Exhibit 1.1
TOYOTA AUTO LEASE TRUST 1997-A
$410,000,000
[____]% Auto Lease Asset Backed Certificates, Class A-1
$650,000,000
[___]% Auto Lease Asset Backed Certificates, Class A-2
$72,750,000
[___]% Auto Lease Asset Backed Certificates, Class A-3
UNDERWRITING AGREEMENT
September __, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
As Representative of the
Several Underwriters
World Financial Center
Bank Tower
New York, New York 10281
Dear Sirs:
1. INTRODUCTORY. Toyota Leasing, Inc., a California corporation (the
"Transferor"), and Toyota Motor Credit Corporation, a California corporation
("TMCC"), hereby confirm their respective agreements with you and each of the
other underwriters named in Schedule I hereto (the "Underwriters"), for whom
you are acting as representative (the "Representative"), with respect to the
sale by the Transferor to the Underwriters of $410,000,000 aggregate
principal amount of [_____]% Auto Lease Asset Backed Certificates, Class A-1
(the "Class A-1 Certificates"), $650,000,000 aggregate principal amount of
[_____]% Auto Lease Asset Backed Certificates, Class A-2 (the "Class A-2
Certificates") and $72,750,000 aggregate principal amount of [ ____]% Auto
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") of the Toyota Auto
Lease Trust 1997-A (the "Securitization Trust") under the terms and
conditions herein contained. Simultaneously with the issuance of the Class A
Certificates, the Transferor will cause the Trust to issue $73,850,000
aggregate principal amount of __% Auto Lease Asset Backed Certificates, Class
B (the "Class B Certificates" and, together with the Class A Certificates,
the "Investor Certificates"). The Investor Certificates will be issued
pursuant to a securitization trust agreement, dated as of September 1, 1997
(the "Securitization Trust Agreement"), between the Transferor and U.S.
National Association ("U.S. Bank"), as trustee (in such capacity, the
"Securitization Trustee"). The Investor Certificates will represent
undivided interests in the Securitization Trust. The Transferor will own the
undivided interest in the Securitization Trust not evidenced by the Investor
Certificates (the "Transferor Interest"). The Class B Certificates will be
subordinated to the Class A Certificates, and the certificate evidencing the
Transferor Interest (the "Transferor Certificate" and, together with the
Investor Certificates, the "Certificates") will be subordinated to the
Investor Certificates, in each case to the extent described in the
Securitization Trust Agreement. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the
Securitization Trust Agreement.
The property of the Securitization Trust will consist primarily of a
special unit of beneficial interest (the "1997-A SUBI"), which, in turn, will
evidence a beneficial interest in certain specified assets of Toyota Lease
Trust, a Delaware business trust (the "Titling Trust"), monies on deposit in
the SUBI Collection Account, and the right to receive payments from the
Reserve Fund in certain circumstances (collectively, the "1997-A SUBI
Assets"). The assets of the Titling Trust (the "Titling Trust Assets") will
consist primarily of retail closed-end lease contracts assigned to the
Titling Trust by motor vehicle dealers pursuant to dealer agreements with the
Titling Trust, the automobiles and light duty trucks relating thereto and the
proceeds thereof, and payments made under certain insurance policies relating
to such lease contracts, the related lessees or such leased vehicles.
The Titling Trust is expected to invest certain collections on the
Contracts and Leased Vehicles in certain demand notes ("TMCC Demand Notes")
issued by TMCC pursuant to an indenture (the "Indenture") dated as of
September 1, 1997 between TMCC and U.S. Bank, as trustee (in such capacity,
the "Indenture Trustee").
The 1997-A SUBI will be evidenced by a certificate (the "1997-A SUBI
Certificate") issued to TMCC by the Titling Trust pursuant to the Series
1997-A Supplement (the "1997-A SUBI Supplement") dated [ ], 1997, to the
Amended and Restated Trust and Servicing Agreement (the "Titling Trust
Agreement") dated as of October 1, 1996, in each case, among TMCC, as
grantor, initial beneficiary and servicer, TMTT, Inc., as trustee (the
"Titling Trustee") and U.S. Bank, as trust agent (in such capacity, the
"Trust Agent"). TMCC will transfer the 1997-A SUBI Certificate to the
Transferor pursuant to the 1997-A SUBI Certificate Purchase and Sale
Agreement between them (the "1997-A SUBI Certificate Sale Agreement"). The
1997-A SUBI Certificate will be transferred and assigned by the Transferor to
the Securitization Trustee pursuant to the Securitization Trust Agreement.
The Titling Trust Assets (including the 1997-A SUBI Assets) will be serviced
by TMCC pursuant to the Titling Trust Agreement and the Series 1997-A SUBI
Servicing Supplement to the Titling Trust Agreement dated as of September 1,
1997 (the "1997-A SUBI Servicing
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Supplement") among the Titling Trustee, TMCC and the Transferor. The
Securitization Trust Agreement, the Titling Trust Agreement, the 1997-A SUBI
Supplement, the 1997-A SUBI Servicing Supplement, the 1997-A SUBI Certificate
Sale Agreement, the UTI Supplement (as defined herein), the Indenture and the
TMCC Demand Notes are referred to herein collectively as the "Basic
Agreements".
2. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR AND TMCC.
(a) Each of the Transferor and TMCC, jointly and severally, represents and
warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-1 and Form S-3 (No.
333-26717), including a form of prospectus, relating to the Class A
Certificates has been filed with the Securities and Exchange Commission
(the "Commission") and either (1) has been declared effective under the
Securities Act of 1933, as amended (the "Act"), and is not proposed to be
amended or (2) is proposed to be amended by amendment or post-effective
amendment. If the Transferor does not propose to amend such registration
statement and if any post-effective amendment to such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent such post-effective amendment
has been declared effective by the Commission. For purposes of this
Agreement, "Effective Time" means (1) if the Transferor has advised the
Representative that it does not propose to amend such registration
statement, the date and time as of which such registration statement, or
the most recent post-effective amendment thereto, if any, filed prior to
the execution and delivery of this Agreement, was declared effective by the
Commission or (2) if the Transferor has advised the Representative that it
proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as the
case may be, is declared effective by the Commission. "Effective Date"
means the date of the Effective Time. Such registration statement, as
amended at the Effective Time (including all information, if any, deemed to
be a part of such registration statement as of the Effective Time pursuant
to Rule 430A(b) under the Act, the exhibits thereto and all documents
incorporated by reference therein), is hereinafter referred to as the
"Registration Statement", and the form of prospectus (including all
documents incorporated therein or deemed to be incorporated therein)
relating to the Class A Certificates, in the form transmitted to the
Commission for filing pursuant to and in accordance with Rule 424(b) under
the Act ("Rule 424(b)"), or, if no such filing is required, as included in
the Registration Statement at the Effective Time, is hereinafter referred
to as the "Prospectus". The Prospectus delivered to you for use in
connection with the offering of the Class A Certificates is identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval ("▇▇▇▇▇")
system, except to the extent permitted by Regulation S-T. All references
in this Agreement to financial statements and schedules and other
information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
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import) shall be deemed to mean and include all such financial statements
and schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed
to mean and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "1934 Act") which is or is deemed to
be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
(ii) If the Effective Time is prior to the execution and
delivery of this Agreement: (A) on the Effective Date, the Registration
Statement conformed, and on the date of this Agreement the Registration
Statement conforms, in all material respects with the requirements of the
Act and the rules and regulations of the Commission promulgated under the
Act (the "Rules and Regulations") and at such times did not and does not
include any untrue statement of a material fact, and did not and does not
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and (B) at the time of the
filing of the Prospectus pursuant to Rule 424(b) and at the Closing Date
(as such term is defined in Section 3 hereof), the Prospectus does and will
conform in all material respects to the requirements of the Act and the
Rules and Regulations and does not and will not include any untrue
statement of a material fact and does not and will not omit any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the Effective
Time is subsequent to the execution and delivery of this Agreement: (A) on
the Effective Date, the Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act and the
Rules and Regulations, and the Registration Statement will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and (B) on the Effective Date or at the time of the filing
of the Prospectus pursuant to Rule 424(b), if required, as the case may be,
and at the Closing Date, the Prospectus will not include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The two immediately preceding
sentences do not apply to statements in or omissions from the Registration
Statement or Prospectus based upon written information furnished to TMCC by
any Underwriter through the Representative specifically for use therein.
(iii) The consummation of the transactions contemplated by this
Agreement and the Basic Agreements, and the fulfillment of the terms
thereof, will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in the creation
of any lien, charge, or encumbrance upon any of the property or assets of
the Transferor or TMCC pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement, guarantee, lease financing agreement or
similar agreement or instrument under which the Transferor or TMCC is a
debtor or guarantor.
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(iv) No consent, approval, authorization, or order of, or
filing with, any court or governmental agency or body is required to be
obtained or made by the Transferor or TMCC for the consummation of the
transactions contemplated by this Agreement and the Basic Agreements,
including without limitation (A) the issuance of the 1997-A SUBI
Certificate or the UTI Certificates, (B) the issuance of the Certificates
or the offering and sale of the Investor Certificates, or (C) the
execution, delivery and performance by each of the Transferor or TMCC of
this Agreement or any Basic Agreement to which it is a party and the
Certificates, except such as have been obtained and made under the Act or
the Rules and Regulations and such as may be required under securities laws
of any state or foreign jurisdiction.
(v) Neither the Transferor nor TMCC is in violation of its
charter or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any agreement or
instrument to which it is a party or by which it or its properties are
bound which could have a material adverse effect on the transactions
contemplated herein or in the Basic Agreements. The execution, delivery
and performance of this Agreement and the Basic Agreements and the issuance
and sale of the Certificates and compliance with the terms and provisions
of the Certificates will not, subject to obtaining any consents or
approvals as may be required under the securities laws of various
jurisdictions (in the United States and elsewhere), result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Transferor or TMCC or any of
their respective properties or any agreement or instrument to which the
Transferor or TMCC is a party or by which the Transferor or TMCC is bound
or to which any of their respective properties is subject, or with the
charter or by-laws of the Transferor or TMCC, and each of the Transferor
and TMCC has full corporate power and authority to enter into this
Agreement and the Basic Agreements to which it is a party and to consummate
the transactions contemplated hereby and thereby. Each of the Transferor
and TMCC is duly qualified or registered as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification or registration is required, whether by reason of the
ownership of property or the conduct of business, except where the failure
to so qualify would not have a material adverse effect on its condition,
financial or otherwise, or the enforceability of the Contracts.
(vi) This Agreement has been duly authorized, executed and delivered
by the Transferor and TMCC.
(vii) The Basic Documents, the 1997-A SUBI Certificate and the
certificate or certificates representing the Titling Trust Assets not
allocated to the 1997-A SUBI (the "UTI Certificates") conform in all
material respects to the respective descriptions thereof and the statements
in relation thereto contained in the Prospectus; the 1997-A SUBI
Certificate and the UTI Certificates have been duly and validly authorized
and, when executed, issued, authenticated and delivered in accordance with
the 1997-A SUBI Supplement, the Titling
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Trust Agreement and the UTI Supplement to the Titling Trust Agreement
dated as of October 1, 1996, among TMCC, TMTT, Inc. and First Bank as
trust agent (the "UTI Supplement"), will be duly and validly issued and
outstanding and entitled to the benefits of the 1997-A SUBI Supplement,
the UTI Supplement and the Titling Trust Agreement.
(viii) The Certificates conform in all material respects to the
description thereof and the statements in relation thereto contained in the
Prospectus; the Certificates have been duly and validly authorized and,
when executed, issued, authenticated and delivered in accordance with the
Securitization Trust Agreement and, in the case of the Class A
Certificates, when delivered to the Underwriters, against payment of the
consideration specified herein, will be duly and validly issued and
outstanding and entitled to the benefits of the Securitization Trust
Agreement.
(ix) None of the Transferor, TMCC, the Titling Trust or the
Securitization Trust is now or, as a result of the transactions
contemplated by this Agreement, will become, an "investment company", nor
is any of them "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(x) At or prior to the Closing Date, the Titling Trustee will have
allocated as 1997-A SUBI Assets, Contracts and Leased Vehicles that have an
Aggregate Net Investment Value as of the Cutoff Date equal to
$[___________].
(xi) The representations and warranties of each of the Transferor
and TMCC in each Basic Agreement to which it is a party will be true and
correct in accordance with the terms of such Basic Agreement; provided,
however, that with respect to representations or warranties made with
respect to any Contracts or SUBI Assets, the sole remedy for any breach
thereof is, as provided in the related agreement, the repurchase by either
TMCC or the Transferor, as the case may be, of any such Contract or SUBI
Asset.
(xii) All of the issued and outstanding capital stock of the
Transferor is owned by TMCC free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest
(collectively, "Liens") except as permitted by the Basic Agreements.
(xiii) All filings required to be made in respect of the Titling
Trust's status as a business trust under the laws of each state in which
such filings are required have been made and are in full force and effect
on the Closing Date, except where the failure so to file would not have a
material adverse effect on its condition, financial or otherwise, or its
ability to perform its obligations under each Basic Agreement to which it
is a party or on the enforceability of the Contracts.
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(xiv) The accountants who certified the financial statements and
supporting schedules incorporated by reference in the Registration
Statement are independent public accountants with respect to TMCC as
required by the Act and the Rules and Regulations.
(xv) The financial statements and supporting schedules incorporated
by reference in the Registration Statement and the Prospectus present
fairly the financial position of TMCC and its consolidated subsidiaries as
of the dates indicated and the results of their operations for the periods
specified; except as otherwise stated in the Registration Statement, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis and the
supporting schedules incorporated by reference in the Registration
Statement present fairly the information required to be stated therein.
(xvi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise
stated therein or contemplated thereby, (A) there has been no material
adverse change in the condition, financial or otherwise, of TMCC and its
subsidiaries considered as one enterprise or in the earnings, business
affairs or business prospects of TMCC and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business,
(B) there have been no transactions entered into by TMCC or any of its
subsidiaries, other than those in the ordinary course of business (which
includes, but is not limited to, Euromarket, EuroAsian, or global financing
and domestic private placement and public financing), which are material
with respect to TMCC and its subsidiaries considered as one enterprise, and
(C) since the date of the most recent audited financial statements of TMCC,
there has been no dividend or distribution of any kind declared, paid or
made by TMCC on any class of its capital stock, except as otherwise
disclosed in the Registration Statement and the Prospectus.
(b) Any Officer's Certificate signed by any officer of TMCC or the
Transferor and delivered to the Representative or counsel for the Underwriters
shall be deemed a representation and warranty of TMCC or the Transferor, as the
case may be, to each Underwriter as to the matters covered thereby.
3. PURCHASE, SALE AND DELIVERY OF THE CLASS A CERTIFICATES. On the basis
of and in reliance on the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, the
Transferor agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase from the
Transferor, the aggregate principal amount of each Class of Class A Certificates
set forth in Schedule I opposite the name of such Underwriter, at a purchase
price equal to the following percentages of the aggregate initial principal
balances thereof, (i) in the case of the Class A-1 Certificates, [__________]%,
(ii) in the case of the Class A-2 Certificates, [________]% and (iii) in the
case of the Class A-3 Certificates, [ ]%.
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Each Class of Class A Certificates will initially be represented by one or
more certificates registered in the name of Cede & Co., as the nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of each
Class of Class A Certificates will be represented by book entries on the records
of DTC and participating members thereof.
The Transferor will deliver the Class A Certificates to the Representative
for the respective securities accounts of the Underwriters, against payment of
the purchase price therefor in immediately available funds payable to the order
of the Transferor, at the office of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other location as agreed upon among
the Transferor, TMCC and the Representative) at 10:00 A.M., Los Angeles time, on
September , 1997, or at such other time not later than five full business days
thereafter, as the Transferor, TMCC and the Representative determine, such time
being herein referred to as the "Closing Date". The certificates evidencing the
Class A Certificates will be made available for inspection at the above offices
of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P. (or at such other location agreed upon among the
Transferor, TMCC and the Representative) at least 24 hours prior to the Closing
Date.
4. OFFERING BY THE UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Class A Certificates for sale to the public as
set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE TRANSFEROR AND TMCC. Each of the Transferor
and TMCC, as the case may be, jointly and severally, covenants and agrees with
each of the Underwriters that:
(a) If the Effective Time is prior to the execution and delivery of this
Agreement, the Transferor will file the Prospectus with the Commission pursuant
to and in accordance with subparagraph (1) (or, if applicable and if consented
to by the Representative, subparagraph (4)) of Rule 424(b), not later than the
second business day following the execution and delivery of this Agreement. The
Transferor will advise the Representative promptly of any such filing pursuant
to Rule 424(b).
(b) The Transferor will advise the Representative promptly of any proposal
to amend or supplement the registration statement as filed or the related
prospectus or the Registration Statement or the Prospectus (whether pursuant to
the Act or the 1934 Act) and will not effect any such amendment or supplement
without the consent of the Representative. The Transferor will advise the
Representative promptly of the effectiveness of the Registration Statement (if
the Effective Time is subsequent to the execution and delivery of this
Agreement), of any amendment or supplement of the Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement. The Transferor will use
its best efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Class A
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact
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necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply with
the Act, the Transferor will promptly notify the Representative and, with the
consent of the Representative (which consent shall not be unreasonably
withheld), will promptly prepare and file, or cause to be prepared and filed,
with the Commission an amendment or supplement which will correct such
statement or omission, or an amendment or supplement that will effect such
compliance. Neither the consent of the Representative to, nor the delivery
by the Representative of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the Availability Date (as
defined below), the Transferor will cause the Securitization Trustee to make
generally available to the Class A Certificateholders an earnings statement with
respect to the Securitization Trust covering a period of at least 12 months
beginning after the Effective Date that will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence, "Availability
Date" means the 45th day after the end of the fourth fiscal quarter following
the Transferor's fiscal quarter that includes such Effective Date, except that,
if such fourth fiscal quarter is the last quarter of the Transferor's fiscal
year, "Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
(e) The Transferor will furnish to the Representative copies of the
registration statement as originally filed with the Commission and each
amendment thereto (in each case including a photocopy of the originally executed
copy and one with all exhibits), each related preliminary prospectus, the
Prospectus and all amendments and supplements to such documents, in each case as
soon as available and in such quantities as the Representative may reasonably
request.
(f) The Transferor will arrange for the qualification of the Class A
Certificates for sale under the laws of such jurisdictions in the United States
as the Representative may reasonably designate and will continue such
qualifications in effect so long as required for the distribution of the Class A
Certificates, provided that the Transferor shall not be obligated to qualify to
do business or become subject to service of process generally, but only to the
extent required for such qualification, in any jurisdiction in which it is not
currently so qualified.
(g) So long as any Investor Certificates are outstanding, the Transferor
or TMCC, as the case may be, will deliver or cause to be delivered to the
Representative copies of (i) each statement relating to the Investor
Certificates delivered to Certificateholders pursuant to Section 3.03 of the
Securitization Trust Agreement, (ii) the annual statement as to compliance and
the annual statement of a firm of independent public accountants furnished
pursuant to Sections 5.02 or 5.03 of the 1997-A SUBI Servicing Supplement,
(iii) each certificate or notice delivered by the Servicer pursuant to
Section 9.03 of the Titling Trust Agreement and Section 7.04 of the 1997-A SUBI
Servicing Supplement, (iv) each periodic report required to be filed by the
Transferor with the Commission pursuant to the Exchange Act, or any order of the
Commission thereunder, and (v) such other information concerning the Transferor,
TMCC, the Titling Trustee (in its capacity as trustee
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of the Titling Trust), the Titling Trust, the Trust or the Certificates as
the Representative may reasonably request from time to time.
(h) The Transferor and TMCC will pay all expenses incident to the
performance of their respective obligations under this Agreement, including
without limitation, (i) expenses incident to the word processing, printing,
reproduction and distribution of the registration statement as originally filed
with the Commission and each amendment thereto, preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto), (ii) the fees and
disbursements of the Titling Trustee, the Securitization Trustee, the Trust
Agent and their respective counsel, (iii) the fees and disbursements of counsel
and the independent public accountants of the Transferor and TMCC, (iv) the fees
charged by each of ▇▇▇▇▇'▇ Investors Service, Inc. ("▇▇▇▇▇'▇") and Standard &
Poor's Ratings Services ("Standard & Poor's" and, together with ▇▇▇▇▇'▇, the
"Rating Agencies") in connection with the rating of each Class of Class A
Certificates, (v) the fees of DTC in connection with the book-entry registration
of the Class A Certificates, (vi) listing fees, (vii) the fees and expenses of
U.S. Bank and (viii) expenses incurred in distributing preliminary prospectuses
and the Prospectus (including any amendments and supplements thereto) to the
Underwriters, and will reimburse the Underwriters for any expenses (including
reasonable fees and disbursements of counsel) incurred by the Underwriters in
connection with the qualification of the Class A Certificates for sale under the
laws of such jurisdictions in the United States as the Representative may
designate pursuant to Section 5(f) hereof. If this Agreement is terminated by
the Representative in accordance with the provisions of Section 6 or clause (i)
or clause (ii) of Section 9 hereof, the Transferor and TMCC shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel to the Underwriters, reasonably incurred by
them in the offering of the Class A Certificates. On the Closing Date TMCC
shall pay to the Underwriters, PRO RATA in proportion to their commitments to
purchase Class A Certificates, a fee in the aggregate amount of $___________ for
advisory, analytical and structuring services relating to the Titling Trust.
(i) For a period of 45 days from the date hereof, none of the Transferor,
TMCC or any of their respective affiliates will, without the prior written
consent of the Representative, directly or indirectly, offer, sell or contract
to sell or announce the offering of, in a public or private transaction, any
other asset-backed auto lease securities similar to the Class A Certificates
other than the Class B Certificates.
(j) So long as any Class A Certificates are outstanding, the Transferor
and TMCC will cause to be delivered to the Representative a reliance letter
relating to each Opinion of Counsel delivered to the Securitization Trustee or
any Rating Agency by counsel to the Transferor or counsel to TMCC pursuant to
the Basic Agreements.
(k) To the extent, if any, that the rating provided with respect to any
Class of Class A Certificates by any Rating Agency is conditional upon the
furnishing of documents or the taking of any other actions by the Transferor or
TMCC, the Transferor or TMCC, as the case may be, shall furnish such documents
and take any such other actions.
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(l) The Transferor will file with the Commission such report on Form SR as
may be required pursuant to Rule 463 under the Act.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the several Underwriters to purchase and pay for the Class A Certificates will
be subject to the accuracy of the respective representations and warranties on
the part of the Transferor and TMCC herein, to the accuracy of the statements of
the Transferor and TMCC made in any officers' certificate pursuant to the
provisions hereof, to the performance by the Transferor and TMCC of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) On (i) the date of this Agreement, the Representative and the
Transferor shall have received two letters (one of which relates to the
Contracts and related information and one of which relates to the financial
statements of TMCC), dated the date of delivery thereof (which, if the Effective
Time is prior to the execution and delivery of this Agreement, shall be on or
prior to the date of this Agreement or, if the Effective Time is subsequent to
the execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to be
filed shortly prior to the Effective Time), of Price Waterhouse LLP ("Price
Waterhouse") confirming that they are independent public accountants with
respect to the Transferor and TMCC within the meaning of the Act and the Rules
and Regulations, substantially in the form of the drafts to which the
Representative has previously agreed and otherwise in form and in substance
satisfactory to the Representative and counsel for the Underwriters, and (ii) on
the Closing Date, the Representative and the Transferor and TMCC shall have
received a letter, dated as of the Closing Date, from Price Waterhouse, updating
the letter delivered pursuant to clause (i) above that relates to the financial
statements of TMCC, in form and substance satisfactory to the Representative and
counsel for the Underwriters.
(b) If the Effective Time has not occurred prior to the date of this
Agreement, the Effective Time shall have occurred not later than 5:30 p.m. New
York City time on the date of execution and delivery of this Agreement, or such
later date as shall have been consented to by the Representative. If the
Effective Time is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) hereof. Prior to the Closing Date, no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Transferor, TMCC or the Representative, shall be
contemplated by the Commission.
(c) The Representative shall have received a certificate dated the Closing
Date of the President, any Vice President or a principal accounting or financial
officer of the Transferor and the President, any Vice President or a principal
accounting or financial officer of TMCC in which such officer shall state (i) in
the case of the Transferor, that (A) to the best knowledge of such officer after
reasonable investigation, the representations and warranties of the Transferor
in this Agreement are true and correct, (B) to the best knowledge of such
officer after reasonable investigation, the Transferor has complied with all
agreements and satisfied all conditions on its part to be performed
11
or satisfied hereunder at or prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are contemplated
by the Commission and (C) subsequent to the date of this Agreement, there has
been no material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Transferor
except as set forth in or contemplated by the Prospectus and (ii) in the case
of TMCC, that (A) to the best knowledge of such officer after reasonable
investigation, the representations and warranties of TMCC in this Agreement
are true and correct, (B) to the best knowledge of such officer after
reasonable investigation, TMCC has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder and (C)
subsequent to the date of this Agreement, there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of TMCC that would materially and adversely
affect the performance by TMCC of its obligations under this Agreement or the
Basic Documents to which it is a party.
(d) The Representative shall have received:
(1) the favorable opinion, dated the Closing Date, of ▇▇▇▇ ▇. ▇▇▇▇▇,
Esq., General Counsel of TMCC and counsel to the Transferor, in form and
scope satisfactory to the Representative and its counsel, to the effect
that:
(i) Each of the Transferor and TMCC is a corporation duly
organized, existing and in good standing under the laws of the State
of California.
(ii) To such counsel's knowledge, each of the Transferor
and TMCC is duly incorporated or qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which their respective ownership or lease of substantial properties or
the conduct of their respective businesses requires such qualification
and in which the failure to so qualify and be in good standing would
materially adversely affect their respective businesses or financial
condition.
(iii) To such counsel's knowledge (A) there are no legal or
governmental proceedings pending or threatened against TMCC or in
connection with the origination and servicing of the Contracts by TMCC
which are required to be disclosed in the registration statement,
other than those disclosed therein, (B) there are no legal or
governmental proceedings to which TMCC is a party or to which any of
its property is subject which are not described in TMCC's Annual
Report on Form 10-K for the year ended September 30, 1996, or its
Quarterly Report for the quarter ended June 30, 1997, which are
required to be disclosed therein other than those disclosed therein
and (C) there are no pending legal or governmental proceedings to
which the Transferor is a party or to which any of its property is
subject.
(iv) To such counsel's knowledge (A) no default exists in
the due performance or observance by TMCC of any obligation,
agreement, covenant or
12
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or
by which it may be bound, which default would have a material adverse
effect on the financial condition, earnings, business affairs,
business prospects, properties or results of operations of TMCC and
its subsidiaries considered as one enterprise, and (B) other than
this Agreement and the Basic Agreements, the Transferor is not a
party to any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument.
(v) The execution, delivery and performance of this
Agreement and the Basic Agreements and the consummation of the
transactions herein and therein contemplated will not (A) conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any Lien upon any property or assets of TMCC
or any of its subsidiaries pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument
known to such counsel to which TMCC or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of TMCC or any of its subsidiaries is subject,
(B) result in any violation of the provisions of the charter or bylaws
of TMCC or the Transferor or (C) to such counsel's knowledge, result
in any violation of any applicable law, administrative regulation or
administrative or court decree.
(vi) Each of the Transferor and TMCC has obtained all
necessary authorizations and approvals under the federal law of the
United States and the laws of the State of California to conduct their
respective businesses in which the failure to obtain such licenses and
approvals would render any Contract or any other material part of the
corpus of the Titling Trust unenforceable or would materially and
adversely affect the ability of either the Transferor or TMCC to
perform any of their respective obligations under, or the
enforceability of, any Basic Agreement; provided, however, that such
counsel need express no opinion with respect to any consent or
approval relating to the authority to lease motor vehicles, originate
lease contracts or to service such leased motor vehicles and lease
contracts.
(2) The favorable opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., special counsel
to the Transferor and TMCC, dated the Closing Date and satisfactory in form
and substance to the Representative and counsel for the Underwriters and to
the effect that:
(i) Each of the Transferor and TMCC has corporate power and
authority to own, lease and operate its properties and to conduct its
business as presently conducted and to enter into and perform its
obligations under this Agreement and each Basic Agreement to which it
is a party.
(ii) Each of the Transferor and TMCC has duly authorized,
executed and delivered this Agreement and each Basic Agreement to
which it is a party, and, assuming the due authorization, execution
and delivery thereof by the
13
other parties thereto, each Basic Agreement to which the Transferor or
TMCC is a party constitutes a legally valid and binding obligation of
the Transferor and TMCC, as applicable, enforceable in accordance with
its respective terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect
affecting creditors' rights generally and by the application of
general principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity), including, without
limitation (a) the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and (b) concepts of
materiality, reasonableness, good faith and fair dealing.
(iii) The Certificates have been duly and validly
authorized and, when executed and authenticated by the Trustee as
specified in the Securitization Trust Agreement and, in the case of
the Class A Certificates, delivered against payment of the
consideration specified in this Agreement and, in the case of the
Class B Certificates, paid for pursuant to the Purchase Agreement
dated September __, 1997 between the Transferor, TMCC and ▇▇▇▇▇▇▇
Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, will be duly and validly
issued and outstanding and entitled to the benefits of the
Securitization Trust Agreement, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws now or
hereafter in effect affecting creditors' rights generally and by the
application of general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity),
including, without limitation (a) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy
and (b) concepts of materiality, reasonableness, good faith and fair
dealing.
(iv) No authorization, approval, consent, or order of any
court or governmental agency or body is required, under the Federal
law of the United States or the laws of the State of California or the
State of New York, for the consummation by either the Transferor or
TMCC of the transactions contemplated in this Agreement or any Basic
Agreement except such as may be required under the Act, the Rules and
Regulations or securities laws of any state or foreign jurisdiction,
and those authorizations, approvals, consents, orders and filings
which have previously been obtained or made are in full force and
effect as of the Closing Date; provided, that such counsel need
express no opinion as to state or foreign securities laws, and the
opinion set forth in this sentence is limited to such authorizations,
approvals, consents and orders which, in such counsel's experience,
are normally applicable to transactions of the type contemplated by
the Basic Documents; and provided, further, that such counsel need
express no opinion with respect to any consent or approval relating to
the authority to lease motor vehicles, originate lease contracts or to
service such leased motor vehicles and lease contracts.
(v) To such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened, to which the
Transferor or
14
TMCC is a party or of which any property of the Transferor or TMCC is
the subject required to be disclosed in the Registration Statements,
other than those disclosed therein, or (A) asserting the invalidity
of this Agreement, any Basic Agreement or the Certificates, (B)
seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this
Agreement or the Basic Agreements, (C) that would, if determined
adversely to TMCC or the Transferor, materially and adversely affect
the performance by the Transferor or TMCC of its respective
obligations under, or the validity or enforceability of, this
Agreement, any Basic Agreement or the Certificates or (D) seeking
adversely to affect the federal income tax attributes of the
Certificates as described in the Prospectus under the heading
"Material Federal Income Tax Consequences" or the California income
and franchise tax attributes of the Class A Certificates.
(vi) The Certificates and the Basic Agreements each
conform in all material respects with the respective descriptions
thereof contained in the Registration Statement and the Prospectus.
(vii) The statements in the Prospectus under the
captions "Summary", "Risk Factors", "Description of the Certificates",
"Assets of the Trust" and "Additional Document Provisions", insofar as
such statements purport to summarize certain provisions of the 1997-A
SUBI, the UTI Certificates, the Certificates, the Basic Agreements and
the Contingent and Excess Liability Insurance Policies, provide a fair
summary of such provisions.
(viii) The statements in the Prospectus under "Risk
Factors -- Risks Associated with Consumer Protection Laws", "-- Risks
Associated with ERISA Liabilities", "-- Risks Associated with
Vicarious Tort Liability on Leased Vehicles", "-- Risks Associated
with Possible Insolvency of TMCC; Substantive Consolidation with TMCC"
and "-- Legal Proceedings Relating to Lease Contracts", "Additional
Document Provisions", "Certain Legal Aspects of the Titling Trust",
"Certain Legal Aspects of the Contracts and the Leased Vehicles",
"Material Federal Income Tax Consequences" and "ERISA Considerations",
to the extent that they constitute matters of law or legal conclusions
relating to U.S. federal law or the laws of the State of California,
have been reviewed by such counsel and are correct in all material
respects.
(ix) Neither the Titling Trust nor the Securitization
Trust will be classified as an association taxable as a corporation,
or a publicly traded partnership taxable as a corporation, for federal
income tax purposes or California income or franchise tax purposes.
The Class A Certificates will be classified as indebtedness for
federal income tax purposes and for California income and franchise
tax purposes.
15
(x) No authorization, approval, consent or order of any
court or governmental authority or agency is required in connection
with the issuance of the 1997-A SUBI Certificate, the UTI Certificates
or the Certificates, the offering of the Class A Certificates or the
sale of the Class A Certificates to the Underwriters, except as may be
required under the Act and except those authorizations, approvals,
consents and orders which have previously been obtained and are in
full force and effect as of the Closing Date; provided that such
counsel need express no opinion as to state or foreign securities laws
and the opinion set forth in this sentence is limited to such
authorizations, approvals, consents and orders which, in such
counsel's experience, are normally applicable to transactions of the
type contemplated by the Basic Documents.
(xi) The Registration Statement has become effective under
the Act, and, to the knowledge upon due inquiry of such counsel, no
stop order suspending the effectiveness of the Registration Statement
has been issued under the Act and no proceedings for that purpose have
been initiated or threatened by the Commission under the Act, and the
Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates,
appeared on its face to be appropriately responsive in all material
respects to the applicable requirements of the Act and the Rules and
Regulations, except that such counsel need not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus
except for those as contemplated by clauses (vii) and (viii) of
Section 6(d)(2), in each case to the extent set forth therein, and
such counsel need not opine as to the financial statements and related
notes, schedules and other financial and statistical data included or
incorporated by reference therein.
(xii) None of the Titling Trust Agreement, the 1997-A
SUBI Supplement, or the Securitization Trust Agreement are required to
be qualified under the Trust Indenture Act of 1939, as amended (the
"1939 Act"); and the Indenture has been duly qualified under the 1939
Act.
(xiii) None of the Transferor, TMCC, the Titling Trust
or the Securitization Trust is an "investment company" or is
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act.
[(xiv) If TMCC were to become a debtor in a case under
the Bankruptcy Code, the 1997-A SUBI Assets and the 1997-A SUBI
Certificate would not be part of the bankruptcy estate of TMCC and it
would not be a proper exercise by a federal bankruptcy court of its
equitable jurisdiction to substantively consolidate the assets of the
Titling Trust, the Transferor or the Securitization Trust with the
assets and liabilities of TMCC. The transfer of the 1997-A SUBI
Certificate by TMCC to the Transferor constitutes a sale of the 1997-A
SUBI Certificate and the
16
1997-A SUBI Assets evidenced thereby. The transfer of the 1997-A SUBI
Certificate by the Transferor to the Securitization Trust either (A)
constitutes a sale of the 1997-A SUBI Certificate and the 1997-A SUBI
Assets evidenced thereby or (B) if such transfer does not constitute a
sale, then the Securitization Trust Agreement and the delivery to and
possession by the Securitization Trustee of the 1997-A SUBI
Certificate creates a valid first priority perfected security
interest, for the benefit of the Securitization Trustee on behalf of
the Certificateholders, in the Transferor's right, title and interest
in the 1997-A SUBI Certificate, the Reserve Fund and the proceeds
thereof.]
In addition, such counsel shall state that such counsel has participated in
conferences with the officers and other representations of TMCC and the
Transferor, representatives of their independent public accountants and the
Underwriters, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such counsel is not
passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained or incorporated by
reference therein and has not made any independent check or verification
thereof, during the course of such participation (relying as to factual matters
as to materiality to a large extent upon the statements of officers and other
representatives of TMCC and the Transferor), such counsel does not believe that
the Registration Statement, at the Effective Time, or any such amendment or
supplement, as of its effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus, at the date thereof (or any such amendment or supplement, as of its
respective date) or at the Closing Date included or includes an untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; it being understood that such counsel need
not make a statement as to any financial statements, schedules or other
financial or statistical data contained or incorporated by reference in any
Registration Statement or the Prospectus or the Indenture Trustee's Statement of
Qualification on Form T-1.
(3) Reliance letters relating to each legal opinion relating to the
transactions contemplated by this Agreement and the Basic Agreements
rendered by counsel to the Transferor or TMCC to the Securitization
Trustee, the Titling Trustee and each Rating Agency.
(4) The favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special
Delaware counsel to the Titling Trust, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters, to the effect that:
(i) The Titling Trust Agreement is the legal, valid and
binding agreement of TMCC, the Titling Trustee and First Bank,
enforceable against each of them in accordance with its terms.
17
(ii) The Titling Trust has been duly formed and validly
existing as a business trust under the Delaware Business Trust Act, 12
DEL C. SECTION 3801 ET SEQ. (the "Delaware Act").
(iii) The Titling Trust has the power and authority under
the Delaware Act and the Titling Trust Agreement, and the Titling
Trust Agreement authorizes the Titling Trustee, to execute, deliver
and perform its obligations under each Basic Agreement to which it is
a party.
(iv) To the extent that Article 9 of the Uniform
Commercial Code as in effect in the State of Delaware (the "UCC") is
applicable (without regard to conflict of laws principles), and
assuming that a security interest in the 1997-A Contracts created by
the Securitization Trust Agreement has been duly created and has
attached, upon the filing of the Financing Statement with the
Secretary of State of the State of Delaware, the Securitization
Trustee will have a perfected security interest in the Titling Trust's
rights in the 1997-A Contracts and the proceeds thereof, and such
security interest will be prior to any other security interest granted
by the Titling Trust that is perfected solely by the filing of
financing statements under the UCC, excluding purchase money security
interests under SECTION 9-312(4) of the UCC and temporarily perfected
security interests in proceeds under SECTION 9-306(3) of the UCC.
(v) No re-filing or other action is necessary under the
UCC in the State of Delaware in order to maintain the perfection of
such security interest except for the filing of continuation
statements at five year intervals.
(vi) The 1997-A SUBI Certificate and the UTI Certificates
have been duly and validly authorized and, when executed,
authenticated and delivered pursuant to the 1997-A SUBI Supplement,
the UTI Supplement and the Titling Trust Agreement, will be duly and
validly issued and outstanding and entitled to the benefits of the
1997-A SUBI Supplement, the UTI Supplement and the Titling Trust
Agreement.
(vii) Under 12 DEL. C. SECTION 3805(b), no creditor of any
holder of a SUBI Certificate or a UTI Certificate (including creditors
of TMCC, as the holder of the UTI Certificate) shall have any right to
obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the Titling Trust except in
accordance with the terms of the Titling Trust Agreement.
(5) The favorable opinion of ▇▇▇▇▇▇ Cook LLP, special counsel to TMCC
and the Titling Trust, with respect to various licensing, consumer
protection and other state law matters in the form previously agreed on
with the Representative and counsel for the Underwriters.
18
(6) The favorable opinion of [ ], counsel to the
Securitization Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel to the Underwriters, to the
effect that:
(i) U.S. Bank has been duly incorporated and is validly
existing as a national banking association, in good standing under the
laws of United States with full power and authority (corporate and
other) to own its properties and conduct its business, as presently
conducted by it, and to enter into and perform its obligations as
Securitization Trustee and Trust Agent under each Basic Agreement to
which U.S. Bank is a party.
(ii) Each Basic Agreement to which U.S. Bank is a party
has been duly authorized, executed and delivered by U.S. Bank and,
assuming the due authorization, execution and delivery thereof by the
other parties thereto, will constitute a legal, valid and binding
obligation of U.S. Bank enforceable 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 (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(iii) The Certificates have been duly executed, authenticated
and delivered by the Securitization Trustee.
(iv) Neither the execution nor delivery by U.S. Bank of
each Basic Agreement to which it is a party nor the consummation of
any of the transactions by U.S. Bank contemplated thereby require the
consent or approval of, the giving of notice to, the registration with
or the taking of any other action with respect to, any governmental
authority or agency under any existing federal or state law governing
the banking or trust powers of U.S. Bank.
(v) The execution and delivery of each Basic Agreement to
which U.S. Bank is a party and the performance by U.S. Bank of its
terms do not conflict with or result in a violation of (A) any federal
or state law or regulation governing the banking or trust powers of
U.S. Bank (B) the Articles of Association or By-Laws of U.S. Bank, or
(C) to the best knowledge of such counsel, any indenture, lease, or
material agreement to which U.S. Bank is a party or to which its
assets are subject.
(vi) All of the issued and outstanding capital stock of
the Titling Trustee is owned by U.S. Bank, free and clear of any
Liens.
19
(7) The favorable opinion of __________________, counsel to the
Titling Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and counsel for the Underwriters, to the
effect that:
(i) The Titling Trustee has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware with corporate power and authority to own, lease
and operate its properties, to conduct its business as described in
the Registration Statement and to enter into and perform its
obligations under each Basic Agreement to which it is a party; to the
best of their knowledge and information, the Titling Trustee is duly
qualified as a foreign corporation to transact business and is in good
standing in California, Florida, Michigan, Pennsylvania and Ohio; and
the shares of issued and outstanding capital stock of the Titling
Trustee have been duly authorized and validly issued, are fully paid
and non-assessable and are owned by U.S. Bank.
(ii) Each Basic Agreement to which the Titling Trustee is
a party has been duly authorized, executed and delivered by the
Titling Trustee and, assuming the due authorization, execution and
delivery thereof by the other parties thereto, will constitute legal,
valid and binding obligations of the Titling Trustee enforceable in
accordance with their respective 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
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) The 1997-A SUBI Certificate and the UTI Certificates
have been duly executed, authenticated and delivered by the Titling
Trustee.
(iv) Neither the execution nor delivery by the Titling
Trustee of each Basic Agreement to which it is a party nor the
consummation of any of the transactions by the Titling Trustee
contemplated thereby require the consent or approval of, the giving of
notice to, the registration with or the taking of any other action
with respect to, any person or entity, including any governmental
authority or agency under any existing federal or state law.
(v) The execution and delivery of each Basic Agreement to
which the Titling Trustee is a party and the performance by the
Titling Trustee of their respective terms do not conflict with or
result in a violation of its articles of incorporation or bylaws of
the Titling Trustee or, to the best of such counsel's knowledge, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party, by which it may be bound or to
which any of its property or assets is subject.
20
(8) The favorable opinion of ▇▇▇▇▇ & Wood LLP, counsel for the
Underwriters, dated the Closing Date, with respect to the existence of the
validity of the Certificates and such other related matters as the
Representative shall request. In rendering such opinion, ▇▇▇▇▇ & Wood LLP
may rely on the opinions of counsel referred to above.
(e) Each Class of Class A Certificates shall be rated in the highest
rating category by each of ▇▇▇▇▇'▇ and Standard & Poor's.
(f) On or prior to the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance of the
Certificates and sale of the Class A Certificates as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the parties to the Basic
Agreements in connection with the issuance of the Certificates and sale of the
Class A Certificates as herein contemplated shall be reasonably satisfactory in
form and substance to the Representative and counsel for the Underwriters.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representative by notice to the Transferor and TMCC at any time at or prior to
the Closing Date, and such termination shall be without liability of any party
to any other party except as provided in Section 5(h) hereof.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Transferor and TMCC will, jointly and severally, indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, as incurred, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
neither the Transferor nor TMCC will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Transferor or TMCC by any Underwriter through the
Representative specifically for use therein; provided that neither TMCC nor the
Transferor shall be liable under this subsection (a) to the extent that such
losses, claims, damages or liabilities arose out of or are based upon an untrue
statement or omission made in any preliminary prospectus that is corrected in
the final Prospectus (or any amendment or supplement thereto) if the
21
person asserting such loss, claim, damage or liability was not given
the final Prospectus (or any amendment or supplement thereto) on or
prior to the confirmation of the sale of the Certificates.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Transferor and TMCC against any losses, claims, damages or
liabilities, joint or several, as incurred, to which the Transferor or TMCC may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Transferor or TMCC by such
Underwriter through the Representative specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Transferor or
TMCC in connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under Section 7 (a) or
(b) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in Section 7(a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Transferor and TMCC on the one hand and the Underwriters on the other from
the offering of the Class A Certificates or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Transferor and TMCC on
the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Transferor and TMCC
22
on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Transferor and TMCC bear to the total
underwriting discounts and commissions and the service fee specified in Section
5(h) received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Transferor or TMCC or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this Section 7(d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this Section 7(d). Notwithstanding the provisions
of this Section 7(d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Class A
Certificates underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this Section 7(d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Transferor and TMCC under this Section shall be
in addition to any liability which the Transferor or TMCC may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Transferor or TMCC, to each
officer of the Transferor or TMCC who has signed the Registration Statement and
to each person, if any, who controls the Transferor or TMCC within the meaning
of the Act.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Transferor and TMCC or their respective officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Transferor, TMCC or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Class A Certificates. If for any
reason the purchase of the Class A Certificates by the Underwriters is not
consummated, the Transferor and TMCC shall remain responsible for the expenses
to be paid or reimbursed by them pursuant to Section 5(h) hereof and the
respective obligations of the Transferor, TMCC and the Underwriters pursuant to
Section 7 hereof shall remain in effect.
23
9. TERMINATION OF AGREEMENT. The Representative may terminate this
Agreement, by notice to the Transferor and TMCC, at any time prior to or at the
Closing Date (i) if there has been any material adverse change in the condition,
financial or otherwise, or in the business affairs or business prospects of the
Transferor, TMCC or the Titling Trust which, in the reasonable judgment of the
Representative (after consultation with the Underwriters), materially impairs
the investment quality of the Class A Certificates, or makes it impractical or
inadvisable to proceed with the completion of the sale of and payment for the
Class A Certificates; (ii) if there has occurred any downgrading in the rating
of the debt securities of TMCC or Toyota Motor Sales, U.S.A., Inc. or any of
their direct or indirect subsidiaries by any "nationally recognized statistical
rating organization" (as such term is defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) if there has
occurred any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by the United States Congress or any
other substantial national or international calamity or emergency if, in the
reasonable judgment of the Representative (after consultation with the
Underwriters), the effect of any such outbreak, escalation, declaration calamity
or emergency makes it impractical or inadvisable to proceed with completion of
the sale of and payment for the Class A Certificates; (iv) if there has
occurred any suspension or limitation of trading in securities generally on the
New York Stock Exchange, the Luxembourg Stock Exchange or The Stock Exchange of
Hong Kong Limited or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of TMCC on any exchange or in the
over-the-counter market; or (v) if a banking moratorium has been declared by
either federal, New York or California authorities.
10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters shall fail at the Closing Date to purchase the Class A
Certificates which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representative shall have the right, but
not the obligation, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if,
however, the Representative shall not have completed such arrangements within
such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the total aggregate principal amount of the Class A
Certificates, the non-defaulting Underwriters shall be obligated to
purchase the full amount thereof in such proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the total aggregate principal amount of the Class A Certificates,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
24
No action pursuant to this Section shall relieve any defaulting Underwriter
from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representative or the Transferor shall have the right
to postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangement.
11. NOTICES. All communications hereunder will be in writing and, if sent
to (i) the Underwriters, shall be directed to the Representative and will be
mailed, delivered or sent by facsimile and confirmed to it at ▇▇▇▇▇▇▇ Lynch,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, World Financial Center, New York, New York
10281, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇, Managing Director, Asset Backed Securities
Group (facsimile number 212-449-9015); (ii) the Transferor, will be mailed,
delivered or sent by facsimile and confirmed to it at Toyota Leasing, Inc.,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasury
Department (facsimile number 310-787-6194); or (iii) TMCC, will be mailed,
delivered or sent by facsimile and confirmed to it at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasury Department (facsimile
number 310-787-6194).
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF UNDERWRITERS. (a) With
respect to any offers or sales of the Class A Certificates outside the United
States (and solely with respect to any such offers and sales) each Underwriter
severally and not jointly makes the following representations and agrees that:
(i) United Kingdom
(A) in relation to the Class A Certificates which have a maturity of one
year or more, it has not offered or sold and, prior to the expiry of
the period of six months from the Issue Date in respect of any such
the Class A Certificates, will not offer or sell any such the Class A
Certificates to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations
1995;
(B) it has complied and will comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it in
relation to the Class A Certificates in, from or otherwise involving
the United Kingdom; and
25
(C) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the
issue of any of the Class A Certificates to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements)(Exemptions) Order 1996 (AS AMENDED) or is
a person to whom the document may otherwise lawfully be issued or
passed on.
(ii) Germany
in connection with the initial placement of any Class A Certificates
in Germany, it will offer and sell such Class A Certificates (i) only
for an aggregate purchase price per purchaser of at least DM 80,000
(or the foreign currency equivalent) or such other amount as may be
stipulated from time to time by applicable German law or (ii) as may
otherwise be permitted in accordance with applicable German law.
(iii) Hong Kong
each Underwriter represents and agrees that it has not, directly or
indirectly, offered or sold and will not, directly or indirectly,
offer or sell in Hong Kong, by means of any document, any Class A
Certificates other than to persons whose ordinary business it is to
buy or sell shares or debentures, whether as principal or agent, or in
circumstances which do not constitute an offer to the public within
the meaning of the Companies Ordinance (Cap. 32) of Hong Kong. Each
Underwriter further represents and agrees that, unless it is a person
who is permitted to do so under the securities laws of Hong Kong, it
has not issued, or had in its possession for the purposes of issuing,
and it will not issue, or have in its possession for the purposes of
issuing, any advertisement, invitation or document relating to Class A
Certificates other than with respect to Class A Certificates intended
to be disposed of to persons outside Hong Kong or to persons whose
business involves the acquisition, or disposal or holding of
securities, whether as principal or agent.
(iv) General
(A) Each Underwriter represents and agrees that it will comply with all
applicable laws and regulations in each jurisdiction in which it
purchases, offers or sells Class A Certificates or possesses or
distributes the Prospectus or any other offering material and will
obtain any consent, approval or permission required by it for the
purchase, offer or sale by it of Class A Certificates under the laws
and regulations in force in any jurisdiction to which it is subject or
in which it makes such purchases, offers or sales and neither the
Transferor, TMCC nor any other Underwriter shall have any
responsibility therefor;
26
(B) No action has been or will be taken by such Underwriter that would
permit a public offering of the Class A Certificates or possession or
distribution of any offering material in relation to the Class A
Certificates in any jurisdiction where action for that purpose is
required unless the Transferor or TMCC has agreed to such actions and
such actions have been taken;
(C) Each Underwriter represents and agrees that it will not offer, sell or
deliver any of the Class A Certificates or distribute any such
offering material in or from any jurisdiction except under
circumstances which will result in compliance with applicable laws and
regulations and which will not impose any obligation on the Transferor
or TMCC or the Underwriters;
(D) Such Underwriter acknowledges that it is not authorized to give any
information or make any representations in relation to the Class A
Certificates other than those contained or incorporated by reference
in the Prospectus for the Class A Certificates and such additional
information, if any, as the Transferor or TMCC shall, in writing,
provide to and authorize such Underwriter so to use and distribute to
actual and potential purchasers of Class A Certificates;
(b) The Underwriters agree to provide a letter as soon as practicable
after the Closing Date substantially to the effect that, based on a thorough
survey of the distribution of the Class A-1, Class A-2 and Class A-3
Certificates, the Underwriters have calculated that each Class of such
Certificates has been distributed to more than 100 investors who are independent
of the Securitization Trust, the Titling Trust, the Transferor and TMCC and each
other.
(c) The Underwriters shall provide the Transferor and TMCC from time to
time (but no less frequently than weekly), information with respect to the
amounts and prices at which the Class A Certificates are sold to investors to be
used solely for transmission to the staff of the Commission as correspondence
(I.E., not publicly available).
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to any
otherwise applicable principles of conflicts of laws.
27
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us one of the counterparts duplicate hereof, whereupon
it will become a binding agreement between the Transferor and TMCC and the
Underwriters in accordance with its terms.
Very truly yours,
TOYOTA MOTOR CREDIT CORPORATION
By: _______________________________
Name:
Title:
TOYOTA LEASING, INC.
By: _______________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written.
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
By: __________________________________
Name:
Title:
For itself and as Representative of the other Underwriters named in Schedule I
hereto.
28
SCHEDULE I
Principal Amount of Principal Amount of Principal Amount of
Class A-1 Class A-2 Class A-3
Name of Underwriter Certificates Certificates Certificates
------------------- ------------------- ------------------- -------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated . . . . . . . . . . . . . $[ ] $[ ] $[ ]
▇▇▇▇▇▇ Brothers Inc. . . . . . . . . . . [ ] [ ] [ ]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated . . . [ ] [ ] [ ]
------------- ------------- -------------
Total . . . . . . . . . . . . . . . [ ] [ ] [ ]
------------- ------------- -------------
------------- ------------- -------------
SI-1
