TOYOTA LEASE TRUST, TOYOTA MOTOR CREDIT CORPORATION, TOYOTA LEASING, INC., TOYOTA AUTO LEASE TRUST 20[__]-[__], and as Indenture Trustee BACK-UP SECURITY AGREEMENT Dated as of [____________]
Exhibit 10.9
TOYOTA MOTOR CREDIT CORPORATION,
TOYOTA LEASING, INC.,
TOYOTA AUTO LEASE TRUST 20[__]-[__],
and
[_______],
as Indenture Trustee
_________________________________________________________
BACK-UP SECURITY AGREEMENT
Dated as of [____________]
_________________________________________________________
TABLE OF CONTENTS
|
Page
|
||
|
ARTICLE ONE
|
DEFINITIONS
|
2
|
|
Section 1.01.
|
Definitions
|
2
|
|
Section 1.02.
|
Interpretive Provisions
|
3
|
|
ARTICLE TWO
|
SECURITY INTEREST
|
3
|
|
Section 2.01.
|
Grant of Security Interest.
|
3
|
|
Section 2.02.
|
Certificate of Title
|
4
|
|
Section 2.03.
|
Filing of Financing Statements.
|
4
|
|
Section 2.04.
|
Use of Collateral
|
4
|
|
Section 2.05.
|
Further Description of the Collateral
|
5
|
|
Section 2.06.
|
Back-Up Rights of Issuer
|
5
|
|
ARTICLE THREE
|
MISCELLANEOUS
|
5
|
|
Section 3.01.
|
Amendments
|
5
|
|
Section 3.02.
|
Governing Law
|
5
|
|
Section 3.03.
|
Severability of Provisions
|
5
|
|
Section 3.04.
|
Counterparts
|
5
|
|
Section 3.05.
|
Successors and Assigns
|
5
|
|
Section 3.06.
|
Further Assurances
|
5
|
|
Section 3.07.
|
Limitation of Liability of Owner Trustee, the Titling Trustee and the Indenture Trustee.
|
6
|
|
Section 3.08.
|
Notices
|
6
|
|
Section 3.09.
|
Series Disclaimer and Acknowledgment
|
6
|
|
SCHEDULES
|
||
|
Schedule A — Schedule of 20[__]-[__] Contracts
|
A-1
|
|
BACK-UP SECURITY AGREEMENT
THIS BACK-UP SECURITY AGREEMENT, is dated as of [____________], by and among Toyota Lease Trust, a Delaware statutory trust (the “Titling Trust”), Toyota Motor Credit Corporation, a California corporation (“TMCC”), Toyota Leasing, Inc., a California corporation (the “Transferor”), Toyota Auto Lease Trust 20[__]-[__], a Delaware statutory trust (the “Issuer”), and [______], a national banking association, not in its individual capacity, but solely as indenture trustee (the “Indenture Trustee”) under the Indenture, dated as of [____________] (the “Indenture), from the Issuer to the Indenture Trustee.
RECITALS
WHEREAS, the Titling Trust is governed by that certain Amended and Restated Trust and Servicing Agreement, dated as of October 1, 1996 (the “Titling Trust Agreement”), by and among TMTT, Inc., as titling trustee of the Titling Trust (the “Titling Trustee”), TMCC and, for certain limited purposes, U.S. Bank National Association (formerly known as First Bank National Association), a national banking association, as trust agent (the “Trust Agent”);
WHEREAS, the Titling Trust was formed for the purposes of, among other things, taking assignments and conveyances of, holding in trust and releasing its ownership interest in, various trust assets originated in connection with the lease of new or used automobiles, minivans, sport utility vehicles and light duty trucks leased in connection therewith;
WHEREAS, the Titling Trustee, TMCC, as grantor, initial beneficiary and servicer, and the Trust Agent, also entered into that certain UTI Supplement to the Titling Trust Agreement, dated as of October 1, 1996, pursuant to which the Titling Trust has issued to TMCC a certificate representing an undivided trust interest in the entire beneficial interest in the Titling Trust Assets (other than Titling Trust Assets allocated as SUBI Assets pursuant to any SUBI Supplement (each as defined in the Titling Trust Agreement));
WHEREAS, TMCC, as grantor, initial beneficiary and servicer, the Titling Trustee, the Trust Agent and [_______], as Indenture Trustee to the Titling Trust Agreement supplemented the Titling Trust Agreement with a supplement, dated as of [____________] (the “20[__]-[__] SUBI Supplement” and together with the Titling Trust Agreement, the “SUBI Trust Agreement”), to establish one special unit of beneficial interest (the “20[__]-[__] SUBI”);
WHEREAS, in connection with the SUBI Trust Agreement, a separate portfolio of lease contracts (the “20[__]-[__] Leases”), the vehicles leased under the 20[__]-[__] Leases (the “20[__]-[__] Vehicles”) and certain other related assets of the Titling Trust have been allocated to the 20[__]-[__] SUBI;
WHEREAS, the Titling Trust has issued to TMCC a certificate evidencing a beneficial interest in the 20[__]-[__] SUBI (the “20[__]-[__] SUBI Certificate”);
WHEREAS, the Issuer was formed pursuant to that certain short-form trust agreement, dated as of [____________], as amended and restated as of [____________], [between]/[among]
the Transferor [and] [____________], a [____________], as owner trustee [and [____________], a [____________], as Delaware trustee] (the “Trust Agreement”);
WHEREAS, pursuant to the SUBI certificate transfer agreement, dated as of [____________] (the “SUBI Certificate Transfer Agreement”), between TMCC and the Transferor, TMCC has transferred and assigned, without recourse, to the Transferor all of TMCC’s interest in the 20[__]-[__] SUBI Certificate in consideration of the Transfer Price (as defined therein);
WHEREAS, pursuant to the Issuer SUBI certificate transfer agreement, dated as of [____________] (the “Issuer SUBI Certificate Transfer Agreement”), between the Transferor and the Issuer, the Transferor has transferred and assigned, without recourse, to the Issuer all of the Transferor’s interest in the 20[__]-[__] SUBI Certificate and certain other rights in consideration of the Transfer Price (as defined therein);
WHEREAS, pursuant to the Indenture, the Issuer has granted a security interest in the 20[__]-[__] SUBI Certificate to the Indenture Trustee to secure payment of the Notes; and
WHEREAS, the parties hereto desire to provide that if, for any reason, the form of any of the transactions contemplated by the SUBI Trust Agreement, the 20[__]-[__] SUBI Certificate, the Trust Agreement or the Indenture (collectively, the “Transfer Documents”) are deemed to constitute a loan by any or all of the Securityholders (as defined in the Trust Agreement), secured by a pledge of the 20[__]-[__] SUBI Assets or any interest therein (rather than by the 20[__]-[__] SUBI Certificate), each of the Titling Trust, TMCC and the Transferor shall be deemed to have granted to the Issuer a first priority security interest in the Collateral (as defined herein) to secure the Securities, which security interest the Issuer shall have assigned to the Indenture Trustee to secure the Notes.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Whenever used herein, unless the context otherwise requires, (i) capitalized terms not otherwise defined herein have the meanings ascribed thereto in the SUBI Trust Agreement, and if not defined therein, in the SUBI Servicing Agreement, and (ii) the following words and phrases shall have the following meanings:
“Agreement” means this Back-Up Security Agreement, as amended or supplemented from time to time.
“Back-Up Event” means that a court of competent jurisdiction has made a determination or ruling that has the effect of allowing realization on the security intended to be provided to the
2
Issuer by the Transfer Documents only if such transactions are deemed to constitute a loan by the Issuer, secured directly by a pledge of the 20[__]-[__] SUBI Assets or any interest therein (rather than by the 20[__]-[__] SUBI Certificate and the beneficial interest in the 20[__]-[__] SUBI Assets represented thereby).
“Collateral” has the meaning set forth in Section 2.01(a).
“Pledgors” means the Titling Trust, TMCC and the Transferor.
“SUBI Servicing Agreement” means the Amended and Restated Trust and Servicing Agreement, dated as of October 1, 1996, as further amended as of October 1, 1996, among TMCC, the Titling Trustee and the Trust Agent, as supplemented by the SUBI Servicing Supplement, dated as of [____________], among the same parties.
“Titling Trust Assets” has the meaning set forth in the SUBI Trust Agreement.
“UCC” means the Uniform Commercial Code as in effect in the applicable jurisdiction.
Section 1.02. Interpretive Provisions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, (i) terms used herein include, as appropriate, all genders and the plural as well as the singular, (ii) references to words such as “herein”, “hereof” and the like shall refer to this Agreement as a whole and not to any particular part, Article or Section herein, (iii) references to an Article or Section such as “Article One” or “Section 1.01” shall refer to the applicable Article or Section of this Agreement, (iv) the term “include” and all variations thereof shall mean “include without limitation” and (v) the term “proceeds” shall have the meaning ascribed to such term in the UCC.
ARTICLE TWO
SECURITY INTEREST
Section 2.01. Grant of Security Interest.
(a) Each of the Titling Trust, TMCC and the Transferor hereby grants to the Issuer a security interest in all of its present and future right, title and interest, if any, in, to and under (but not, except to the extent required by law, any obligations with respect to) the following collateral (the “Collateral”): (i) a 100% interest in (A) all rights under the 20[__]-[__] Leases; (B) all other 20[__]-[__] SUBI Assets, including the Collection Account and the Reserve Account but excluding the 20[__]-[__] Vehicles except to the extent permitted by law and (C) all proceeds of the items described in (i) (A) and (i) (B), including insurance proceeds payable by reason of loss or damage to the 20[__]-[__] Vehicles to the extent not applied to making repairs to the related 20[__]-[__] Vehicle or otherwise paid by the Servicer to the Lessee, a third person or governmental authority as required by law or pursuant to its normal servicing practices and (ii) all proceeds of the foregoing. Such grant is made to secure (i) the payment of all amounts due on the Securities in accordance with their terms in the priorities of payment set forth in the
3
Indenture, (ii) the payment of all other sums payable under the Trust Agreement or the Indenture and (iii) compliance with the provisions of the Trust Agreement and the Indenture.
(b) The Issuer hereby assigns to the Indenture Trustee its security interests in the Collateral granted to the Issuer pursuant to Section 2.01(a) hereof to secure (i) the payment of all amounts due on the Notes, (ii) the payment of all other sums payable under the Indenture and (iii) compliance with the provisions of the Indenture.
(c) Each of the Issuer and the Indenture Trustee acknowledges such grant and assignment, but all parties hereto acknowledge and agree that (i) such grant and assignment are made solely for protective purposes and without representation or warranty as to the nature of any of parties’ rights in and to the Collateral; and (ii) none of the parties hereto intends to imply in any way that any of the Transfer Documents should not be interpreted or enforced in accordance with its respective terms. Each of the Titling Trustee and the Indenture Trustee also acknowledges that it shall have no claim to any proceeds or assets of the Titling Trust or to any of the Titling Trust Assets other than the Collateral.
Section 2.02. Certificate of Title. None of the parties hereto, including the Titling Trust, shall be required to make notation on, or cause to be taken any other action with respect to, any Certificate of Title for any 20[__]-[__] Vehicle to reflect the back-up Lien created hereby.
Section 2.03. Filing of Financing Statements.
(a) Each of the Titling Trust, TMCC, the Transferor and the Issuer, will from time to time execute, deliver and file all UCC financing statements and continuation statements reasonably required or necessary to maintain, perfect or continue the perfection of the backup Lien created hereby with respect to the 20[__]-[__] Leases and the proceeds thereof and any other Collateral, the perfection of a security interest in which may be accomplished and continued by the same filings. Each of TMCC, the Transferor and the Issuer acknowledge and agree that the UCC-1 financing statement filed against TMCC in connection with the transactions contemplated by the SUBI Certificate Transfer Agreement shall be assigned by the Transferor to the Indenture Trustee as secured party of record. The obligations of the Issuer hereunder will be performed by the Administrator.
(b) Upon release of the lien of the Indenture, the Indenture Trustee shall execute and file such partial or full releases or partial or full assignments of financing statements and other documents and instruments as may be prepared and reasonably requested by the Issuer to assign the Indenture Trustee’s interests hereunder back to the Issuer.
Section 2.04. Use of Collateral. Each of the parties granting a security interest hereunder may continue to use and deal with its interest in the Collateral in any lawful manner and may sell items of Collateral in the ordinary course of its business, subject only to the
4
requirements of the Transfer Documents, the SUBI Servicing Agreement, the UTI Supplement or any other Basic Document, as appropriate.
Section 2.05. Further Description of the Collateral. Schedule A attached hereto contains a description of the 20[__]-[__] Contracts.
Section 2.06. Back-Up Rights of Issuer. If a Back-Up Event shall have occurred and be continuing, the Issuer may exercise the rights and remedies with respect to the Collateral of a secured party under the UCC to the extent permitted by applicable law. Notwithstanding any other provision hereof, the Issuer shall have recourse only against the Collateral and not against any Pledgor hereunder.
ARTICLE THREE
MISCELLANEOUS
Section 3.01. Amendments. This Agreement may be amended by written agreement among the parties hereto; provided, however, that it may only be amended under the same circumstances the Trust Agreement could be amended pursuant to Section 12.01 thereof and the Indenture could be amended pursuant to Article Nine thereof.
Section 3.02. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
Section 3.03. Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid or unenforceable, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions and terms of this Agreement, as the same may be amended or supplemented, and shall in no way affect the validity or enforceability of the other covenants, agreements, provisions or terms of this Agreement.
Section 3.04. Counterparts. This Agreement may be executed in any number of counterparts, each of which so executed and delivered shall be deemed to be an original, but all of which counterparts shall together constitute but one and the same instrument.
Section 3.05. Successors and Assigns. All covenants and agreements contained in this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective permitted successors and assigns.
Section 3.06. Further Assurances. Each party will perform such acts and execute and deliver to any other party such additional documents or instruments as may be reasonably requested in order to effect the purposes of this Agreement and to better assure and confirm unto the requesting party its rights, powers and remedies hereunder.
5
Section 3.07. Limitation of Liability of Owner Trustee, the Titling Trustee and the Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by [__________] not in its individual capacity but solely in its capacity as Owner Trustee of the Issuer and in no event shall [__________] in its individual capacity or, except as expressly provided in the Trust Agreement, as Owner Trustee of the Issuer have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuer hereunder or in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the Issuer in accordance with the priorities set forth herein. For all purposes of this Agreement, in the performance of any duties or obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by TMTT, Inc. not in its individual capacity but solely in its capacity as Trustee of the Titling Trust and in no event shall TMTT, Inc. in its individual capacity have any liability for the representations, warranties, covenants, agreements or other obligations of the Titling Trust hereunder, as to all of which recourse shall be had solely to the assets of the Titling Trust. For all purposes of this Agreement, in the performance of any duties or obligations of the Titling Trust hereunder, the Titling Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Part VI of the SUBI Trust Agreement.
(c) Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by [__________] not in its individual capacity but solely in its capacity as Indenture Trustee and in no event shall [__________] in its individual capacity have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuer hereunder or in any of the certificates, notices or agreements delivered pursuant hereto.
Section 3.08. Notices. All notices, requests and demands under this Agreement shall be given in accordance with Section 11.04 of the Indenture. The address for such purpose of (i) the Titling Trust shall be c/o TMTT, Inc., [_______], Attention: [_______] (telecopier no. [_______]); (ii) TMCC shall be 00000 Xxxxx Xxxxxxx Xxxxxx EF 12, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: General Counsel and (iii) the Transferor shall be 00000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: President.
Section 3.09. Series Disclaimer and Acknowledgment. The parties hereto acknowledge and agree that the Titling Trust is organized in series pursuant to Section 3804(a) and 3806(b)(2) of the Statutory Trust Act. As such, the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to each series of the Titling Trust shall be enforceable against the assets of such series of the Titling Trust only, and not against the assets of the Titling Trust generally or the assets of any other series of the Titling Trust or against the
6
Titling Trustee of the Titling Trust. There may be several series of the Titling Trust created pursuant to the Titling Trust Agreement.
[SIGNATURE PAGE FOLLOWS]
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers hereto duly authorized, as of the day and year first above written.
[___________], not in its individual capacity but solely as Indenture Trustee
By:_______________________________________
Name:
Title:
By: TMTT, INC., not in its individual capacity but solely as Titling Trustee
By:_______________________________________
Name:
Title:
TOYOTA MOTOR CREDIT CORPORATION
By:_______________________________________
Name:
Title:
TOYOTA LEASING, INC.
By:_______________________________________
Name:
Title:
TOYOTA AUTO LEASE TRUST 2011-1
By: [___________], not in its individual capacity but solely as Owner Trustee
By:_______________________________________
Name:
Title:
1
SCHEDULE A
Schedule of 20[__]-[__] Contracts
[On file with the Servicer, the Titling Trustee and the Owner Trustee.]
2
