (the "Class A-4 Certificates") and, together with the
Class A-1 Certificates, the Class A-2 Certificates and Class A-3 Certificates,
the "Class A Certificates"), Certificates designated as "Toyota Auto Lease Trust
1997-A _____% Automobile Lease Asset Backed Certificates, Class B" (the "Class B
Certificates" and, together with the Class A Certificates, the "Investor
Certificates") and a Certificate designated as the "Toyota Auto Lease Trust
1997-A Asset Backed Transferor Certificate" (the "Transferor Certificate" and,
together with the Investor Certificates, the "Certificates"). The Class B
Certificates are subordinated to the Class A Certificates and the Transferor
Certificate is subordinated to the Investor Certificates to the extent described
in the Agreement. This Class A-1 Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class A-1 Certificate by
A-1-3
virtue of the acceptance hereof assents and by which such Holder is bound.
The property of the Securitization Trust includes, among other things, a
special unit of beneficial interest (the "1997-A SUBI Interest") in Toyota
Lease Trust, a Delaware business trust (the "Titling Trust"), which 1997-A
SUBI Interest represents a beneficial interest in a pool of retail automobile
and light duty truck lease contracts ("Contracts") and the new and used
automobiles and light duty trucks leased thereby ("Leased Vehicles") (such
pool of Contracts and Leased Vehicles, the "1997-A SUBI Portfolio") entered
into by various automobile and light duty truck dealers pursuant to
contractual arrangements with Toyota Motor Credit Corporation, which also
acts as servicer (in that capacity, the "Servicer") of the 1997-A SUBI
Portfolio.
Under the Agreement, there will be distributed on the 25th day of each
month or, if such 25th day is not a Business Day, the next succeeding
Business Day (each, a "Distribution Date"), commencing on __________ 25,
1997, to the Person in whose name this Class A-1 Certificate is registered at
the close of business on the last calendar day immediately preceding the
related Distribution Date or, if Definitive Certificates are issued, the last
day of the immediately preceding calendar month (each a "Record Date"), such
Class A-1 Certificateholder's percentage interest in (i) the Class A-1
Distributable Amount for such Distribution Date and (ii) the amount of any
repayment of any outstanding Class A-1 Interest Carryover Shortfall, Class
A-1 Loss Amounts, Class A-1 Certificate Principal Loss Amounts and Class A-1
Certificate Principal Loss Interest Amounts being made on such Distribution
Date, all to the extent and as more specifically set forth in the Agreement.
To the extent provided in the Agreement, no principal payments shall be made
in respect of the Class A-2 Certificates until the Class A-1 Certificates
have been paid in full, and no principal payments shall be made in respect of
the Class A-3 Certificates or the Class B Certificates until the Class A-2
Certificates have been paid in full.
Distributions on this Class A-1 Certificate will be made by the
Securitization Trustee by check mailed to the Class ▇-▇
▇-▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ of record in the Certificate Register without the
presentation or surrender of this Class A-1 Certificate or the making of any
notation hereon except that with respect to Class A-1 Certificates registered
in the name of Cede & Co., the nominee for The Depository Trust Company,
distributions will be made by wire transfer of immediately available funds.
Except as otherwise provided in the Agreement and notwithstanding the
foregoing, the final distribution on this Class A-1 Certificate will be made
after due notice by the Securitization Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class A-1
Certificate at the Corporate Trust Office of the Securitization Trustee.
It is the intention of the Transferor and the Holders of Investor
Certificates that the Investor Certificates will be indebtedness for federal,
state and local income and franchise tax purposes and for purposes of any
other tax imposed on or measured by income. The Transferor, the
Securitization Trustee and the Holder of this Certificate (or Certificate
Owner) by acceptance of this Certificate (or, in the case of a Certificate
Owner, by virtue of such Certificate Owner's acquisition of a beneficial
interest herein) agree to treat the Investor Certificates (or beneficial
interests therein), for purposes of federal, state and local income or
franchise taxes and any other tax imposed on or measured by income, as
indebtedness and to report the transactions contemplated by the Agreement on
all applicable tax returns in a manner consistent with such treatment. Each
Holder of this Certificate agrees that it will cause any Certificate Owner
acquiring an interest in this Certificate through it to comply with the
Agreement as to treatment as indebtedness for federal, state and local income
and franchise tax purposes and for purposes of any other tax imposed on or
measured by income.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of such Certificate Owner's acquisition
of a beneficial interest herein) waives any claim to any proceeds or assets
of the Titling Trustee and to all assets of the Titling Trust other than
those from time to time included in the 1997-A SUBI Assets and those proceeds
or assets derived from or earned by such 1997-A SUBI Assets.
A-1-5
In the event that, notwithstanding the statement of intentions and
undertakings set forth in SECTION 4.12(a) of the Agreement and herein, it is
finally determined that the Class A-1 Certificates do not evidence
indebtedness of the Transferor for all income and franchise tax purposes, but
rather represent an equity interest in the assets of the Securitization
Trust, then the Holder (and each Certificate Owner hereof with respect hereto
by virtue of acquiring a beneficial interest herein), agrees (i) to treat
such Certificates, together with the Transferor Certificate, as representing
an interest in a partnership for all tax purposes, (ii) to treat all payments
in respect of such Certificates (to the extent not a return of capital) as a
"guaranteed payment" thereon made pursuant to Section 707(c) of the Code, and
(iii) to allocate all other items of income, gain, deduction, loss or credit
with respect to the assets and operations of the Securitization Trust to the
Transferor.
The Certificates do not represent an obligation of, or an interest in,
the Transferor, the Servicer, the Titling Trust, the Titling Trustee, the
Securitization Trustee or any of their respective affiliates. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the 1997-A SUBI Interest and 1997-A SUBI Certificate
and certain monies on deposit in the Reserve Fund and in certain other
accounts established for the benefit of the Certificateholders, in each case
to the extent and as more specifically set forth in the Agreement. A copy of
the Agreement may be examined during normal business hours at the Corporate
Trust Office of the Securitization Trustee, and at such other places, if any,
designated by the Securitization Trustee, by any Certificateholder upon
request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement
at any time by the Transferor and the Securitization Trustee. In certain
limited circumstances, the Agreement may only be amended with the consent of
the Holders of Investor Certificates evidencing not less than 51% of the
aggregate Percentage Interest of all Investor Certificates, voting together
as a single class. Any such
A-1-6
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and on all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the Corporate Trust Office of the Securitization Trustee in its capacity as
Certificate Registrar, or at the office of the agent of the Securitization
Trustee in its capacity as Certificate Registrar, who shall initially be
First Trust of New York, National Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in the Borough of Manhattan, the City of New York,
or at the appropriate office of any successor Certificate Registrar,
accompanied by a written instrument of transfer in form satisfactory to the
Securitization Trustee and the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Class A-1 Certificates of authorized denominations
and of a like aggregate fractional undivided interest will be issued to the
designated transferee.
The Class A-1 Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class A-1 Certificate in a smaller minimum denomination
representing any remaining portion of the Initial Class A-1 Certificate
Balance). As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class, of authorized denominations of a like aggregate principal amount,
as requested by the Holder surrendering the same. No service charge will be
made for any such registration of transfer or exchange, but the
Securitization Trustee may require payment of a sum sufficient to cover any
tax or governmental charges payable in connection therewith.
Prior to due presentation of this Certificate for registration of
transfer, the Securitization Trustee, the
A-1-7
Certificate Registrar and any of their respective agents may treat the Person
in whose name this Class A-1 Certificate is registered as the owner hereof
for the purpose of receiving distributions and for all other purposes, and
neither the Securitization Trustee, the Certificate Registrar nor any such
agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them
pursuant to the Agreement and the disposition of all property held as part of
the Securitization Trust. The Transferor may at its option purchase the
corpus of the Securitization Trust at a price specified in the Agreement, and
such purchase of the 1997-A SUBI Interest and 1997-A SUBI Certificate and
other property of the Securitization Trust will effect early retirement of
the Certificates; PROVIDED, HOWEVER, such right of purchase is exercisable
only on the Distribution Date following the last day of a Collection Period
as of which the Certificate Balance shall be less than or equal to ten
percent (10%) of the Initial Certificate Balance.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of acquiring a beneficial interest
herein) covenants and agrees that prior to the date which is one year and one
day after the last date upon which (a) each Class of Investor Certificates
has been paid in full, and (b) all obligations due under any other
Securitized Financing have been paid in full, the Holder and/or Certificate
Owner will not institute against, or join any other Person in instituting
against the Transferor, Toyota Motor Credit Corporation, the Securitization
Trust, 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. The
foregoing shall not limit the Holder's and/or Certificate Owner's right to
file any claim in or otherwise take actions with respect to any such
proceeding instituted by any Person not under such a constraint. This
non-petition covenant shall survive the termination of the Agreement.
A-1-8
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Securitization Trustee, by manual signature,
this Class A-1 Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Transferor has caused this Class A-1 Certificate
to be duly executed.
Dated: __________ __, 199_
TOYOTA LEASING, INC.,
By:________________________________
Authorized Officer
A-1-9
This is one of the Class A-1 Certificates referred
to in the within-mentioned Agreement.
FIRST BANK NATIONAL ASSOCIATION, as
Trustee
By:________________________________
A-1-10
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
_________________________________________________________________
(Please print or typewrite name and address, including postal zip code, of
assignee)
_________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_________________________________________________________________
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
_____________________________*
Signature Guaranteed:
_____________________________*
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be guaranteed by an "eligible guarantor institution" meeting the requirements
of the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee
A-1-11
program" as may be determined by the Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TOYOTA AUTO LEASE TRUST 1997-A
_____% AUTOMOBILE LEASE ASSET BACKED CERTIFICATE, CLASS A-2
evidencing a percentage interest in the distributions allocable to the
Investor Certificates, as defined below, evidencing an undivided interest in
the Securitization Trust, as defined below, the property of which includes,
among other things, a special unit of beneficial interest (the "1997-A SUBI
Interest") in Toyota Lease Trust, a Delaware business trust, which SUBI
Interest represents a beneficial interest in a pool of retail lease contracts
for new and used automobiles and light duty trucks (and the related
automobiles and light-duty trucks) entered into by various automobile and
light duty truck dealers pursuant to contractual arrangements with Toyota
Motor Credit Corporation, and which 1997-A SUBI Interest was originally
issued to Toyota Leasing, Inc. and then to the Securitization Trust.
(This Certificate does not represent an obligation of, or an interest in,
Toyota Leasing, Inc., Toyota Motor Credit Corporation, the Titling Trustee,
the Securitization Trustee or any of their respective affiliates.)
Aggregate Denominations of
all Class A-2 Certificates: CUSIP #
$________________
A-2-1
Number A-2-__ Denomination: $__________
A-2-2
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
____________________________ ($__________) nonassessable, fully-paid,
fractional undivided interest in the Toyota Auto Lease Trust 1997-A (the
"Trust") formed by Toyota Leasing, Inc., a Delaware corporation, as
Transferor (the "Transferor"). The Securitization Trust was created pursuant
to a Securitization Trust Agreement dated as of 1, 1997 (the
"Agreement"), between the Transferor and First Bank National Association, a
national banking association, as trustee (the "Trustee"). A summary of
certain of the pertinent provisions of the Agreement is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates issued under
the Agreement and designated as "Toyota Auto Lease Trust 1997-A _____%
Automobile Lease Asset Backed Certificates, Class A-2" (the "Class A-2
Certificates"). Also issued under the Agreement are Certificates designated
as "Toyota Auto Lease Trust 1997-A _____% Automobile Lease Asset Backed
Certificates, Class A-1" (the "Class A-1 Certificates"), Certificates
designated as "Toyota Auto Lease Trust 1997-A _____% Automobile Lease Asset
Backed Certificates, Class A-3" (the "Class A-3 Certificates"), Certificates
designated as "Toyota Auto Lease Trust 1997-A __% Automobile Lease Asset
Backed Certificates, Class A-4" (the "Class A-4 Certificates" and, together
with the Class A-2 Certificates, the Class A-3 Certificates and the Class A-1
Certificates, the "Class A Certificates"), Certificates designated as "Toyota
Auto Lease Trust 1997-A _____% Automobile Lease Asset Backed Certificates,
Class B" (the "Class B Certificates" and, together with the Class A
Certificates, the "Investor Certificates") and a Certificate designated as
the "Toyota Auto Lease Trust 1997-A Asset Backed Transferor Certificate" (the
"Transferor Certificate" and, together with the Investor Certificates, the
"Certificates"). The Class B Certificates are subordinated to the Class A
Certificates and the Transferor Certificate is subordinated to the Investor
Certificates to the extent described in the Agreement. This Class A-2
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which
A-2-3
Agreement the Holder of this Class A-2 Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
The property of the Securitization Trust includes, among other things, a
special unit of beneficial interest (the "1997-A SUBI Interest") in Toyota
Lease Trust, a Delaware business trust (the "Titling Trust"), which 1997-A
SUBI Interest represents a beneficial interest in a pool of retail automobile
and light duty truck lease contracts ("Contracts") and the new and used
automobiles and light duty trucks leased thereby ("Leased Vehicles") (such
pool of Contracts and Leased Vehicles; the "1997-A SUBI Portfolio") entered
into by various automobile and light duty truck dealers pursuant to
contractual arrangements with Toyota Motor Credit Corporation, which also
acts as servicer (in that capacity, the "Servicer") of the 1997-A SUBI
Portfolio.
Under the Agreement, there will be distributed on the 25th day of each
month or, if such 25th day is not a Business Day, the next succeeding
Business Day (each, a "Distribution Date"), commencing on __________ 25,
1997, to the Person in whose name this Class A-2 Certificate is registered at
the close of business on the last calendar day immediately preceding the
related Distribution Date or, if Definitive Certificates are issued, the last
day of the immediately preceding calendar month (each a "Record Date"), such
Class A-2 Certificateholder's percentage interest in (i) the Class A-2
Distributable Amount for such Distribution Date and (ii) the amount of any
repayment of any outstanding Class A-2 Interest Carryover Shortfall, Class
A-2 Loss Amounts, Class A-2 Certificate Principal Loss Amounts and Class A-2
Certificate Principal Loss Interest Amounts being made on such Distribution
Date, all to the extent and as more specifically set forth in the Agreement.
To the extent provided in the Agreement, no principal payments shall be made
in respect of the Class A-2 Certificates until the Class A-1 Certificates
have been paid in full, and no principal payments shall be made in respect of
the Class A-3 Certificates or the Class B Certificates until the Class A-2
Certificates have been paid in full.
Distributions on this Class A-2 Certificate will be made by the
Securitization Trustee by check mailed to the Class ▇-▇
▇-▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ of record in the Certificate Register without the
presentation or surrender of this Class A-2 Certificate or the making of any
notation hereon except that with respect to Class A-2 Certificates registered
in the name of Cede & Co., the nominee for The Depository Trust Company,
distributions will be made by wire transfer of immediately available funds.
Except as otherwise provided in the Agreement and notwithstanding the
foregoing, the final distribution on this Class A-2 Certificate will be made
after due notice by the Securitization Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class A-2
Certificate at the Corporate Trust Office of the Securitization Trustee.
It is the intention of the Transferor and the Holders of Investor
Certificates that the Investor Certificates will be indebtedness for federal,
state and local income and franchise tax purposes and for purposes of any
other tax imposed on or measured by income. The Transferor, the
Securitization Trustee and the Holder of this Certificate (or Certificate
Owner) by acceptance of this Certificate (or, in the case of a Certificate
Owner, by virtue of such Certificate Owner's acquisition of a beneficial
interest herein) agree to treat the Investor Certificates (or beneficial
interest therein), for purposes of federal, state and local income or
franchise taxes and any other tax imposed on or measured by income, as
indebtedness and to report the transactions contemplated by the Agreement on
all applicable tax returns in a manner consistent with such treatment. Each
Holder of this Certificate agrees that it will cause any Certificate Owner
acquiring an interest in this Certificate through it to comply with the
Agreement as to treatment as indebtedness for federal, state and local income
and franchise tax purposes and for purposes of any other tax imposed on or
measured by income.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of such Certificate Owner's acquisition
of a beneficial interest herein) waives any claim to any proceeds or assets
of the Titling Trustee and to all assets of the Titling Trust other than
those from time to time included in the 1997-A SUBI Assets and those proceeds
or assets derived from or earned by such 1997-A SUBI Assets.
A-2-5
In the event that, notwithstanding the statement of intentions and
undertakings set forth in SECTION 4.12(a) of the Agreement and herein, it is
finally determined that the Class A-2 Certificates do not evidence
indebtedness of the Transferor for all income and franchise tax purposes, but
rather represent an equity interest in the assets of the Securitization
Trust, then the Holder (and each Certificate Owner hereof with respect hereto
by virtue of acquiring a beneficial interest herein), agrees (i) to treat
such Certificates, together with the Transferor Certificate, as representing
an interest in a partnership for all tax purposes, (ii) to treat all payments
in respect of such Certificates (to the extent not a return of capital) as a
"guaranteed payment" thereon made pursuant to Section 707(c) of the Code, and
(iii) to allocate all other items of income, gain, deduction, loss or credit
with respect to the assets and operations of the Securitization Trust to the
Transferor.
The Certificates do not represent an obligation of, or an interest in,
the Transferor, the Servicer, the Titling Trust, the Titling Trustee, the
Securitization Trustee or any of their respective affiliates. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the 1997-A SUBI Interest and 1997-A SUBI Certificate
and certain monies on deposit in the Reserve Fund and in certain other
accounts established for the benefit of the Certificateholders, in each case
to the extent and as more specifically set forth in the Agreement. A copy of
the Agreement may be examined during normal business hours at the Corporate
Trust Office of the Securitization Trustee, and at such other places, if any,
designated by the Securitization Trustee, by any Certificateholder upon
request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement
at any time by the Transferor and the Securitization Trustee. In certain
limited circumstances, the Agreement may only be amended with the consent of
the Holders of Investor Certificates evidencing not less than 51% of the
aggregate Percentage Interest of all Investor Certificates, voting together
as a single class. Any such
A-2-6
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and on all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the Corporate Trust Office of the Securitization Trustee in its capacity as
Certificate Registrar, or at the office of the agent of the Securitization
Trustee in its capacity as Certificate Registrar, who shall initially be
First Trust of New York, National Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in the Borough of Manhattan, the City of New York,
or at the appropriate office of any successor Certificate Registrar,
accompanied by a written instrument of transfer in form satisfactory to the
Securitization Trustee and the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Class A-2 Certificates of authorized denominations
and of a like aggregate fractional undivided interest will be issued to the
designated transferee.
The Class A-2 Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class A-2 Certificate in a smaller minimum denomination
representing any remaining portion of the Initial Class A-2 Certificate
Balance). As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class, of authorized denominations of a like aggregate principal amount,
as requested by the Holder surrendering the same. No service charge will be
made for any such registration of transfer or exchange, but the
Securitization Trustee may require payment of a sum sufficient to cover any
tax or governmental charges payable in connection therewith.
Prior to due presentation of this Certificate for registration of
transfer, the Securitization Trustee, the
A-2-7
Certificate Registrar and any of their respective agents may treat the Person
in whose name this Class A-2 Certificate is registered as the owner hereof
for the purpose of receiving distributions and for all other purposes, and
neither the Securitization Trustee, the Certificate Registrar nor any such
agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them
pursuant to the Agreement and the disposition of all property held as part of
the Securitization Trust. The Transferor may at its option purchase the
corpus of the Securitization Trust at a price specified in the Agreement, and
such purchase of the 1997-A SUBI Interest and 1997-A SUBI Certificate and
other property of the Securitization Trust will effect early retirement of
the Certificates; PROVIDED, HOWEVER, such right of purchase is exercisable
only on the Distribution Date following the last day of a Collection Period
as of which the Certificate Balance shall be less than or equal to ten
percent (10%) of the Initial Certificate Balance.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of acquiring a beneficial interest
herein) covenants and agrees that prior to the date which is one year and one
day after the last date upon which (a) each Class of Investor Certificates
has been paid in full, and (b) all obligations due under any other
Securitized Financing have been paid in full, the Holder and/or Certificate
Owner will not institute against, or join any other Person in instituting
against the Transferor, Toyota Motor Credit Corporation, the Securitization
Trust, 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. The
foregoing shall not limit the Holder's and/or Certificate Owner's right to
file any claim in or otherwise take actions with respect to any such
proceeding instituted by any Person not under such a constraint. This
non-petition covenant shall survive the termination of the Agreement.
A-2-8
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Securitization Trustee, by manual signature, this
Class A-2 Certificate shall not entitle the Holder hereof to any benefit under
the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Transferor has caused this Class A-2 Certificate to
be duly executed.
Dated: __________ __, 199_
TOYOTA LEASING INC.
By:____________________________________
Authorized Officer
A-2-9
This is one of the Class A-2 Certificates referred
to in the within-mentioned Agreement.
FIRST BANK NATIONAL ASSOCIATION, as
Trustee
By:____________________________________
A-2-10
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or typewrite name and address, including postal zip code, of
assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
________________________________________________________________________________
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
________________________________________*
Signature Guaranteed:
________________________________________*
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be guaranteed by an "eligible guarantor institution" meeting the requirements
of the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee
A-2-11
program" as may be determined by the Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TOYOTA AUTO LEASE TRUST 1997-A
_____% AUTOMOBILE LEASE ASSET BACKED CERTIFICATE, CLASS A-3
evidencing a percentage interest in the distributions allocable to the Investor
Certificates, as defined below, evidencing an undivided interest in the
Securitization Trust, as defined below, the property of which includes, among
other things, a special unit of beneficial interest (the "1997-A SUBI Interest")
in Toyota Lease Trust, a Delaware business trust, which SUBI Interest represents
a beneficial interest in a pool of retail lease contracts for new and used
automobiles and light duty trucks (and the related automobiles and light-duty
trucks) entered into by various automobile and light duty truck dealers pursuant
to contractual arrangements with Toyota Motor Credit Corporation, and which
1997-A SUBI Interest was originally issued to Toyota Leasing, Inc. and then to
the Securitization Trust.
(This Certificate does not represent an obligation of, or an interest in, Toyota
Leasing, Inc., Toyota Motor Credit Corporation, the Titling Trustee, the
Securitization Trustee or any of their respective affiliates.)
Aggregate Denominations of
all Class A-3 Certificates: CUSIP #
$______________
A-3-1
Number A-3-__ Denomination: $____________
A-3-2
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
_______________________________ ($____________) nonassessable, fully-paid,
fractional undivided interest in the Toyota Auto Lease Trust 1997-A (the
"Trust") formed by Toyota Leasing, Inc., a Delaware corporation, as Transferor
(the "Transferor"). The Securitization Trust was created pursuant to a
Securitization Trust Agreement dated as of __________ 1, 1997 (the "Agreement"),
between the Transferor and First Bank National Association, a national banking
association, as trustee (the "Trustee"). A summary of certain of the pertinent
provisions of the Agreement is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Agreement.
This Certificate is one of the duly authorized Certificates issued under
the Agreement and designated as "Toyota Auto Lease Trust 1997-A _____%
Automobile Lease Asset Backed Certificates, Class A-3" (the "Class A-3
Certificates"). Also issued under the Agreement are Certificates designated as
"Toyota Auto Lease Trust 1997-A _____% Automobile Lease Asset Backed
Certificates, Class A-1" (the "Class A-1 Certificates"), Certificates
designated as "Toyota Auto Lease Trust 1997-A_____% Automobile Lease Asset
Backed Certificates, Class A-2" (the "Class A-2 Certificates"), Certificates
designated as "Toyota Auto Lease Trust 1997-A __% Automobile Lease Asset Backed
Certificates, Class A-4 (the "Class A-4 Certificates" and, together with the
Class A-3 Certificates, the Class A-2 Certificates and the Class A-1
Certificates, the "Class A Certificates"), Certificates designated as "Toyota
Auto Lease Trust 1997-A _____% Automobile Lease Asset Backed Certificates, Class
B" (the "Class B Certificates" and, together with the Class A Certificates, the
"Investor Certificates") and a Certificate designated as the "Toyota Auto Lease
Trust 1997-A Asset Backed Transferor Certificate" (the "Transferor Certificate"
and, together with the Investor Certificates, the "Certificates"). The Class B
Certificates are subordinated to the Class A Certificates and the Transferor
Certificate is subordinated to the Investor Certificates to the extent described
in the Agreement. This Class A-3 Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class A-3
A-3-3
Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
The property of the Securitization Trust includes, among other things, a
special unit of beneficial interest (the "1997-A SUBI Interest") in Toyota Least
Trust, a Delaware business trust (the "Titling Trust"), which 1997-A SUBI
Interest represents a beneficial interest in a pool of retail automobile and
light duty truck lease contracts ("Contracts") and the new and used automobiles
and light duty trucks leased thereby ("Leased Vehicles") (such pool of Contracts
and Leased Vehicles; the "1997-A SUBI Portfolio") entered into by various
automobile and light duty truck dealers pursuant to contractual arrangements
with Toyota Motor Credit Corporation, which also acts as servicer (in that
capacity, the "Servicer") of the 1997-A SUBI Portfolio.
Under the Agreement, there will be distributed on the 25th day of each
month or, if such 25th day is not a Business Day, the next succeeding Business
Day (each, a "Distribution Date"), commencing on __________ 25, 1997, to the
Person in whose name this Class A-3 Certificate is registered at the close of
business on the last calendar day immediately preceding the related Distribution
Date or, if Definitive Certificates are issued, the last day of the immediately
preceding calendar month (each a "Record Date"), such Class A-3
Certificateholder's percentage interest in (i) the Class A-3 Distributable
Amount for such Distribution Date and (ii) the amount of any repayment of any
outstanding Class A-3 Interest Carryover Shortfall, Class A-3 Loss Amounts,
Class A-3 Certificate Principal Loss Amounts and Class A-3 Certificate Principal
Loss Interest Amounts being made on such Distribution Date, all to the extent
and as more specifically set forth in the Agreement. To the extent provided in
the Agreement, no principal payments shall be made in respect of the Class A-2
Certificates until the Class A-1 Certificates have been paid in full, and no
principal payments shall be made in respect of the Class A-3 Certificates or the
Class B Certificates until the Class A-2 Certificates have been paid in full.
Distributions on this Class A-3 Certificate will be made by the
Securitization Trustee by check mailed to the Class ▇-▇
▇-▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ of record in the Certificate Register without the
presentation or surrender of this Class A-3 Certificate or the making of any
notation hereon except that with respect to Class A-3 Certificates registered
in the name of Cede & Co., the nominee for The Depository Trust Company,
distributions will be made by wire transfer of immediately available funds.
Except as otherwise provided in the Agreement and notwithstanding the
foregoing, the final distribution on this Class A-3 Certificate will be made
after due notice by the Securitization Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class A-3
Certificate at the Corporate Trust Office of the Securitization Trustee.
It is the intention of the Transferor and the Holders of Investor
Certificates that the Investor Certificates will be indebtedness for federal,
state and local income and franchise tax purposes and for purposes of any other
tax imposed on or measured by income. The Transferor, the Securitization
Trustee and the Holder of this Certificate (or Certificate Owner) by acceptance
of this Certificate (or, in the case of a Certificate Owner, by virtue of such
Certificate Owner's acquisition of a beneficial interest herein) agree to treat
the Investor Certificates (or beneficial interest therein), for purposes of
federal, state and local income or franchise taxes and any other tax imposed on
or measured by income, as indebtedness and to report the transactions
contemplated by the Agreement on all applicable tax returns in a manner
consistent with such treatment. Each Holder of this Certificate agrees that it
will cause any Certificate Owner acquiring an interest in this Certificate
through it to comply with the Agreement as to treatment as indebtedness for
federal, state and local income and franchise tax purposes and for purposes of
any other tax imposed on or measured by income.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of such Certificate Owner's acquisition of
a beneficial interest herein) waives any claim to any proceeds or assets of the
Titling Trustee and to all assets of the Titling Trust other than those from
time to time included in the 1997-A SUBI Assets and those proceeds or assets
derived from or earned by such 1997-A SUBI Assets.
A-3-5
In the event that, notwithstanding the statement of intentions and
undertakings set forth in SECTION 4.12(a) of the Agreement and herein, it is
finally determined that the Class A-3 Certificates do not evidence indebtedness
of the Transferor for all income and franchise tax purposes, but rather
represent an equity interest in the assets of the Securitization Trust, then the
Holder (and each Certificate Owner hereof with respect hereto by virtue of
acquiring a beneficial interest herein), agrees (i) to treat such Certificates,
together with the Transferor Certificate, as representing an interest in a
partnership for all tax purposes, (ii) to treat all payments in respect of such
Certificates (to the extent not a return of capital) as a "guaranteed payment"
thereon made pursuant to Section 707(c) of the Code, and (iii) to allocate all
other items of income, gain, deduction, loss or credit with respect to the
assets and operations of the Securitization Trust to the Transferor.
The Certificates do not represent an obligation of, or an interest in, the
Transferor, the Servicer, the Titling Trust, the Titling Trustee, the
Securitization Trustee or any of their respective affiliates. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the 1997-A SUBI Interest and 1997-A SUBI Certificate and certain monies on
deposit in the Reserve Fund and in certain other accounts established for the
benefit of the Certificateholders, in each case to the extent and as more
specifically set forth in the Agreement. A copy of the Agreement may be
examined during normal business hours at the Corporate Trust Office of the
Securitization Trustee and at such other places, if any, designated by the
Securitization Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Transferor and the Securitization Trustee. In certain limited
circumstances, the Agreement may only be amended with the consent of the Holders
of Investor Certificates evidencing not less than 51% of the aggregate
Percentage Interest of all Investor Certificates, voting together as a single
class. Any such
A-3-6
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and on all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the Securitization Trustee in its capacity as
Certificate Registrar, or at the office of the agent of the Securitization
Trustee in its capacity as Certificate Registrar, who shall initially be First
Trust of New York, National Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in the Borough of Manhattan, the City of New York, or at the
appropriate office of any successor Certificate Registrar, accompanied by a
written instrument of transfer in form satisfactory to the Securitization
Trustee and the Certificate Registrar duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Class A-3 Certificates of authorized denominations and of a like aggregate
fractional undivided interest will be issued to the designated transferee.
The Class A-3 Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class A-3 Certificate in a smaller minimum denomination
representing any remaining portion of the Initial Class A-3 Certificate
Balance). As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class, of authorized denominations of a like aggregate principal amount, as
requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the Securitization
Trustee may require payment of a sum sufficient to cover any tax or governmental
charges payable in connection therewith.
Prior to due presentation of this Certificate for registration of transfer,
the Securitization Trustee, the
A-3-7
Certificate Registrar and any of their respective agents may treat the Person
in whose name this Class A-3 Certificate is registered as the owner hereof
for the purpose of receiving distributions and for all other purposes, and
neither the Securitization Trustee, the Certificate Registrar nor any such
agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them pursuant
to the Agreement and the disposition of all property held as part of the
Securitization Trust. The Transferor may at its option purchase the corpus of
the Securitization Trust at a price specified in the Agreement, and such
purchase of the 1997-A SUBI Interest and 1997-A SUBI Certificate and other
property of the Securitization Trust will effect early retirement of the
Certificates; PROVIDED, HOWEVER, such right of purchase is exercisable only on
the Distribution Date following the last day of a Collection Period as of which
the Certificate Balance shall be less than or equal to ten percent (10%) of the
Initial Certificate Balance.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of acquiring a beneficial interest herein)
covenants and agrees that prior to the date which is one year and one day after
the last date upon which (a) each Class of Investor Certificates has been paid
in full, and (b) all obligations due under any other Securitized Financing have
been paid in full, the Holder and/or Certificate Owner will not institute
against, or join any other Person in instituting against the Transferor, Toyota
Motor Credit Corporation, the Securitization Trust, 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. The foregoing shall not limit the Holder's and/or
Certificate Owner's right to file any claim in or otherwise take actions with
respect to any such proceeding instituted by any Person not under such a
constraint. This nonpetition covenant shall survive the termination of the
Agreement.
A-3-8
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Securitization Trustee, by manual signature, this
Class A-3 Certificate shall not entitle the Holder hereof to any benefit under
the Agreement or be valid for any purpose.
A-3-9
IN WITNESS WHEREOF, the Transferor has caused this Class A-3 Certificate to
be duly executed.
Dated: __________ __, 199_
TOYOTA LEASING INC.
By:____________________________________
Authorized Officer
A-3-10
This is one of the Class A-3 Certificates referred
to in the within-mentioned Agreement.
FIRST BANK NATIONAL ASSOCIATION, as
Trustee
By:____________________________________
A-3-11
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
-----------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
-----------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
-----------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
-----------------------------*
Signature Guaranteed:
-----------------------------*
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee
A-3-12
program" as may be determined by the Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TOYOTA AUTO LEASE TRUST 1997-A
_____% AUTOMOBILE LEASE ASSET BACKED CERTIFICATE, CLASS A-4
evidencing a percentage interest in the distributions allocable to the
Investor Certificates, as defined below, evidencing an undivided interest in
the Securitization Trust, as defined below, the property of which includes,
among other things, a special unit of beneficial interest (the "1997-A SUBI
Interest") in Toyota Lease Trust, a Delaware business trust, which SUBI
Interest represents a beneficial interest in a pool of retail lease contracts
for new and used automobiles and light duty trucks (and the related
automobiles and light-duty trucks) entered into by various automobile and
light duty truck dealers pursuant to contractual arrangements with Toyota
Motor Credit Corporation, and which 1997-A SUBI Interest was originally
issued to Toyota Leasing, Inc. and then to the Securitization Trust.
(This Certificate does not represent an obligation of, or an interest in,
Toyota Leasing, Inc., Toyota Motor Credit Corporation, the Titling Trustee,
the Securitization Trustee or any of their respective affiliates.)
Aggregate Denominations of
all Class A-4 Certificates: CUSIP #
$
--------------
A-4-1
Number A-4- Denomination: $
-- ----------
A-4-2
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
_______________________________ ($____________) nonassessable, fully-paid,
fractional undivided interest in the Toyota Auto Lease Trust 1997-A (the
"Trust") formed by Toyota Leasing, Inc., a Delaware corporation, as
Transferor (the "Transferor"). The Securitization Trust was created pursuant
to a Securitization Trust Agreement dated as of 1, 1997 (the
"Agreement"), between the Transferor and First Bank National Association, a
national banking association, as trustee (the "Trustee"). A summary of
certain of the pertinent provisions of the Agreement is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates issued under
the Agreement and designated as "Toyota Auto Lease Trust 1997-A _____%
Automobile Lease Asset Backed Certificates, Class A-4" (the "Class A-4
Certificates"). Also issued under the Agreement are Certificates designated
as "Toyota Auto Lease Trust 1997-A _____% Automobile Lease Asset Backed
Certificates, Class A-1" (the "Class A-1 Certificates"), Certificates
designated as "Toyota Auto Lease Trust 1997-A_____% Automobile Lease Asset
Backed Certificates, Class A-2" (the "Class A-2 Certificates"), Certificates
designated as "Toyota Auto Lease Trust 1997-A __% Automobile Lease Asset
Backed Certificates, Class A-3 (the "Class A-3 Certificates" and, together
with the Class A-4 Certificates, the Class A-1 Certificates and the Class A-2
Certificates, the "Class A Certificates"), Certificates designated as "Toyota
Auto Lease Trust 1997-A _____% Automobile Lease Asset Backed Certificates,
Class B" (the "Class B Certificates" and, together with the Class A
Certificates, the "Investor Certificates") and a Certificate designated as
the "Toyota Auto Lease Trust 1997-A Asset Backed Transferor Certificate" (the
"Transferor Certificate" and, together with the Investor Certificates, the
"Certificates"). The Class B Certificates are subordinated to the Class A
Certificates and the Transferor Certificate is subordinated to the Investor
Certificates to the extent described in the Agreement. This Class A-4
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Class A-4
A-4-3
Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
The property of the Securitization Trust includes, among other things, a
special unit of beneficial interest (the "1997-A SUBI Interest") in Toyota
Least Trust, a Delaware business trust (the "Titling Trust"), which 1997-A
SUBI Interest represents a beneficial interest in a pool of retail automobile
and light duty truck lease contracts ("Contracts") and the new and used
automobiles and light duty trucks leased thereby ("Leased Vehicles") (such
pool of Contracts and Leased Vehicles; the "1997-A SUBI Portfolio") entered
into by various automobile and light duty truck dealers pursuant to
contractual arrangements with Toyota Motor Credit Corporation, which also
acts as servicer (in that capacity, the "Servicer") of the 1997-A SUBI
Portfolio.
Under the Agreement, there will be distributed on the 25th day of each
month or, if such 25th day is not a Business Day, the next succeeding
Business Day (each, a "Distribution Date"), commencing on __________ 25,
1997, to the Person in whose name this Class A-3 Certificate is registered at
the close of business on the last calendar day immediately preceding the
related Distribution Date or, if Definitive Certificates are issued, the last
day of the immediately preceding calendar month (each a "Record Date"), such
Class A-4 Certificateholder's percentage interest in (i) the Class A-4
Distributable Amount for such Distribution Date and (ii) the amount of any
repayment of any outstanding Class A-4 Interest Carryover Shortfall, Class
A-4 Loss Amounts, Class A-4 Certificate Principal Loss Amounts and Class A-4
Certificate Principal Loss Interest Amounts being made on such Distribution
Date, all to the extent and as more specifically set forth in the Agreement.
To the extent provided in the Agreement, no principal payments shall be made
in respect of the Class A-2 Certificates until the Class A-1 Certificates
have been paid in full, no principal payments shall be made in respect of the
Class A-3 Certificates until the Class A-2 Certificates have been paid in
full and no principal payments shall be made in respect of the Class A-4
Certificates or the Class B Certificates until the Class A-3 Certificates
have been paid in full.
A-4-4
Distributions on this Class A-4 Certificate will be made by the
Securitization Trustee by check mailed to the Class A-4 Certificateholder of
record in the Certificate Register without the presentation or surrender of
this Class A-3 Certificate or the making of any notation hereon except that
with respect to Class A-4 Certificates registered in the name of Cede & Co.,
the nominee for The Depository Trust Company, distributions will be made by
wire transfer of immediately available funds. Except as otherwise provided
in the Agreement and notwithstanding the foregoing, the final distribution on
this Class A-4 Certificate will be made after due notice by the
Securitization Trustee of the pendency of such distribution and only upon
presentation and surrender of this Class A-4 Certificate at the Corporate
Trust Office of the Securitization Trustee.
It is the intention of the Transferor and the Holders of Investor
Certificates that the Investor Certificates will be indebtedness for federal,
state and local income and franchise tax purposes and for purposes of any
other tax imposed on or measured by income. The Transferor, the
Securitization Trustee and the Holder of this Certificate (or Certificate
Owner) by acceptance of this Certificate (or, in the case of a Certificate
Owner, by virtue of such Certificate Owner's acquisition of a beneficial
interest herein) agree to treat the Investor Certificates (or beneficial
interest therein), for purposes of federal, state and local income or
franchise taxes and any other tax imposed on or measured by income, as
indebtedness and to report the transactions contemplated by the Agreement on
all applicable tax returns in a manner consistent with such treatment. Each
Holder of this Certificate agrees that it will cause any Certificate Owner
acquiring an interest in this Certificate through it to comply with the
Agreement as to treatment as indebtedness for federal, state and local income
and franchise tax purposes and for purposes of any other tax imposed on or
measured by income.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of such Certificate Owner's acquisition
of a beneficial interest herein) waives any claim to any proceeds or assets
of the Titling Trustee and to all assets of the Titling Trust other than
those from time
A-4-5
to time included in the 1997-A SUBI Assets and those proceeds or assets
derived from or earned by such 1997-A SUBI Assets.
In the event that, notwithstanding the statement of intentions and
undertakings set forth in SECTION 4.12(a) of the Agreement and herein, it is
finally determined that the Class A-4 Certificates do not evidence
indebtedness of the Transferor for all income and franchise tax purposes, but
rather represent an equity interest in the assets of the Securitization
Trust, then the Holder (and each Certificate Owner hereof with respect hereto
by virtue of acquiring a beneficial interest herein), agrees (i) to treat
such Certificates, together with the Transferor Certificate, as representing
an interest in a partnership for all tax purposes, (ii) to treat all payments
in respect of such Certificates (to the extent not a return of capital) as a
"guaranteed payment" thereon made pursuant to Section 707(c) of the Code, and
(iii) to allocate all other items of income, gain, deduction, loss or credit
with respect to the assets and operations of the Securitization Trust to the
Transferor.
The Certificates do not represent an obligation of, or an interest in,
the Transferor, the Servicer, the Titling Trust, the Titling Trustee, the
Securitization Trustee or any of their respective affiliates. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the 1997-A SUBI Interest and 1997-A SUBI Certificate
and certain monies on deposit in the Reserve Fund and in certain other
accounts established for the benefit of the Certificateholders, in each case
to the extent and as more specifically set forth in the Agreement. A copy of
the Agreement may be examined during normal business hours at the Corporate
Trust Office of the Securitization Trustee and at such other places, if any,
designated by the Securitization Trustee, by any Certificateholder upon
request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Transferor and the Securitization Trustee. In certain limited
circumstances, the Agreement may only be amended with the consent
A-4-6
of the Holders of Investor Certificates evidencing not less than 51% of the
aggregate Percentage Interest of all Investor Certificates, voting together
as a single class. Any such consent by the Holder of this Certificate shall
be conclusive and binding on such Holder and on all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the Corporate Trust Office of the Securitization Trustee in its capacity as
Certificate Registrar, or at the office of the agent of the Securitization
Trustee in its capacity as Certificate Registrar, who shall initially be
First Trust of New York, National Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in the Borough of Manhattan, the City of New York,
or at the appropriate office of any successor Certificate Registrar,
accompanied by a written instrument of transfer in form satisfactory to the
Securitization Trustee and the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Class A-4 Certificates of authorized denominations
and of a like aggregate fractional undivided interest will be issued to the
designated transferee.
The Class A-4 Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class A-4 Certificate in a smaller minimum denomination
representing any remaining portion of the Initial Class A-4 Certificate
Balance). As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of the
same Class, of authorized denominations of a like aggregate principal amount,
as requested by the Holder surrendering the same. No service charge will be
made for any such registration of transfer or exchange, but the
Securitization Trustee may require payment of a sum sufficient to cover any
tax or governmental charges payable in connection therewith.
A-4-7
Prior to due presentation of this Certificate for registration of
transfer, the Securitization Trustee, the Certificate Registrar and any of
their respective agents may treat the Person in whose name this Class A-4
Certificate is registered as the owner hereof for the purpose of receiving
distributions and for all other purposes, and neither the Securitization
Trustee, the Certificate Registrar nor any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them
pursuant to the Agreement and the disposition of all property held as part of
the Securitization Trust. The Transferor may at its option purchase the
corpus of the Securitization Trust at a price specified in the Agreement, and
such purchase of the 1997-A SUBI Interest and 1997-A SUBI Certificate and
other property of the Securitization Trust will effect early retirement of
the Certificates; PROVIDED, HOWEVER, such right of purchase is exercisable
only on the Distribution Date following the last day of a Collection Period
as of which the Certificate Balance shall be less than or equal to ten
percent (10%) of the Initial Certificate Balance.
By accepting this Certificate, the Holder hereof (and each Certificate
Owner with respect hereto, by virtue of acquiring a beneficial interest
herein) covenants and agrees that prior to the date which is one year and one
day after the last date upon which (a) each Class of Investor Certificates
has been paid in full, and (b) all obligations due under any other
Securitized Financing have been paid in full, the Holder and/or Certificate
Owner will not institute against, or join any other Person in instituting
against the Transferor, Toyota Motor Credit Corporation, the Securitization
Trust, 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. The
foregoing shall not limit the Holder's and/or Certificate Owner's right to
file any claim in or otherwise take actions with respect to any such
proceeding instituted by any Person not under such a
A-4-8
constraint. This nonpetition covenant shall survive the termination of the
Agreement.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Securitization Trustee, by manual signature,
this Class A-4 Certificate shall not entitle the Holder hereof to any benefit
under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Transferor has caused this Class A-4 Certificate
to be duly executed.
Dated: , 199
---------- --- --
TOYOTA LEASING INC.
By:
--------------------------------
Authorized Officer
A-4-9
This is one of the Class A-4 Certificates referred
to in the within-mentioned Agreement.
FIRST BANK NATIONAL ASSOCIATION, as
Trustee
By:
--------------------------------
A-4-10
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
----------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
----------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
----------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
-----------------------------*
Signature Guaranteed:
-----------------------------*
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must
be guaranteed by an "eligible guarantor institution" meeting the requirements
of the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee
A-4-11
program" as may be determined by the Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended.
A-4-12
EXHIBIT B
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-1
CERTIFICATES, THE CLASS A-2 CERTIFICATES AND THE CLASS A-3 CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS IN RELIANCE ON EXEMPTIONS PROVIDED BY THE
SECURITIES ACT AND SUCH STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF
THIS CERTIFICATE MAY BE MADE UNLESS SUCH RESALE OR TRANSFER (A) IS MADE IN
ACCORDANCE WITH SECTION 4.03 OF THE AGREEMENT REFERRED TO HEREIN AND (B) IS MADE
(i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(ii) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, (iii) TO TOYOTA LEASING
INC. (THE "TRANSFEROR") OR (iv) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT THAT IS AWARE THAT THE RESALE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A. NEITHER THE TRANSFEROR NOR FIRST BANK
NATIONAL ASSOCIATION, AS TRUSTEE (THE "SECURITIZATION TRUSTEE"), IS OBLIGATED TO
REGISTER THE CERTIFICATES UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS. IN THE EVENT THAT THE TRANSFER OF A CLASS B CERTIFICATE IS TO
BE MADE, EITHER (A) AN OPINION OF COUNSEL OR (B) A REPRESENTATION LETTER FROM
THE PROSPECTIVE INVESTOR, IN EITHER CASE IN FORM AND SUBSTANCE SATISFACTORY TO
THE SECURITIZATION TRUSTEE AND THE TRANSFEROR, IS REQUIRED TO BE DELIVERED TO
THE SECURITIZATION TRUSTEE AND THE TRANSFEROR, TO THE EFFECT THAT SUCH TRANSFER
MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE
STATE SECURITIES LAWS.
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE UNLESS THE
SECURITIZATION TRUSTEE SHALL HAVE RECEIVED A REPRESENTATION LETTER OR OPINION OF
COUNSEL FROM THE TRANSFEREE OF THIS CERTIFICATE, ACCEPTABLE TO AND IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRANSFEROR AND THE SECURITIZATION TRUSTEE, TO
B-1
THE EFFECT THAT (A) SUCH TRANSFEREE WILL NOT ACQUIRE THIS CERTIFICATE ON BEHALF
OR WITH THE ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), (B)
NO "PROHIBITED TRANSACTION" UNDER ERISA OR THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), WILL OCCUR IN CONNECTION WITH SUCH TRANSFEREE'S
ACQUISITION OF THIS CERTIFICATE OR (C) THE ACQUISITION OF THIS CERTIFICATE IS
SUBJECT TO A STATUTORY OR ADMINISTRATIVE EXEMPTION FROM THE "PROHIBITED
TRANSACTION" PROVISIONS OF ERISA AND THE CODE. IN ADDITION, NO TRANSFER OF THIS
CERTIFICATE WILL BE PERMITTED IF, AS A RESULT OF SUCH TRANSFER, 25% OR MORE OF
THE OUTSTANDING CERTIFICATE BALANCE OF ALL CLASS B CERTIFICATES WOULD BE HELD BY
EMPLOYEE BENEFIT PLANS" (AS DEFINED IN SECTION 3(3) OF ERISA) OR OTHER BENEFIT
PLAN INVESTORS.
THE RESTRICTIONS ON RESALE OR TRANSFER DESCRIBED ABOVE ARE SUBJECT TO ANY
REQUIREMENT OF LAW THAT THE DISPOSITION OF THE HOLDER'S PROPERTY SHALL AT ALL
TIMES BE AND REMAIN WITHIN ITS CONTROL.
TOYOTA AUTO LEASE TRUST 1997-A
_____% AUTOMOBILE LEASE ASSET BACKED CERTIFICATE, CLASS B
evidencing a percentage interest in the distributions allocable to the
Investor Certificates, as defined below, evidence an undivided
interest in the Securitization Trust, as defined below, the property
of which includes, among other things, a special unit of beneficial
interest (the "1997-A SUBI Interest") in Toyota Lease Trust, a
Delaware business trust, which 1997-A SUBI Interest represents a
beneficial interest in a pool of retail lease contracts for new and
used automobiles and light duty trucks (and the related automobiles
and light-duty trucks) entered into by various automobile and light
duty truck dealers pursuant to contractual arrangements with Toyota
Motor Credit Corporation, and which special unit of beneficial
interest was originally issued to Toyota Leasing Inc. and then to the
Securitization Trust.
B-2
(This Certificate does not represent an obligation of, or an interest
in, Toyota Leasing, Inc., Toyota Motor Credit Corporation, the Titling
Trustee or the Securitization Trustee or any of their respective
affiliates.)
Aggregate Denominations
of all Class B Certificates: CUSIP #
$_____________
Number B-__ Denomination: $__________
THIS CERTIFIES THAT _______________ is the registered owner of a
________________________________________________ DOLLAR and ________________
CENTS ($__________ ) nonassessable, fully-paid, fractional undivided interest in
the Toyota Auto Lease Trust 1997-A (the "Trust") formed by Toyota Leasing, Inc.,
a Delaware corporation, as Transferor (the "Transferor"). The Securitization
Trust was created pursuant to a Securitization Trust Agreement dated as of
1, 1997 (the "Agreement"), between the Transferor and First Bank
National Association, a national banking association, as trustee (the
"Trustee"). A summary of certain of the pertinent provisions of the Agreement
is set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates issued under
the Agreement and designated as "Toyota Auto Lease Trust 1997-A_____% Automobile
Contract Asset Backed Certificates, Class B" (the "Class B Certificates"). Also
issued under the Agreement are Certificates designated as "Toyota Auto Lease
Trust 1997-A _____% Automobile Lease Asset Backed Certificates, Class A-1" (the
"Class A-1 Certificates"), Certificates designated as "Toyota Auto Lease Trust
1997-A_____% Automobile Lease Asset Backed Certificates, Class A-2" (the "Class
A-2 Certificates"), Certificates designated as "Toyota Auto Lease Trust 1997-A
_____% Automobile Lease Asset Backed Certificates, Class A-3" (the "Class A-3
Certificates" and, together with the Class A-1 Certificates and the Class A-2
Certificates, the "Class A Certificates" and, together with the Class B
Certificates, the
B-3
"Investor Certificates") and a Certificate designated as the "Toyota Auto Lease
Trust 1997-A Automobile Asset Backed Transferor Certificate" (the "Transferor
Certificate" and, together with the Investor Certificates, the "Certificates").
The Class B Certificates are subordinated to the Class A Certificates, and the
Transferor Certificate is subordinated to the Investor Certificates, to the
extent described in the Agreement. This Class B Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class B Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The property of the Securitization Trust includes, among other things, a
special unit of beneficial interest (the "1997-A SUBI Interest") in Toyota Lease
Trust, a Delaware business trust (the "Titling Trust"), which 1997-A SUBI
Interest represents a beneficial interest in a pool of retail automobile and
light duty truck lease contracts ("Contracts") and the new and used automobiles
and light duty trucks leased thereby ("Leased Vehicles") (such pool of Contracts
and Leased Vehicles, the "1997-A SUBI Portfolio") entered into by various
automobile and light duty truck dealers pursuant to contractual arrangements
with Toyota Motor Credit Corporation, which also acts as servicer (in that
capacity, the "Servicer") of the 1997-A SUBI Portfolio.
Under the Agreement, there will be distributed on the 25th day of each
month or, if such 25th day is not a Business Day, the next succeeding Business
Day (each, a "Distribution Date"), commencing on ___________ 25, 1997 to the
Person in whose name this Class B Certificate is registered at the close of
business on the last day of the immediately preceding calendar month (each a
"Record Date"), such Class B Certificateholder's percentage interest in (i) the
Class B Distributable Amount for such Distribution Date, and (ii) the amount of
any repayment of any outstanding Class B Interest Carryover Shortfall, Class B
Certificate Principal Carryover Shortfall, Class B Loss Amounts, Class B
Certificate Principal Loss Amounts, Class B Certificate Principal Loss Interest
Amounts and Class B Certificate Principal Carryover Shortfall Interest Amounts
being made on such Distribution Date, all to the extent and as more specifically
set
B-4
forth in the Agreement. To the extent provided in the Agreement, no principal
payments shall be made in respect of the Class A-2 Certificates until the Class
A-1 Certificates have been paid in full, and no principal payments shall be made
in respect of the Class A-3 Certificates or the Class B Certificates until the
Class A-2 Certificates have been paid in full.
Distributions on this Class B Certificate will be made by the
Securitization Trustee by check mailed to the Class B Certificateholder of
record in the Certificate Register without the presentation or surrender of this
Class B Certificate or the making of any notation hereon or, at the option of a
Holder who owns Class B Certificates having an aggregate initial denomination of
$250,000 or more, upon written instructions received by the Securitization
Trustee not later than fifteen days prior to the related Record Date, by wire
transfer of immediately available funds to an account maintained by such Holder
at a depository institution in the United States having appropriate facilities
therefor. Except as otherwise provided in the Agreement and notwithstanding the
foregoing, the final distribution on this Class B Certificate will be made after
due notice by the Securitization Trustee of the pendency of such distribution
and only upon presentation and surrender of this Class B Certificate at the
Corporate Trust Office of the Securitization Trustee.
It is the intention of the Transferor and the Holders of Investor
Certificates that the Investor Certificates will be indebtedness for federal,
state and local income and franchise tax purposes and for purposes of any other
tax imposed on or measured by income. The Transferor, the Securitization
Trustee and the Holder of this Certificate by acceptance of this Certificate
agree to treat the Investor Certificates, for purposes of federal, state and
local income or franchise taxes and any other tax imposed on or measured by
income, as indebtedness and to report the transactions contemplated by the
Agreement on all applicable tax returns in a manner consistent with such
treatment.
By accepting this Certificate, the Holder hereof waives any claim to any
proceeds or assets of the Titling Trustee and to all
B-5
assets of the Titling Trust other than those from time to time included in the
1997-A SUBI Assets and those proceeds or assets derived from or earned by such
1997-A SUBI Assets.
In the event that, notwithstanding the statement of intentions and
undertakings set forth in SECTION 4.12(a) of the Agreement and herein, it is
finally determined that the Class B Certificates do not evidence indebtedness of
the Transferor for all income and franchise tax purposes, but rather represent
an equity interest in the assets of the Securitization Trust, then Holder hereof
agrees (i) to treat such Certificates, together with the Transferor Certificate,
as representing an interest in a partnership for all tax purposes, (ii) to treat
all payments in respect of such Certificates (to the extent not a return of
capital) as a "guaranteed payment" thereon made pursuant to Section 707(c) of
the Code, and (iii) to allocate all other items of income, gain, deduction, loss
or credit with respect to the assets and operations of the Securitization Trust
to the Transferor.
The Certificates do not represent an obligation of, or an interest in, the
Transferor, the Servicer, the Titling Trust, the Titling Trustee, the
Securitization Trustee or any of their respective affiliates. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the 1997-A SUBI Interest and 1997-A SUBI Certificate and certain monies on
deposit in the Reserve Fund and in certain other accounts established for the
benefit of the Certificateholders, in each case to the extent and as more
specifically set forth in the Agreement. A copy of the Agreement may be
examined during normal business hours at the Corporate Trust Office of the
Securitization Trustee, and at such other places, if any, designated by the
Securitization Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the Transferor and the Securitization Trustee. In certain limited
circumstances, the Agreement may only be amended with the consent
B-6
of the Holders of Investor Certificates evidencing not less than 51% of the
aggregate Percentage Interest of all Investor Certificates, voting together as a
single class. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and on all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Registrar upon surrender of this Certificate for registration of transfer at the
Corporate Trust Office of the Securitization Trustee in its capacity as
Certificate Registrar, or at the office of the agent of the Securitization
Trustee in its capacity as Certificate Registrar, who shall initially be First
Trust of New York, National Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in the Borough of Manhattan, the City of New York, or at the
appropriate office of any successor Certificate Registrar, accompanied by a
written instrument of transfer in form satisfactory to the Securitization
Trustee and the Certificate Registrar duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Class B Certificates of authorized denominations and of a like aggregate
fractional undivided interest will be issued to the designated transferee.
The Class B Certificates are issuable only as registered Certificates
without coupons in denominations of $250,000 and integral multiples of $1,000 in
excess thereof, (except for one Class B Certificate in a smaller minimum
denomination representing any remaining portion of the Initial Class B
Certificate Balance). As provided in the Agreement, and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class, of authorized denominations of a like aggregate
principal amount, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Securitization Trustee may require payment of a sum
B-7
sufficient to cover any tax or governmental charges payable in connection
therewith.
Prior to due presentation of this Certificate for registration of transfer,
the Securitization Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Class B Certificate is
registered as the owner hereof for the purpose of receiving distributions and
for all other purposes, and neither the Securitization Trustee, the Certificate
Registrar nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them pursuant
to the Agreement and the disposition of all property held as part of the
Securitization Trust. The Transferor may at its option purchase the corpus of
the Securitization Trust at a price specified in the Agreement, and such
purchase of the 1997-A SUBI Interest and 1997-A SUBI Certificate and other
property of the Securitization Trust will effect early retirement of the
Certificates; PROVIDED, HOWEVER, such right of purchase is exercisable only on
the Distribution Date following the last day of a Collection Period as of which
the Certificate Balance shall be less than or equal to ten percent (10%) of the
Initial Certificate Balance.
By accepting this Certificate, the Holder hereof covenants and agrees that
prior to the date which is one year and one day after the last date upon which
(a) each Class of Investor Certificates has been paid in full, and (b) all
obligations due under any other Securitized Financing have been paid in full,
the Holder will not institute against, or join any other Person in instituting
against the Transferor, Toyota Motor Credit Corporation, the Securitization
Trust, 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. The foregoing shall not limit the
Holder's right to file any claim in or otherwise take actions with respect to
any such proceeding instituted by any Person not under such a constraint. This
B-8
non-petition covenant shall survive the termination of the Agreement.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Securitization Trustee, by manual signature, this
Class B Certificate shall not entitle the Holder hereof to any benefit under the
Agreement or be valid for any purpose.
B-9
IN WITNESS WHEREOF, the Transferor has caused this Class B Certificate to
be duly executed.
Dated: __________ __, 199_
TOYOTA LEASING INC.
By:________________________________
Authorized Officer
B-10
This is one of the Class B Certificates referred
to in the within-mentioned Agreement.
FIRST BANK NATIONAL ASSOCIATION, as
Trustee
By:________________________________
B-11
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
_________________________________________________________________
(Please print or typewrite name and address, including postal zip code, of
assignee)
_________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_________________________________________________________________
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
_____________________________*
Signature Guaranteed:
_____________________________*
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee
B-12
program" as may be determined by the Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
B-13
EXHIBIT C
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE APPLICABLE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE RESOLD OR TRANSFERRED.
TOYOTA AUTO LEASE TRUST 1997-A
AUTOMOBILE LEASE ASSET BACKED TRANSFEROR CERTIFICATE
evidencing the entire interest in the distributions allocable to the
Transferor Certificate evidencing an undivided interest in the
Securitization Trust, as defined below, the property of which
includes, among other things, a special unit of beneficial interest
(the "1997-A SUBI Interest") in Toyota Lease Trust, a Delaware
business trust, which 1997-A SUBI Interest represents a beneficial
interest in a pool of retail lease contracts for new and used
automobiles and light duty trucks (and the related automobiles and
light-duty trucks) entered into by various automobile and light duty
truck dealers pursuant to contractual arrangements with Toyota Motor
Credit Corporation, and which 1997-A SUBI Interest was originally
issued to Toyota Leasing, Inc., and then to the Securitization Trust.
(This Certificate does not represent an obligation of, or an interest
in, Toyota Leasing, Inc., Toyota Motor Credit Corporation, or any of
their respective affiliates.)
THIS CERTIFIES THAT TOYOTA LEASING, INC. (the "Transferor") is the
registered owner of the entire interest not allocated to the Investor
Certificates in the Toyota Auto Lease Trust 1997-A (the "Trust") formed by
the Transferor. The Securitization Trust was created pursuant to a
Securitization Trust Agreement dated as of __________________1, 1997 (the
"Agreement"), between the Transferor and First Bank National Association, a
national banking association, as trustee (the "Trustee"). A summary of
certain of the
C-1
pertinent provisions of the Agreement is set forth below. To the extent not
otherwise defined herein the capitalized terms used herein have the meanings
assigned to them in the Agreement.
This Certificate is the duly authorized Transferor Certificate issued
under the Agreement and designated as the "Toyota Auto Lease Trust 1997-A
Automobile Lease Asset Backed Transferor Certificate" (the "Transferor
Certificate"). Also issued under the Agreement are Certificates designated
as "Toyota Auto Lease Trust 1997-A ____% Automobile Lease Asset Backed
Certificates, Class A-1" (the "Class A-1 Certificates"), Certificates
designated as "Toyota Auto Lease Trust 1997-A ____% Automobile Contract Asset
Backed Certificates, Class A-2" (the "Class A-2 Certificates"), Certificates
designated as "Toyota Auto Lease Trust 1997-A ____% Automobile Lease Asset
Backed Certificates, Class A-3" (the "Class A-3 Certificates" and, together
with the Class A-1 Certificates and the Class A-2 Certificates, the "Class A
Certificates") and Certificates designated as "Toyota Auto Lease Trust 1997-A
___% Automobile Lease Asset Backed Certificates, Class B" (the "Class B
Certificates" and, together with the Class A Certificates, the "Investor
Certificates" and, together with the Transferor Certificate, the
"Certificates"). This Transferor Certificate is issued under and is subject
to the terms, provisions and conditions of the Agreement, to which Agreement
the Holder of this Transferor Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
The property of the Securitization Trust includes, among other things, a
special unit of beneficial interest (the "1997-A SUBI Interest") in Toyota
Lease Trust, a Delaware business trust (the "Titling Trust"), which 1997-A
SUBI Interest represents a beneficial interest in a pool of retail automobile
and light duty truck lease contracts ("Contracts") and the new and used
automobiles and light duty trucks leased thereby ("Leased Vehicles") (such
pool of Contracts and Leased Vehicles, the "1997-A SUBI Portfolio") entered
into by various automobile and light duty truck dealers pursuant to
contractual arrangements with Toyota Motor Credit Corporation, which also
acts as servicer (in that capacity, the "Servicer") of the 1997-A SUBI
Portfolio. During the Revolving Period, Principal Collections allocable to
C-2
the 1997-A SUBI Interest generally will be applied towards the allocation to
the 1997-A SUBI Portfolio of additional qualifying Contracts and Leased
Vehicles from among all other unallocated Contracts and Leased Vehicles owned
by the Titling Trust.
Payments in respect of the 1997-A SUBI Interest will be allocated between
the Investor Certificates and this Transferor Certificate and paid to the
registered Holder of this Transferor Certificate as provided in the Agreement.
It is the intention of the Transferor, as the Holder of this Certificate,
and the Holders of Investor Certificates that the Investor Certificates will
be indebtedness for federal, state and local income and franchise tax
purposes and for purposes of any other tax imposed on or measured by income.
The Securitization Trustee and Transferor, as the Holder of this Certificate,
by acceptance of this Certificate, agree to treat the Investor Certificates,
for purposes of federal, state and local income or franchise taxes and any
other tax imposed on or measured by income, as indebtedness and to report the
transactions contemplated by the Agreement on all applicable tax returns in a
manner consistent with such treatment.
By accepting this Certificate, the Holder hereof waives any claim to any
proceeds or assets of the Titling Trustee and to all assets of the Titling
Trust other than those from time to time included in the 1997-A SUBI Assets
and those proceeds or assets derived from or earned by such 1997-A SUBI
Assets.
In the event that, notwithstanding the statement of intentions and
undertakings set forth in Section 4.12(a) of the Agreement and herein, it is
finally determined that the Investor Certificates do not evidence
indebtedness of the Transferor for all income and franchise tax purposes, but
rather represent an equity interest in the assets of the Securitization
Trust, then the Transferor, as Holder hereof, agrees (i) to treat the
Investor Certificates, together with this Certificate, as representing an
interest in a partnership for all tax purposes, (ii) to treat all payments in
respect of such Certificates (to the extent not a return of capital) as a
"guaranteed payment" thereon made pursuant to Section 707(c) of the Code, and
(iii) to
C-3
allocate all other items of income, gain, deduction, loss or credit with
respect to the assets and operations of the Securitization Trust to the
Transferor.
The Certificates do not represent an obligation of, or an interest in,
the Transferor, the Servicer, the Titling Trust, the Titling Trustee, the
Securitization Trustee or any of their respective affiliates. The
Certificates are limited in right of payment to certain collections and
recoveries respecting the 1997-A SUBI Interest and 1997-A SUBI Certificate
and certain monies on deposit in the Reserve Fund and in certain other
accounts established for the benefit of the Certificateholders, in each case
to the extent and as more specifically set forth in the Agreement. A copy of
the Agreement may be examined during normal business hours at the Corporate
Trust Office of the Securitization Trustee, and at such other places, if any,
designated by the Securitization Trustee, by any Certificateholder upon
request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement
at any time by the Transferor and the Securitization Trustee. In certain
limited circumstances, the Agreement may only be amended with the consent of
the Holders of Certificates evidencing not less than 51% of the aggregate
Percentage Interest of all Investor Certificates, voting together as a single
class.
As provided in the Agreement, this Certificate shall be owned by the
Transferor and may not be transferred.
As provided in the Agreement and subject to certain limitations therein
set forth, Certificates are exchangeable for new Certificates of the same
Class, of authorized denominations of a like aggregate principal amount, as
requested by the Holder surrendering the same. No service charge will be
made for any such registration of transfer or exchange, but the
Securitization Trustee may require payment of a sum sufficient to cover any
tax or governmental charges payable in connection therewith.
C-4
The obligations and responsibilities created by the Agreement and the
Securitization Trust created thereby shall terminate upon the payment to
Investor Certificateholders of all amounts required to be paid to them
pursuant to the Agreement and the disposition of all property held as part of
the Securitization Trust. The Transferor may at its option purchase the
corpus of the Securitization Trust at a price specified in the Agreement, and
such purchase of the 1997-A SUBI Interest and 1997-A SUBI Certificate and
other property of the Securitization Trust will effect early retirement of
the Certificates; PROVIDED, HOWEVER, such right of purchase is exercisable
only on the Distribution Date following the last day of a Collection Period
as of which the Certificate Balance shall be less than or equal to ten
percent (10%) of the Initial Certificate Balance.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Securitization Trustee, by manual signature,
this Transferor Certificate shall not entitle the Holder hereof to any
benefit under the Agreement or be valid for any purpose.
C-5
IN WITNESS WHEREOF, the Securitization Trustee on behalf of the
Securitization Trust and not in its individual capacity has caused this
Transferor Certificate to be duly executed.
Dated: , 1997 TOYOTA LEASING, INC.
-------------
(SEAL) By:
-------------------------
Authorized Officer
ATTEST
---------------------------
C-6
This is the Transferor Certificate referred
to in the within-mentioned Agreement.
FIRST BANK NATIONAL ASSOCIATION, as
Trustee
By:
-------------------------------
C-7
EXHIBIT D-1
NON-RULE 144A REPRESENTATION LETTER
Toyota Leasing, Inc.,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
First Bank National Association
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Toyota Auto Lease Trust 1997-A ____% Automobile
LEASE ASSET BACKED CERTIFICATES, CLASS B
Ladies and Gentlemen:
The undersigned purchaser (the "Purchaser") understands that the purchase
of the above-referenced certificates (the "Certificates") may be made only by
institutions which are "Accredited Investors" under Regulation D, as
promulgated under the Securities Act of 1933, as amended (the "Securities
Act"), which includes banks, savings and loan associations, registered
brokers and dealers, insurance companies, investment companies and
organizations described in Section 501(c)(3) of the Internal Revenue Code of
1986, as amended (the "Code"), corporations, business trusts and
partnerships, not formed for the specific purpose of acquiring the
Certificates offered, with total assets in excess of $5,000,000. The
undersigned represents on behalf of the Purchaser that the Purchaser is an
"Accredited Investor" within the meaning of such definition. The Purchaser is
urged to review carefully the responses, representations and warranties it is
making herein.
REPRESENTATIONS AND WARRANTIES
The Purchaser makes the following representations and warranties in order
to permit First Bank National Association, as trustee (the "Trustee") of the
Toyota Auto Lease Trust 1997-A (the "Securitization Trust"), and Toyota
Leasing, Inc. (the "Transferor") to determine its suitability as a purchaser
of
D-1-1
Certificates and to determine that the exemption from registration relied
upon by the Transferor under Section 4(2) of the Securities Act is available
to it.
1. The Purchaser understands that the Certificates have not been, and
throughout their term will not be, registered or qualified under the
Securities Act or the securities law of any state and may be resold (which
resale is not currently contemplated) only if registered pursuant to the
provisions of the Securities Act or if an exemption from registration under
the Securities Act and other applicable state securities laws are available,
that neither the Transferor nor the Securitization Trustee is required to
register the Certificates under the Securities Act or any applicable state
securities laws and that any transfer must comply with Section 4.03 of the
Securitization Trust Agreement, dated as of _______________1, 1997 (the
"Agreement"), among the Transferor, and the Securitization Trustee.
2. The Purchaser will comply with all applicable federal and state
securities laws in connection with any subsequent resale of the Certificates.
3. The Purchaser is an institutional "accredited investor" within the
meaning of paragraphs 1, 2, 3 or 7 Rule 501(a) under the Securities Act and a
sophisticated institutional investor and has knowledge and experience in
financial and business matters (and, in particular, in such matters related
to securities similar to the Certificates) and is capable of evaluating the
merits and risks of its investment in the Certificates and is able to bear
the economic risk of such investment. The Purchaser has been given such
information concerning the Certificates and the Transferor as it has
requested.
4. The Purchaser is acquiring the Certificates as principal for its own
account (or for the account of one or more other sophisticated institutional
investors for which it is acting as duly authorized fiduciary or agent) for
the purpose of investment and not with a view to or for sale in connection
with any distribution thereof, subject nevertheless to any requirement of law
that the disposition of the Purchaser's property shall at all times be and
remain within its control.
D-1-2
5. Neither the Purchaser nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of any Certificate, any
interest in any Certificate or any other similar security of the Transferor
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of any Certificate, any interest in any Certificate or any other
similar security of the Transferor with, any person in any manner, or made
any general solicitation by means of general advertising or in any other
manner, or taken any other action, which would constitute a distribution of
the Certificates under the Securities Act or which would render the
disposition of any Certificate a violation of Section 5 of the Securities Act
or any state securities law, require registration or qualification pursuant
thereto, or require registration of the Securitization Trust or the
Transferor as an "investment company" under the Investment Company Act of
1940, as amended, nor will it act, nor has it authorized or will it authorize
any person to act in such manner with respect to the Certificates.
6. The Purchaser has reviewed the Private Placement Memorandum with
respect to the Certificates dated _______ __, 1997, including the Prospectus
attached thereto as Exhibit A (the "Private Placement Memorandum"), and the
agreements and other materials referred to therein, and has had the
opportunity to ask questions and receive answers concerning the terms and
conditions of the transaction contemplated by the Private Placement
Memorandum and to obtain additional information necessary to verify the
accuracy and completeness of any information furnished to the Purchaser or to
which the Purchaser had access.
7. [The Purchaser will not acquire the Certificates with the assets of
any "employee benefit plan" as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").] [No "prohibited
transaction" under the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or the Code will occur in connection with our acquisition
of the Certificates.] [The acquisition of the Certificates is subject to a
statutory or administrative exemption from the "prohibited transaction"
provisions of the Employee Retirement Income Security act of 1974, as amended
("ERISA"), and the Code [specifying exemption].l*
D-1-3
8. [The Purchaser will not acquire the Certificates with the assets of
any "employee benefit plan" or any other benefit plan investor.] [The Purchaser
represents that it is an insurance company and is holding and will be holding
all funds used to purchase the Certificates in its general account, the
assets of which such Purchaser reasonably believes do not constitute "plan
assets" as defined in the plan asset regulations under ERISA.] [The Purchaser
will acquire the Certificates with the assets of an "employee benefit plan"
or other benefit plan investor]. *
9. The Purchaser understands that the Certificates will bear a legend
substantially as set forth in the form of Certificate included as Exhibit B
to the Agreement.
------------------
* Purchaser required to select applicable sentence.
D-1-4
10. The Purchaser understands that there is no market, nor is there any
assurance that a market will develop, for the Certificates and that the
Transferor does not have any obligation to make or facilitate any such market
(or to otherwise repurchase the Certificates from the Purchaser) under any
circumstances.
11. The Purchaser has consulted with its own legal counsel, independent
accountants and financial advisors to the extent it deems necessary regarding
the tax consequences to it of ownership of the Certificates, is aware that
its taxable income with respect to the Certificates in any accounting period
may not correspond to the cash flow (if any) from the Certificates for such
period, and is not purchasing the Certificates in reliance on any
representations of the Transferor or its counsel with respect to tax matters.
12. The Purchaser represents, on behalf of itself (or, if it is
acquiring the Certificates on behalf of one or more other sophisticated
institutional investors, on behalf of each of such investors) that if the
Purchaser or any such other investor is a partnership, grantor trust or S
corporation for federal income tax purposes (a "Flow-Through Entity"), any
Certificates owned by such Flow-Through Entity will represent less than 50%
of the value of all the assets owned by such Flow-Through Entity and no
special allocation of income, gain, loss, deduction or credit from such
Certificates will be made among the beneficial owners of such Flow-Through
Entity.
13. The Purchaser agrees that it will obtain from any subsequent
purchaser of the Certificates substantially the same representations,
warranties and agreements contained in the foregoing paragraphs 1 through 12
and in this paragraph 13.
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in the Agreement or the Private Placement
Memorandum, as the case may be.
D-1-5
The representations and warranties contained herein shall be binding
upon the successors of the undersigned.
Executed at , this day of 199
--------------- --- ------------ -
------------------------
Purchaser's Name (Print)
By
-------------------------------
Signature
Its
------------------------------
---------------------------------
Address of Purchaser
---------------------------------
Purchaser's Taxpayer
Identification Number
D-1-6
EXHIBIT D-2
RULE 144A REPRESENTATION LETTER
Toyota Leasing, Inc.,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
First Bank National Association
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Toyota Auto Lease Trust ____% Automobile
Lease Asset Backed Certificates, Class B
----------------------------------------
Ladies and Gentlemen:
______________________ (the "Purchaser") is today purchasing in a private
resale from ________________________ (the "Transferor") $__________ aggregate
principal amount of the above-captioned certificates (the "Certificates"),
issued pursuant to the securitization trust agreement, dated as of________ 1,
1997 (the "Agreement"), among Toyota Leasing, Inc. ("the Transferor") and
First Bank National Association.
In connection with the purchase of the Certificates, the Purchaser hereby
represents and warrants to each of you as follows:
1. The Purchaser understands that the Certificates have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or the securities laws of any state.
2. The Purchaser is acquiring the Certificates for its own account only
for investment and not for any other person, and not with a view to, or for
resale in connection with, a distribution that would constitute a violation of
the Securities Act or any state securities laws (subject to the understanding
that disposition of the Purchaser's property will remain at all times within its
control). The Purchaser is not an affiliate of the Transferor, Toyota Motor
Credit Corporation, the Securitization
D-2-1
Trustee, any custodian of the Certificates or any of their respective
affiliates.
3. The Purchaser agrees that the Certificates must be held indefinitely
by it unless (i) the Certificates are subsequently registered under the
Securities Act or (ii) an exemption from the registration requirements of the
Securities Act is available.
4. The Purchaser agrees that if at some time it wishes to dispose of or
exchange any of the Certificates, it will not transfer or exchange any of the
Certificates unless such transfer or exchange is in accordance with the
provisions of Section 4.03 of the Agreement.
5. The Purchaser is a qualified institutional buyer as defined in Rule
144A of the Securities Act and has completed and is delivering herewith either
of the forms of certification to that effect attached as Annexes hereto, it is
aware that the sale to it is being made in reliance on Rule 144A, it is
acquiring the Certificates for its own account or for the account of a qualified
institutional buyer and it understands that such Certificates may be resold,
pledged or transferred only (i) to a person who the Transferor reasonably
believes is a qualified institutional buyer that purchases for its own account
or for the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule 144A or
(ii) pursuant to another exemption from registration under the Securities Act
and applicable state securities laws.
6. Neither the Purchaser nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of any Certificate, any
interest in any Certificate or any other similar security of the Transferor to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of any Certificate any interest in any Certificate or any other similar security
of the Transferor with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, which would constitute a distribution of the Certificates
under the Securities Act or which would render the disposition of any
D-2-2
Certificate a violation of Section 5 of the Securities Act or any state
securities law, require registration or qualification pursuant thereto, or
require registration of the 1997-A Securitization Trust or the Transferor as
an "investment company" under the Investment Company Act of 1940, as amended,
nor will it act, nor has it authorized or will it authorize any person to act
in such manner with respect to the Certificates.
7. [The Purchaser will not acquire the Certificates with the assets of
any "employee benefit plan" as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").] [No "prohibited
transaction" under the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or the Internal Revenue Code of 1986, as amended (the
"Code"), will occur in connection with our acquisition of the Certificates.]
[The acquisition of the Certificates is subject to a statutory or administrative
exemption from the "prohibited transaction provisions of the Employee Retirement
Income Security act of 1974, as amended ("ERISA"), and the Internal Revenue Code
of 1986, as amended (the "Code"), [specifying exemption].](*)
8. [The Purchaser will not acquire the Certificates with the assets of
any "employee benefit plan" or any other benefit plan investor.] [The Purchaser
represents that it is an insurance company and is holding and will be holding
all funds used to purchase the Certificates in its general account, the assets
of which such Purchaser reasonably believes do not constitute "plan assets" as
defined in the plan asset regulations under ERISA.] [The Purchaser will acquire
the Certificates with the assets of an "employee benefit plan" or other benefit
plan investor.]
9. The Purchaser understands that there is no market, nor is there any
assurance that a market will develop, for the Certificates and that the
Transferor does not have any obligation to make or facilitate any such market
(or to otherwise repurchase the Certificates from the Purchaser) under any
circumstances.
____________________
* Purchaser required to select applicable sentence.
D-2-3
10. The Purchaser has consulted with its own legal counsel, independent
accountants and financial advisors to the extent it deems necessary regarding
the tax consequences to it of ownership of the Certificates, is aware that
its taxable income with respect to the Certificates in any accounting period
may not correspond to the cash flow (if any) from the Certificates for such
period, and is not purchasing the Certificates in reliance on any
representations of the Transferor or its counsel with respect to tax matters.
11. The Purchaser has reviewed the Private Placement Memorandum with
respect to the Certificates dated ________ ___, 1997, including the
Prospectus attached as Exhibit A thereto (the "Private Placement
Memorandum"), and the agreements and other materials referred to therein, and
has had the opportunity to ask questions and receive answers concerning the
terms and conditions of the transaction contemplated by the Private Placement
Memorandum and to obtain additional information necessary to verify the
accuracy and completeness of any information furnished to the Purchaser or to
which the Purchaser had access.
12. The Purchaser understands that the Certificates will bear a legend
substantially as set forth in the form of Certificate included as Exhibit B
to the Agreement.
13. The Purchaser hereby further agrees to be bound by all the terms and
conditions of the Certificates as provided in the Agreement.
14. The Purchaser represents that if the Purchaser is a partnership,
grantor trust or S corporation for federal income tax purposes (a
"Flow-Through Entity"), any Certificates owned by such Flow-Through Entity
will represent less than 50% of the value of all the assets owned by such
Flow-Through Entity and no special allocation of income, gain, loss deduction
or credit from such Certificates will be made among the beneficial owners of
such Flow-Through Entity.
15. If the Purchaser sells any of the Certificates, the Purchaser will
obtain from any subsequent purchaser substantially the same representations
contained in this Representation Letter.
D-2-4
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in the Agreement or the Private Placement
Memorandum, as the case may be.
The representations and warranties contained herein shall be binding upon
the successors of the undersigned.
Executed at ___________________, this ____ day of ___________ 199_
______________________________
Purchaser's Name (Print)
By____________________________
Signature
______________________________
Its
______________________________
Address of Purchaser
______________________________
Purchaser's Taxpayer
Identification Number
▇-▇-▇
▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇-▇
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Purchaser") hereby certifies as follows to the
addressees of the Rule 144A Representation Letter to which this certification
is attached with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Purchaser.
2. In connection with purchases by the Purchaser, the Purchaser is a
"qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933, as amended ("Rule 144A") because (i) the
Purchaser owned and/or invested on a discretionary basis $________(**) in
securities (except for the excluded securities referred to below) as of the
end of the Purchaser's most recent fiscal year (such amount being calculated
in accordance with Rule 144A) and (ii) the Purchaser satisfies the criteria
in the category marked below.
___ CORPORATION, ETC. The Purchaser is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ BANK. The Purchaser (a) is a national bank or banking
institution organized under the laws of any State, territory or
the District of Columbia, the business of which is substantially
confined to
________________________
** Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
D-2-6
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements.
D-2-7
___ SAVINGS AND LOAN. The Purchaser (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto
___ BROKER-DEALER. The Purchaser is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Purchaser is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia
___ STATE OR LOCAL PLAN. The Purchaser is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
___ ERISA PLAN. The Purchaser is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
____ INVESTMENT ADVISOR. The Purchaser is an investment advisor
registered under the Investment Advisors Act of 1940.
___ SMALL BUSINESS INVESTMENT COMPANY. The Purchaser is a small
business investment company licensed by the U.S. Small Business
Administration under
D-2-8
Section 301(c) or (d) of the Small Business Investment Act of
1958.
___ BUSINESS DEVELOPMENT COMPANY. The Purchaser is a business
development company as defined in Section 202(a) (22) of the
Investment Advisors Act of 1940.
___ TRUST FUND. The Purchaser is a trust fund whose trustee is a
bank or trust company and whose participants are exclusively
State or Local Plans or ERISA Plans as defined above, and no
participant of the Purchaser is an individual retirement account
or an H.R. 10 (▇▇▇▇▇) plan.
3. The term "SECURITIES" as used herein does not include (i) securities
of issuers that are affiliated with the Purchaser, (ii) securities that are part
of an unsold allotment to or subscription by the Purchaser, if the Purchaser is
a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Purchaser, the Purchaser used
the cost of such securities to the Purchaser and did not include any of the
securities referred to in the preceding paragraph, except (i) where the
Purchaser reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Purchaser may have included securities
owned by subsidiaries of the Purchaser, but only if such subsidiaries are
consolidated with the Purchaser in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under the Purchaser's direction. However, such
securities were not included if the Purchaser is a majority owned, consolidated
subsidiary of another enterprise and the
D-2-9
Purchaser is not itself a reporting company under the Securities Exchange Act
of 1934, as amended.
5. The Purchaser acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Purchaser may be in reliance on Rule 144A.
6. Until the date of purchase of the Certificates, the Purchaser will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, the
Purchaser's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Purchaser is
a bank or savings and loan is provided above, the Purchaser agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
______________________________
Name of Purchaser or Adviser
By:___________________________
Name:
Title:
Date:_________________________
▇-▇-▇▇
▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇-▇
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Purchaser") hereby certifies as follows to the
addressees of the Rule 144A Representation Letter which this certification is
attached with respect to the Transferor Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Purchaser or, if the Purchaser is a
"qualified institutional buyer as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because the Purchaser is part
of a Family of Investment Companies (as defined below), is such an officer of
the Adviser.
2. In connection with purchases by the Purchaser, the Purchaser is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Purchaser is an investment company registered under the Investment Company
Act of 1940, as amended and (ii) as marked below, the Purchaser alone, or the
Purchaser's Family of Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the
end of the Purchaser's most recent fiscal year. For purposes of determining
the amount of securities owned by the Purchaser or the Purchaser's Family of
Investment Companies, the cost of such securities was used, except (i) where
the Purchaser or the Purchaser's Family of Investment Companies reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence
applies, the securities may be valued at market.
___ The Purchaser owned $___________ in securities (other than the
excluded securities referred to below) as of the end of the
Purchaser's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
D-2-11
___ The Purchaser is part of a Family of Investment Companies which
owned in the aggregate $__________ in securities (other than the
excluded securities referred to below) as of the end of the
Purchaser's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i) securities
of issuers that are affiliated with the Purchaser or are part of the Purchaser's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps.
5. The Purchaser is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Representation Letter to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Purchaser will be in reliance on
Rule 144A. In addition, the Purchaser will only purchase for the Purchaser's
own account.
6. Until the date of purchase of the Transferor Certificates, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the Purchaser's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
______________________________
Name of Purchaser or Adviser
D-2-12
By:___________________________
Name:
Title:
IF AN ADVISER:
______________________________
Name of Purchaser
Date:_________________________
D-2-13