EXHIBIT 10.1
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TOYOTA LEASE TRUST
(a Delaware Business Trust)
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AMENDED AND RESTATED
TRUST AND SERVICING AGREEMENT
Among
TOYOTA MOTOR CREDIT CORPORATION,
TMTT, INC.
and
(For certain limited purposes only)
FIRST BANK NATIONAL ASSOCIATION
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Dated as of October 1, 1996
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
CREATION OF TITLING TRUST; GRANTOR'S INTEREST
SECTION 2.01 Creation of Titling Trust. . . . . . . . . . . . . . . . . 1
SECTION 2.02 Business Trust . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.03 Offices . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.04 Purposes. . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.05 Document Execution and Performance. . . . . . . . . . . . . 3
SECTION 2.06 Additional Beneficiaries. . . . . . . . . . . . . . . . . . 3
SECTION 2.07 Tax Reporting and Characterization. . . . . . . . . . . . . 4
ARTICLE III
BENEFICIAL INTERESTS IN THE TITLING TRUST
SECTION 3.01 Sub-Trusts: Creation of UTI and SUBIs . . . . . . . . . . . 4
SECTION 3.02 Beneficiary Liabilities . . . . . . . . . . . . . . . . . . 6
SECTION 3.03 Insurance Policies. . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.04 Allocation of Liabilities and Indemnification . . . . . . . 8
ARTICLE IV
THE SERVICER
SECTION 4.01 Duties of the Servicer. . . . . . . . . . . . . . . . . . . 8
SECTION 4.02 Liability of Servicer; Indemnities. . . . . . . . . . . . . 9
SECTION 4.03 Merger, Consolidation, or Assumption of the Obligations
of, the Servicer. . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.04 Limitation on Liability of Servicer and Others. . . . . . . 10
SECTION 4.05 Servicer Not to Resign; Delegation of Duties. . . . . . . . 11
SECTION 4.06 Servicing Compensation . . . . . . . . . . . . . . . . . . 12
SECTION 4.07 Powers of Attorney. . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.08 Protection of Title to Titling Trust . . . . . . . . . . . 13
ARTICLE V
PAYMENTS
SECTION 5.01 Payments from Titling Trust Assets Only . . . . . . . . . . 13
SECTION 5.02 Manner of Payment . . . . . . . . . . . . . . . . . . . . . 14
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ARTICLE VI
THE TITLING TRUSTEE
SECTION 6.01 Duties and Powers of Titling Trustee. . . . . . . . . . . . 14
SECTION 6.02 Duty of Care. . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.03 Certain Matters Affecting the Titling Trustee . . . . . . . 16
SECTION 6.04 Titling Trustee Not Liable for Certificates or Losses. . . 18
SECTION 6.05 Indemnity of Titling Trustee and Trust Agents . . . . . . . 19
SECTION 6.06 Titling Trustee's Right Not to Act. . . . . . . . . . . . . 19
SECTION 6.07 Qualification of Titling Trustee. . . . . . . . . . . . . . 20
SECTION 6.08 Resignation or Removal of Titling Trustee . . . . . . . . . 20
SECTION 6.09 Successor Titling Trustee . . . . . . . . . . . . . . . . . 20
SECTION 6.10 Merger or Consolidation of Titling Trustee. . . . . . . . . 21
SECTION 6.11 Appointment of Co-Titling Trustee, Separate Titling
Trustee, or Nominee . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.12 Representations, Warranties and Covenants of Titling
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6.13 Titling Trustee's Fees and Expenses . . . . . . . . . . . . 24
SECTION 6.14 No Petition . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.15 Stock of TMTT, Inc. . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VII
ACCOUNTS; CASH FLOWS; PERMITTED INVESTMENTS
SECTION 7.01 Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.02 Relationship to Securitized Financings. . . . . . . . . . . 28
SECTION 7.03 SUBI Lease Funding Accounts . . . . . . . . . . . . . . . . 28
SECTION 7.04 Rebalancing After Third Party Claim . . . . . . . . . . . . 29
ARTICLE VIII
TERMINATION
SECTION 8.01 Termination of the Titling Trust. . . . . . . . . . . . . . 29
SECTION 8.02 Termination at the Option of Beneficiary. . . . . . . . . . 30
SECTION 8.03 Titling Trustee Actions Upon Termination. . . . . . . . . . 30
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ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 9.02 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 9.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 9.04 Severability of Provisions. . . . . . . . . . . . . . . . . 31
SECTION 9.05 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 9.06 Successors and Assigns. . . . . . . . . . . . . . . . . . . 31
SECTION 9.07 Table of Contents and Headings. . . . . . . . . . . . . . . 31
EXHIBITS
EXHIBIT A -- Form of Certificate of Trust . . . . . . . . . . . . . . . . A-1
EXHIBIT B -- Form of UTI Supplement, including
Form of UTI Certificate . . . . . . . . . . . . . . . . . B-1
EXHIBIT C -- Form of SUBI Supplement, including
Form of SUBI Certificate . . . . . . . . . . . . . . . . C-1
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AMENDED AND RESTATED TRUST AND SERVICING AGREEMENT, dated as of October
1, 1996 among TOYOTA MOTOR CREDIT CORPORATION, a California corporation (as
grantor, initial beneficiary and servicer) and TMTT, INC., a Delaware
corporation, as Titling Trustee, and, for the limited purposes set forth
herein, FIRST BANK NATIONAL ASSOCIATION, a national banking association, as
Trust Agent, amending and restating in its entirety the Trust and Servicing
Agreement dated as of October 1, 1996 among the same parties, and herein
referred to as the "Titling Trust Agreement" or this "Agreement".
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 agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. For all purposes of this Titling Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, capitalized terms used and not otherwise defined herein
shall have the meanings ascribed thereto in the Annex of Definitions attached
hereto for all purposes of this Titling Trust Agreement. In the event of any
conflict between a definition set forth herein and that set forth in the
Annex of Definitions, that set forth herein shall prevail. All terms used in
this Titling Trust Agreement include, as appropriate, all genders and the
plural as well as the singular. All references such as "herein", "hereof" and
the like shall refer to this Titling Trust Agreement as a whole and not to
any particular article or section within this Titling Trust Agreement. All
references such as "includes" and variations thereon shall mean "includes
without limitation" and references to "or" shall mean "and/or". Any reference
to the "Titling Trustee, acting on behalf of the Titling Trust", or words of
similar import, shall be deemed to mean the Titling Trustee, acting on behalf
of Toyota Lease Trust and all beneficiaries thereof.
ARTICLE II
CREATION OF TITLING TRUST; GRANTOR'S INTEREST
SECTION 2.01 CREATION OF TITLING TRUST.
There is hereby formed in accordance with the provisions of the Delaware
Act, a Delaware business trust to be known as the Toyota Lease Trust. The
Titling Trustee is hereby authorized and vested with the power and authority
to make and execute contracts, instruments, certificates, agreements and
other writings on behalf of the Titling Trust as set forth herein and to xxx
and be sued on behalf of the Titling Trust.
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The Titling Trustee does hereby accept and agree to hold in trust, for
the benefit of the UTI Beneficiary and such other Persons as may become
Beneficiaries hereunder from time to time, all Titling Trust Assets conveyed
or to be conveyed pursuant to Section 3.01, and all monies and proceeds that
may be received thereunder, subject to the terms of this Agreement.
SECTION 2.02 BUSINESS TRUST.
It is the intention of the parties hereto that the Titling Trust be a
business trust under the Delaware Act and that this Agreement shall
constitute the governing instrument of the Titling Trust. Effective as of the
date hereof, the Titling Trustee shall have all rights, powers and duties set
forth herein and in the Delaware Act with respect to accomplishing the
purposes of the Titling Trust. The Titling Trustee shall file or cause to be
filed a certificate of trust for the Titling Trust pursuant to the Delaware
Act in substantially the form of Exhibit A attached hereto.
SECTION 2.03 OFFICES. The principal office of the Titling Trust, and
such additional offices as the Titling Trustee may establish, shall be
located at such place or places inside or outside of the State of Delaware as
the Titling Trustee may designate from time to time by written notice to each
Beneficiary and the Servicer. Initially, such principal office shall be in
the care of the Titling Trustee at the Corporate Trust Office.
SECTION 2.04 PURPOSES.
(a) The purposes of the Titling Trust are to: (i) take assignments and
conveyances of, hold in trust and release its ownership interest in the Titling
Trust Assets as nominee holder of legal title and for the benefit of, and at the
direction of, the Beneficiaries; (ii) engage in any of the other activities
described or authorized in this Agreement, any UTI Supplement or SUBI
Supplement, or in any amendment to this Agreement or any UTI Supplement or SUBI
Supplement; and (iii) engage in any and all activities that are necessary or
appropriate to accomplish the foregoing or that are incidental thereto or
connected therewith. The Titling Trust shall not engage in any activity other
than in connection with the foregoing or other than as required or authorized by
applicable law or (subject to the terms of this Agreement) the documents
relating to a Securitized Financing.
In consideration of the receipt of beneficial interests in the Titling
Trust described in Article III, the Grantor shall from time to time assign,
transfer, contribute or convey, or cause to be assigned, transferred,
contributed or conveyed, the Titling Trust Assets to the Titling Trust. The
Titling Trust, and the Titling Trustee on behalf of the Titling Trust, shall
hold in trust all legal rights and interests in the Titling Trust Assets for the
benefit of the Beneficiaries.
The UTI Beneficiary may from time to time designate the Titling Trust or
the Titling Trustee, on behalf of the Titling Trust, as the nominee holder of
legal title to Contracts that are Eligible Contracts, the related Leased
Vehicles and other Titling Trust Assets. In connection therewith, such Leased
Vehicles will be titled in the name of the Titling Trust or the Titling Trustee,
on behalf of the Titling Trust, and the Titling Trustee will accept such
designation and, subject to the other terms
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of this Agreement, will permit the related Certificates of Title to be titled
in the name of the Titling Trust or the Titling Trustee, on behalf of the
Titling Trust. Legal title to all Titling Trust Assets shall be vested in
the Titling Trust or the Titling Trustee, on behalf of the Titling Trust, as
a separate legal entity except to the extent otherwise specifically provided
herein or in any other document relating to a Securitized Financing or where
applicable state law requires any Titling Trust Asset to be vested otherwise,
in which case the Titling Trustee will, at the direction of the UTI
Beneficiary or the Servicer, cause legal title to be held as required thereby.
(b) The Titling Trustee hereby accepts and agrees to hold in trust all
Titling Trust Assets conveyed to it hereunder, for the use and benefit of, and
as nominee holder of legal title for, the Beneficiaries and any successors and
assigns as may be designated pursuant to the terms hereof or as may otherwise
succeed to the rights of a Beneficiary hereunder. The Servicer may appoint one
or more nominees to hold title to some or all of the Titling Trust Assets in the
name of such nominee title holder for the sole and exclusive benefit of the
Titling Trust and, upon the appointment of such nominee title holder(s), the
Titling Trustee will transfer title to all or such portion of the Titling Trust
Assets as directed by the Servicer.
SECTION 2.05 DOCUMENT EXECUTION AND PERFORMANCE. Each Beneficiary
hereby authorizes and directs the Titling Trustee, and the Titling Trustee
hereby agrees to: (i) at the request of a Beneficiary or the Servicer,
execute and deliver all agreements, instruments or documents necessary or
advisable to accept, or cause the Titling Trust to accept, the designation as
nominee holder of legal title to Contracts, Leased Vehicles and other Titling
Trust Assets as described herein and cause the related Certificates of Title
to be titled in the name of the Titling Trust or the Titling Trustee, on
behalf of the Titling Trust; (ii) take action that is required to be taken by
the Titling Trustee as specified in the documents relating to a Securitized
Financing or at the direction of the relevant Beneficiary in accordance with
applicable law; (iii) exercise its rights and perform its duties as Titling
Trustee as specified in the documents relating to a Securitized Financing;
(iv) at the direction of a Beneficiary (a) release, discharge, sell, assign,
transfer, pledge, convey or otherwise dispose of any right, title or interest
in and to any portion of the Titling Trust Assets comprising the related
Sub-Trust (or to cause the Titling Trust to take any such action), (b) amend
or revoke the terms hereof with respect to all or any portion of the related
Titling Trust Assets or affecting any other provision hereof; and (v) appoint
this as the attorney in fact for the Titling Trust as contemplated by the
Titling Trust Agreement and the related SUBI Servicing Supplement and direct
the Servicer to perform such administrative duties on behalf of the Titling
Trust as are set forth herein.
SECTION 2.06 ADDITIONAL BENEFICIARIES. Notwithstanding any other
provision of this Agreement, the UTI Beneficiary and the Servicer may in writing
designate additional Beneficiaries who shall have the right to designate the
Titling Trust or the Titling Trustee, on behalf of the Titling Trust, as nominee
holder of legal title to Contracts, Leased Vehicles and other Titling Trust
Assets and cause the related Certificates of Title to be titled in the name of
the Titling Trust or the Titling Trustee, on behalf of the Titling Trust. No
Person shall become a Beneficiary until it has delivered to the parties hereto
an agreement in form and substance satisfactory to the Titling Trustee and the
Servicer pursuant to which it agrees to become a party to this Agreement.
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SECTION 2.07 TAX REPORTING AND CHARACTERIZATION.
Consistent with the treatment of the Titling Trust for tax purposes as a
mere nominee holder of legal title of the Titling Trust Assets with respect
to each Sub-Trust, unless otherwise required by appropriate taxing
authorities, the Titling Trust will not file or cause to be filed any annual
or other tax returns with respect to the Titling Trust. Consistent with the
treatment of the UTI Sub-Trust as a mere agent of the UTI Beneficiary for tax
purposes, unless otherwise required by appropriate taxing authorities, the
UTI Beneficiary will not file or cause to be filed any annual or other tax
returns with respect to the UTI Sub-Trust. In the event that the Titling
Trust or the UTI Sub-Trust or the Titling Trustee on behalf of the Titling
Trust or the UTI Sub-Trust is required to file any tax returns, the Servicer
will prepare or cause to be prepared the returns for the Titling Trust, the
Titling Trustee or the UTI Sub-Trust and will deliver such returns to the
Titling Trustee for signature, unless applicable law requires one or more
Beneficiaries to sign such returns, in which case the Servicer will deliver
such returns to such Beneficiary or Beneficiaries.
ARTICLE III
BENEFICIAL INTERESTS IN THE TITLING TRUST
SECTION 3.01 SUB-TRUSTS: CREATION OF UTI AND SUBIS.
(a) Subject to the other provisions of this Section, to the extent
designated by the UTI Beneficiary from time to time, the Titling Trustee
shall establish one or more Sub-Trusts under this Agreement and allocate the
Titling Trust Assets identified by the UTI Beneficiary to each such
Sub-Trust, and the Titling Trustee shall hold such Titling Trust Assets as
Titling Trustee hereunder for the benefit, and subject to the direction, of
the Beneficiaries of such Sub-Trust. Each Sub-Trust shall have the name and
beneficiaries designated by the UTI Beneficiary and shall be a separate
series of the Titling Trust pursuant to Section 3806(b)(2) of the Delaware
Act. The Servicer shall maintain separate and distinct records for each
Sub-Trust, and the Titling Trust Assets allocated to such Sub-Trust shall be
held and accounted for separately from all other Titling Trust Assets.
Subject to the right of the Titling Trustee to allocate certain Liabilities,
charges and reserves as provided herein and in any UTI Supplement or SUBI
Supplement, and in accordance with Section 3804(a) of the Delaware Act or to
the extent otherwise permitted by applicable law, all debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a Sub-Trust shall be enforceable against the Titling Trust Assets
allocated to such Sub-Trust only, and not against the Titling Trust Assets
allocated to any other Sub-Trust. Every note, bond, contract or other
undertaking issued by or on behalf of a Sub-Trust (including any UTI
Certificate or SUBI Certificate) shall include a recitation limiting the
obligation represented thereby to the related Sub-Trust and the Titling Trust
Assets allocated thereto. The Certificate of Trust for the Titling Trust
shall include notice of the limitation of liabilities of each Sub-Trust of
the Titling Trust, in accordance with Section 3804(a) of the Delaware Act.
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(b) In accordance with Section 3806(b) of the Delaware Act, all Titling
Trust Assets that have not been allocated to a SUBI Sub-Trust shall
constitute, and be defined as, the "UTI Assets" and shall be, and be deemed
to be, identified to and assets of the UTI Sub-Trust separate from the assets
of any SUBI Sub-Trust within the Titling Trust. The UTI Sub-Trust shall be a
separate series of the Titling Trust pursuant to Section 3806(b)(2) of the
Delaware Act. In accordance with Section 3.01(a), the Servicer shall maintain
separate and distinct records for the UTI Sub-Trust and the UTI Assets shall
be held and accounted for separately from all other Titling Trust Assets. The
Titling Trustee shall distribute to or upon the order of the UTI Beneficiary,
a UTI representing an undivided interest in the UTI Sub-Trust and the UTI
Assets which may be subdivided and will be represented by one or more UTI
Certificates issued pursuant to one or more related UTI Supplements. Except
as otherwise provided for herein or in a UTI Supplement, all income and other
amounts with respect to the UTI shall be distributed or retained by the
Titling Trustee as directed from time to time by the UTI Beneficiary.
(c) The Titling Trustee shall from time to time, as directed in writing
by the UTI Beneficiary, and subject to Section 3.01(d), identify or cause to
be identified on the books and records of the Titling Trust one or more
separate SUBI Sub-Trusts to be accounted for separately from each other and
from the UTI Sub-Trust within the Titling Trust, and will identify and
allocate, or cause to be identified and allocated, to such SUBI Sub-Trust on
such books and records certain Titling Trust Assets that are not then
allocated to another SUBI Sub-Trust. Upon such allocation, such related SUBI
Assets shall no longer be assets of, or allocated to, the UTI (unless and
until specifically reallocated to the UTI from that SUBI in accordance with
the related SUBI Supplement). Each SUBI shall constitute a separate series of
the Titling Trust pursuant to Section 3806(b)(2) of the Delaware Act and
shall represent the beneficial interest in such SUBI and the SUBI Assets
allocated thereto from time to time. Each SUBI shall be represented by one or
more separate SUBI Certificates issued pursuant to the related SUBI
Supplement. The Titling Trustee shall issue each SUBI Certificate to or upon
the order of the UTI Beneficiary.
(d) Notwithstanding anything to the contrary contained in this Section,
the Titling Trustee shall create a new SUBI Sub-Trust and SUBI and issue to
or upon the order of the UTI Beneficiary one or more SUBI Certificates
evidencing such SUBI by executing and delivering a SUBI Supplement only (i)
upon receipt of a certification of the UTI Beneficiary, dated as of the date
of the issuance of the related SUBI Certificate, to the effect that, as of
the date of such certificate, and after giving effect to the creation of the
SUBI Sub-Trust, the transfer to the UTI Beneficiary of any SUBI Certificates
in connection therewith and the application by the UTI Beneficiary of any net
proceeds from any Securitized Financing involving such SUBI and such SUBI
Certificates, no Event of Servicing Termination or other Early Amortization
Event (or event that, with the passage of time or the giving of notice, or
both, could constitute an Event of Servicing Termination or other Early
Amortization Event), in each case as defined in the relevant Transaction
Documents, shall exist under any Securitized Financing or other agreement or
obligation secured by a UTI Pledge, and (ii) if, as of the date of the
issuance of the SUBI Certificates, the Titling Trustee shall not have
received from any pledgee of a UTI Pledge a notice asserting any such default
under any Securitized Financing or other agreement or obligation so secured.
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(e) The UTI Beneficiary shall not further transfer, assign, or pledge any
beneficial interest in the Titling Trust except as contemplated herein. The UTI
Beneficiary shall at all times maintain any minimum net worth specified in the
related UTI Supplement or any related SUBI Supplement.
(f) Each SUBI Beneficiary shall maintain with respect to the SUBI
relating thereto any minimum interest in that SUBI and the related SUBI
Sub-Trust as may be required by the applicable SUBI Supplement. Each SUBI
Beneficiary shall at all times maintain any minimum net worth specified in
the related SUBI Supplement.
(g) Except to the extent specified in this Agreement or in any
applicable SUBI Supplement, interests in a SUBI or SUBI Certificate shall be
nontransferable, provided that all or any part thereof may be (i) transferred
and assigned to a special purpose subsidiary of TMCC or another vehicle
created for the purpose of a Securitized Financing involving a SUBI, or (ii)
assigned, either absolutely or collaterally, or pledged by the UTI
Beneficiary or the related SUBI Beneficiary to or in favor of a trustee for
one or more securitization trusts solely for the purpose of securing or
otherwise facilitating one or more Securitized Financings, and provided
further that each such assignee or pledgee must (x) give a non-petition
covenant substantially similar to that set forth in Section 6.14, and (y)
execute an agreement between or among itself and each UTI Beneficiary and any
SUBI Beneficiary, to release all claims to the Titling Trust Assets allocated
to the UTI Sub-Trust or any other SUBI Sub-Trust and, in the event that such
release is not given effect, to fully subordinate all claims it may be deemed
to have against the Titling Trust Assets allocated thereto. In the event of a
sale or an absolute assignment, or upon foreclosure in the event of a
collateral assignment or pledge as contemplated in clause (ii), such
purchaser, assignee or pledgee shall be a SUBI Beneficiary in the manner and
to the extent set forth in the related SUBI Certificates so acquired and in
the applicable SUBI Supplement. If so specified in the related SUBI
Supplement, the foregoing provisions restricting the transfer of SUBI
Certificates may be waived upon delivery to the Titling Trustee and the UTI
Beneficiary of an Opinion of Counsel in form and scope reasonably
satisfactory thereto to the effect that a contemplated transfer of SUBI
Certificates will not have any material adverse effect upon the Titling
Trust, any Sub-Trust or the interests of any Beneficiary.
SECTION 3.02 BENEFICIARY LIABILITIES.
(a) The Beneficiary or Beneficiaries of each Sub-Trust shall, as to such
Sub-Trust but not as to any other Sub-Trust, each be jointly and severally
liable to third parties (including the Beneficiary or Beneficiaries of all other
Sub-Trusts) and indemnify, defend and hold harmless the Titling Trustee,
including its officers, directors, employees and agents, for all Liabilities
incurred in connection with the SUBI Assets of such Sub-Trust, including all
state and local taxes assessed on the Titling Trustee or the Titling Trust or
any such other Beneficiary resulting from the allocation of Titling Trust Assets
to such Sub-Trust.
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(b) The UTI Beneficiary shall (to the extent necessary after giving effect
to Section 3.02(a)) indemnify, defend and hold harmless the Titling Trustee,
including its officers, directors, employees and agents, for all Liabilities of
the Titling Trust or the UTI Sub-Trust to third parties to the same extent that
the UTI Beneficiary would be liable if the Titling Trust or the UTI Sub-Trust
were a partnership formed under either of the Delaware Partnership Acts and the
UTI Beneficiary were a general partner thereof.
(c) As set forth in this Section, the Titling Trustee and its
successors, assigns, agents, officers, directors and employees shall be
indemnified, defended and held harmless with respect to any Liabilities
arising out of or in connection with the Titling Trustee's acceptance or
performance of the trusts and duties contained in this Titling Trust
Agreement and in any SUBI Supplement or related SUBI Servicing Supplement.
Notwithstanding the foregoing, in no event shall the Titling Trustee or its
officers, directors or employees, be indemnified, defended or held harmless
for any Liabilities incurred solely (i) by reason of the Titling Trustee's
willful malfeasance, bad faith or negligence or (ii) by reason of the Titling
Trustee's breach of its representations set forth in Section 6.12. The
Titling Trustee shall promptly notify the Beneficiaries of any claim for
which it may seek indemnity. Failure by the Titling Trustee to so notify the
Beneficiaries of a claim for which it seeks indemnification shall not relieve
the Beneficiaries of their obligations under this Section except to the
extent of Liabilities that the Beneficiaries could have avoided if notice had
been so provided.
(d) All third party creditors of the Titling Trust shall be deemed to
be third party beneficiaries for purposes of this Section. The indemnities
contained in this Section shall survive the resignation or termination of the
Titling Trustee, or the termination of this Agreement. Any amounts that are
paid to the Titling Trustee pursuant to this Section shall no longer be
deemed to be Titling Trust Assets immediately after such amounts have been
paid to the Titling Trustee. To the extent provided in this Section, the
Beneficiaries hereby waive the limited liability protection otherwise
afforded under the Delaware Act (including Section 3803 thereof) or any other
law.
SECTION 3.03 INSURANCE POLICIES.
(a) The Grantor will cause to be maintained, and shall not, without the
prior written consent of the Servicer, which consent may not be unreasonably
withheld, or, in the case of a rated Securitized Financing, unless otherwise
specified in the related SUBI Supplement, the consent of each Rating Agency,
cause the termination without replacement of, one or more contingent liability,
excess liability, physical damage and/or umbrella Insurance Policies providing
coverage against third-party claims that may be raised against the Titling
Trust, any Sub-Trust or the Titling Trustee, on behalf of the Titling Trust or
any Sub-Trust, with respect to any Leased Vehicle in an amount at least equal to
$100 million per occurrence, not subject to any annual or aggregate cap on the
number of claims payable, which policy or policies may be a blanket insurance
policy or policies and which policy or policies may contemplate a per occurrence
deductible of up to $__ million.
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(b) The UTI Beneficiary shall cause each of the Contingent and Excess
Liability Insurance Policies referred to in Section 3.03(a) to name the Titling
Trustee or Titling Trust as additional insureds or loss payees.
SECTION 3.04 ALLOCATION OF LIABILITIES AND INDEMNIFICATION.
Notwithstanding any other provision of this Agreement, any Supplement or any
amendment hereto, (i) to the extent that a Liability, including any
indemnification obligation, shall be incurred or suffered with respect to, or
is attributable to, one or more Affected Trust Assets allocated to one or
more Sub-Trusts, the Beneficiaries of each such Sub-Trust shall bear in full
such Liability or indemnification obligation in proportion to the ratio of
the aggregate value of the Affected Trust Assets in the UTI Portfolio or the
related SUBI Portfolio, as the case may be, to the aggregate value of the
Affected Trust Assets, but (ii) to the extent that any such Liability or
indemnification obligation is suffered with respect to all Titling Trust
Assets generally, the Beneficiaries shall bear such Liability or
indemnification obligation in proportion to the ratio of the aggregate value
of the Contracts and Leased Vehicles in the UTI Portfolio or the related SUBI
Portfolio, as the case may be, to the aggregate value of all Contracts and
Leased Vehicles that are Titling Trust Assets.
ARTICLE IV
THE SERVICER
SECTION 4.01 DUTIES OF THE SERVICER. The Servicer is hereby appointed
and authorized to act as attorney-in-fact for the Titling Trust, and in such
capacity shall manage, service, administer and make collections on the
Titling Trust Assets with reasonable care, using that degree of skill and
attention that it exercises with respect to comparable assets that it
services for itself. The Titling Trustee shall, with the consent of the
Servicer, enter into any and all agreements specified by the Beneficiary of
the UTI or a SUBI in order to add, delete or amend any or all of the
obligations of the Servicer hereunder in respect of all or any portion of the
Titling Trust Assets in the UTI Sub-Trust or the related SUBI Sub-Trust. The
Servicer shall follow its customary standards, policies and procedures and,
unless otherwise indicated herein or in the related SUBI Servicing
Supplement, shall have full power and authority, acting alone, to do any and
all things in connection with such managing, servicing, administrating and
collecting that it may deem necessary or desirable in the interest of the
Titling Trust. The foregoing shall not be construed to prevent the Servicer
from implementing new programs, whether on an intermediate pilot or permanent
basis, or on a regional or nationwide basis, or from modifying its standards,
policies and procedures, as long as, in each case, the Servicer does or would
implement such programs, or modify its standards, policies and procedures, in
respect of comparable assets for itself in the ordinary course of business.
Without limiting the generality of the foregoing, the Servicer is hereby
authorized and empowered by the Beneficiaries and the Titling Trust to (x)
modify or extend the term of any Contract on the same terms and conditions it
applies or would apply to comparable assets owned by it, or (y) execute and
deliver, on behalf of the Titling Trust, any and all instruments, certificates
or other documents necessary or advisable to record and maintain title to the
Leased Vehicles in the
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name of the Titling Trust or the Titling Trustee, on behalf of the Titling
Trust, and to release interests of the Titling Trust, the Titling Trustee, on
behalf of the Titling Trust, and each Beneficiary in any Leased Vehicle in
connection with the sale or other disposition of a Leased Vehicle (whether
directly to the Obligor under the Contract relating to the Leased Vehicle or
to a third party) by the related Beneficiary as contemplated by this
Agreement and the other documents relating to a Securitized Financing. The
Servicer also shall be responsible for creating, maintaining and amending the
Schedule of Contracts and Leased Vehicles. The Servicer shall deliver to the
Titling Trustee, upon written request therefor by the Titling Trustee or any
Beneficiary, and upon any Trust Asset Transfer, a revised Schedule of
Contracts and Leased Vehicles current as of a date not more than ten days
prior to the date of such delivery.
The Servicer is hereby authorized to communicate with Obligors in the
course of its servicing of the Contracts and Leased Vehicles in its own name.
The Servicer is hereby authorized to commence, in its own name or in the name
of the Titling Trust, a legal proceeding or participate in a legal proceeding
(including a bankruptcy proceeding) relating to or involving the protection
or enforcement of the interest of the Titling Trust or the related
Beneficiary in any Contract, Leased Vehicle or other Trust Asset. If the
Servicer commences or participates in such legal proceeding in its own name,
the Titling Trust shall thereupon be deemed to have automatically assigned
legal title to each related Leased Vehicle and the Titling Trust's interest
in the related Contract to the Servicer for purposes of commencing or
participating in any such proceeding as a party or claimant, and the Servicer
is authorized and empowered by the Titling Trust to execute and deliver in
the Servicer's name any notices, demands, Claims, responses, affidavits or
other documents or instruments in connection with any such proceeding. The
Titling Trustee shall furnish the Servicer with any powers of attorney and
other documents and take any other steps which the Servicer may deem
necessary or appropriate to enable it to carry out its duties under this
Agreement and the other documents relating to a Securitized Financing.
SECTION 4.02 LIABILITY OF SERVICER; INDEMNITIES.
(a) The Servicer shall be liable in accordance with this Agreement and
the other documents relating to a Securitized Financing only to the extent of
the obligations specifically undertaken by the Servicer and shall have no
other obligations or liabilities hereunder or thereunder. The Servicer shall
indemnify, defend and hold harmless:
(i) (A) the Titling Trust, the Titling Trustee and the Trust
Agent from and against any and all Liabilities arising out of or
resulting from its use, ownership or operation of any Leased Vehicle; and
(B) the Titling Trust, the Titling Trustee and the Trust Agent from and
against any taxes that may at any time be asserted against any of them
with respect to the transactions contemplated by this Agreement (other
than taxes with respect to fees payable hereunder, such fees being
payable by the related Beneficiary, or as herein provided, by the
Servicer), including any state sales, gross receipts, general
corporation, tangible personal property, privilege or license, taxes and
costs and expenses in defending against the same,
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in each case to the extent not paid by the related Obligors and to the
extent related Titling Trust Assets are not available therefor hereunder
or are insufficient therefor;
(ii) the Titling Trust, the Titling Trustee, the Trust Agent
and the Beneficiaries from and against any and all Liabilities to the
extent that such Liabilities arose out of, or are imposed upon, any of
them through the Servicer by reason of its disregard of its obligations
and duties hereunder or thereunder; and
(iii) the Titling Trustee and the Trust Agent from and against all
Liabilities arising out of or incurred in connection with the acceptance or
performance of the trusts and duties contained in this Agreement, except to
the extent that such Liabilities: (A) are due to the willful misfeasance,
bad faith or negligence (except for errors in judgment) of the Titling
Trustee or Trust Agent, (B) arise from the material breach by the Titling
Trustee or the Trust Agent of any of its representations or warranties set
forth in this Agreement, or (C) shall arise out of or be incurred in
connection with the performance by the Titling Trustee of the duties of a
successor Servicer hereunder, or of any such duties on behalf of the
Titling Trustee by the Trust Agent.
(b) Indemnification under this Section shall include reasonable fees
and expenses of counsel and expenses of litigation. If the Servicer has made
any indemnity payments pursuant to this Section and the recipient thereafter
collects any such amounts from others, the recipient shall promptly repay
such amounts collected to the Servicer, without interest, to the extent of
such payments made by the Servicer. Indemnification under this Section shall
survive any transaction described in Section 4.03 with respect to any and all
Titling Trust Assets as of the date of such transaction and any acts,
occurrences or transactions related thereto whether arising before or after
the date of such transaction.
SECTION 4.03 MERGER, CONSOLIDATION, OR ASSUMPTION OF THE OBLIGATIONS
OF, THE SERVICER. Any corporation (i) into which the Servicer may be merged
or consolidated, (ii) resulting from any merger, conversion or consolidation
to which the Servicer shall be a party or (iii) succeeding to the business of
the Servicer and which is otherwise servicing leases or retail installment
sales contracts, which corporation executes an agreement of assumption to
perform every obligation of the Servicer hereunder, shall be the successor to
the Servicer without the execution or filing of any paper or any further act
on the part of any of the parties to this Agreement. The Servicer shall
provide notice of any merger, consolidation or succession pursuant to this
Section 4.03 to the Titling Trustee, the UTI Beneficiary and each Rating
Agency.
SECTION 4.04 LIMITATION ON LIABILITY OF SERVICER AND OTHERS.
(a) Neither the Servicer nor any of its directors, officers, employees or
agents shall be under any liability to the Titling Trust, the Titling Trustee,
the Trust Agent, or any Beneficiary, except as otherwise provided in this
Agreement and the other documents relating to a Securitized Financing, for any
action taken or for refraining from the taking of any action pursuant hereto or
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thereto, or for errors in judgment. Notwithstanding the foregoing, this
provision shall not protect the Servicer or any such Person against any
Liability that would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence (except errors in judgment) in the performance of
duties or by reason of reckless disregard of obligations hereunder or
thereunder. The Servicer and its directors, officers, employees or agents may
rely in good faith on the advice of counsel or on any document of any kind
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder or thereunder.
(b) Except as provided in this Agreement and the other documents
relating to a Securitized Financing, the Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties to service the Titling Trust Assets in accordance
herewith or therewith and that in its opinion may involve it in any expense
or Liability. Notwithstanding the foregoing, the Servicer may undertake any
reasonable action that it may deem necessary or desirable in respect of this
Agreement and the other documents relating to a Securitized Financing and the
rights and duties of the parties hereto or thereto and the interests of any
Beneficiary hereunder or thereunder. In such event, the reasonable legal
expenses and costs for such action and any liability resulting therefrom
shall be expenses, costs and liabilities of the Titling Trust Assets relating
to the applicable Sub-Trust and the Servicer shall be entitled to be
reimbursed therefor solely from funds available therefor.
SECTION 4.05 SERVICER NOT TO RESIGN; DELEGATION OF DUTIES.
(a) Subject to Section 4.03, the Servicer shall not resign from the
obligations and duties imposed on it by this Agreement as Servicer except
upon a determination that the performance of its duties under this Agreement
is no longer permissible under applicable law. Any such determination
permitting the resignation of the Servicer shall be evidenced by an opinion
of counsel to such effect delivered to the Titling Trustee. No such
resignation shall become effective until a successor servicer shall have
assumed the responsibilities and obligations of the Servicer in accordance
with Section 4.03. The Titling Trustee will, in no event, be obligated to
serve as successor servicer except upon its express prior written consent.
(b) The Servicer may not assign any of its rights, powers, duties or
obligations under this Agreement. Notwithstanding the foregoing, the Servicer
may make such an assignment in connection with a consolidation, merger,
conversion or succession effected in compliance with Section 4.03 or in
connection with the transfer to a successor servicer as contemplated by
clause (a) above.
(c) Except as provided in paragraphs (a) and (b) of this Section or in any
other document relating to a Securitized Financing, the duties and obligations
of the Servicer under this Agreement shall continue until this Agreement has
been terminated as provided in Section 8.01 and shall survive the exercise by
the Titling Trustee of any right or remedy under, or the enforcement by the
Titling Trustee of any provision contained in, this Agreement or any other
documents relating to a Securitized Financing.
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(d) Notwithstanding the foregoing, the Servicer may enter into
subservicing agreements with one or more subservicers (which may be Affiliates
of the Servicer) for the servicing and administration (in whole or in part) of
the Contracts and the Leased Vehicles, with the consent of the Beneficiaries
(which consent shall not be unreasonably withheld) if such subservicer is not an
Affiliate of the Servicer. References in this Agreement or any other document
relating to a Securitized Financing to actions taken or to be taken by the
Servicer in servicing the Contracts and Leased Vehicles include actions taken or
to be taken by any such subservicer on behalf of the Servicer. Each such
subservicing agreement will be upon terms and conditions not inconsistent with
this Agreement and the other documents relating to a Securitized Financing and
as the Servicer and any such subservicer may agree and shall contain a non-
petition covenant substantially identical to that set forth in Section 6.14. The
Servicer shall provide the Titling Trustee with a copy of each such subservicing
agreement.
(e) Notwithstanding any subservicing agreement, any of the provisions of
this Agreement or the other documents relating to a Securitized Financing that
relate to agreements or arrangements between the Servicer and any subservicer or
reference to actions that are taken through a subservicer or otherwise, the
Servicer shall remain obligated and liable to the Titling Trust and the Titling
Trustee pursuant to Section 4.02 without diminution of such obligation or
liability by virtue of such delegation or by virtue of indemnification from any
subservicer, to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering the Contracts and Leased
Vehicles.
SECTION 4.06 SERVICING COMPENSATION. The Servicer shall receive such
fees and reimbursement for expenses with respect to the Titling Trust Assets
relating to a Sub-Trust as may be agreed to from time to time between the
Servicer and the related Beneficiary.
SECTION 4.07 POWERS OF ATTORNEY. The Servicer is hereby designated by
each Beneficiary, the Titling Trust, and the Titling Trustee as its true and
lawful attorney-in-fact, with full power and authority to perform any and all
acts related to managing, servicing, administering, collecting or repossessing
any part of the Titling Trust Assets and any and all acts otherwise required or
permitted to be performed by the Servicer pursuant to Section 4.01 or otherwise
under this Agreement and the other documents relating to a Securitized Financing
whether acting in its own name or in the name of the Titling Trust, the Titling
Trustee or any Beneficiary. The Servicer is hereby authorized and empowered to
execute and deliver, on behalf and in the name of each Beneficiary, the Titling
Trust or the Titling Trustee, any and all instruments, certificates or other
documents relating thereto. The Servicer also has the right, power and
authority to designate in writing other persons and entities as true and lawful
attorneys-in-fact for and on its or their behalf to do anything that the
Servicer has the power to do under this Agreement and the other documents
relating to a Securitized Financing. Without limiting the generality of the
foregoing, the Servicer or any such person or entity designated by the Servicer
is hereby authorized and empowered by the Titling Trustee and the Titling Trust
to execute and deliver, on behalf of the Titling Trust and the Titling Trustee,
any and all applications for or duplicates of Certificates of Title in the name
of the Titling Trust or the Titling Trustee, on
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behalf of the Titling Trust, any and all applications for registrations of
vehicles and/or license plates, any and all applications for transfers of
Certificates of Title or registrations for vehicles and/or license plates,
and any and all other instruments, certificates or other documents which the
Servicer deems necessary or advisable to record, hold or release title to
and/or registration of motor vehicles in the name of the Titling Trust or the
Titling Trustee, as appropriate.
SECTION 4.08 PROTECTION OF TITLE TO TITLING TRUST.
(a) The Servicer shall maintain its computer systems so that its master
computer records (including any back-up archives) that refer to any Leased
Vehicles indicate clearly that legal title to such Leased Vehicle is held by the
Titling Trust or the Titling Trustee, on behalf of the Titling Trust, as
appropriate, as nominee holder of legal title for the related Beneficiary.
Indication of the legal title of the Titling Trust or the Titling Trustee, on
behalf of the Titling Trust, to a Leased Vehicle shall be deleted from or
modified on such computer systems when, and only when, legal title to such
Leased Vehicle is no longer owned by the Titling Trust or the Titling Trustee,
on behalf of the Titling Trust, for the benefit of the related Beneficiary.
(b) If at any time the Servicer or a Beneficiary proposes to sell, grant a
security interest in or otherwise transfer any interest in any Leased Vehicles
to any prospective purchaser, lender or other transferee, all computer tapes,
records or print-outs (including any restored from back-up archives) delivered
by the Titling Trustee to such prospective purchaser, lender or other transferee
that refers in any manner whatsoever to any Leased Vehicle shall indicate
clearly that legal title to such Leased Vehicle is held in the name of the
Titling Trust or the Titling Trustee, on behalf of the Titling Trust, for the
benefit of the related Beneficiary.
ARTICLE 5
PAYMENTS
SECTION 5.01 PAYMENTS FROM TITLING TRUST ASSETS ONLY. All payments, if
any, to be made by the Titling Trustee or the Servicer under this Agreement or
any other documents relating to a Securitized Financing, other than (i)
indemnities of the Servicer pursuant to Section 4.02, (ii) payment of the
Titling Trustee's fees and expenses by the Servicer pursuant to Section 6.13 or
(iii) amounts owing by the Titling Trustee arising from its willful misfeasance,
bad faith or negligence, shall be made only from any then available collections
and proceeds in respect of the Titling Trust Assets or the SUBI Assets of the
related Sub-Trust, as appropriate, and only to the extent that the Titling
Trustee or the Servicer shall have received such collections and proceeds in
respect thereof to make such payments in accordance with the terms hereof. This
Section is not intended to override the waivers of limited liability by the
Beneficiaries made in Section 3.02.
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SECTION 5.02 MANNER OF PAYMENT. All amounts payable to Beneficiaries
pursuant to this Agreement or any other document relating to a Securitized
Financing shall be paid or caused to be paid by the Titling Trustee or the
Servicer, as the case may be, to or for the account of the related Beneficiary
in immediately available funds by wire transfer or other method of same-day
transfer.
ARTICLE 6
THE TITLING TRUSTEE
SECTION 6.01 DUTIES AND POWERS OF TITLING TRUSTEE.
(a) The Titling Trustee and the Trust Agent undertake to perform such
duties and engage in such activities, and only such duties and activities, as
are specified in this Agreement, any SUBI Supplement or UTI Supplement, any
other amendment to this Agreement, SUBI Supplement or UTI Supplement, or as may
be directed by the Beneficiary in a manner not contrary to the terms hereof or
thereof from time to time, including in connection with (i) Securitized
Financings, (ii) sales of Contracts and other Titling Trust Assets to the extent
permitted by the terms of any existing Securitized Financings (so long as the
Certificate of Title of any Leased Vehicle so sold is amended to reflect the
transfer of ownership thereof from the Titling Trust or the Titling Trustee, on
behalf of the Titling Trust, as applicable, unless applicable law permits the
transfer of ownership of a motor vehicle without an amendment to the vehicle's
certificate of title) or (iii) activities ancillary thereto.
(b) Neither the Titling Trustee nor the Trust Agent shall engage in any
activities other than activities required or permitted by the provisions of this
Agreement. Except as provided in or permitted by this Titling Trust Agreement,
any UTI Supplement, any SUBI Supplement or any related SUBI Servicing
Supplement, neither the Titling Trustee nor the Trust Agent shall (i) issue
beneficial interests in the Titling Trust Assets or securities of the Titling
Trust other than the UTI and UTI Certificates and one or more SUBIs and SUBI
Certificates; (ii) borrow money on behalf of the Titling Trust; (iii) make loans
on behalf of the Titling Trust; (iv) invest in or underwrite securities; (v)
offer securities in exchange for Titling Trust Assets (other than UTI
Certificates and SUBI Certificates); (vi) repurchase or otherwise reacquire any
UTI Certificate or SUBI Certificate except as permitted by or in connection with
any Securitized Financing; or (vii) grant any security interest in or lien upon
any Titling Trust Assets.
(c) At the direction of the UTI Beneficiary or the Servicer and at the
expense of the [Servicer], the Titling Trustee shall: (i) apply for and maintain
(or cause to be applied for and maintained) all licenses, permits and
authorizations necessary and appropriate for the Titling Trust or the Titling
Trustee in carrying out the terms of this Agreement (including receiving
assignments of Contracts and causing Certificates of Title to reflect the
Titling Trust, the Titling Trustee on behalf of the Titling Trust, as the owner
of the Leased Vehicles) in each jurisdiction that the UTI Beneficiary or the
Servicer reasonably deems appropriate; (ii) file (or cause to be filed) all
notices, reports and other required filings in each jurisdiction that the UTI
Beneficiary or the Servicer reasonably deems appropriate; (iii) file (or cause
to be filed) in each jurisdiction that the UTI
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Beneficiary or the Servicer reasonably deems appropriate applications for
Certificates of Title as are necessary and appropriate so as to cause the
Titling Trust or the Titling Trustee , on behalf of the Titling Trust, to be
recorded as the holder of legal title of record of the Leased Vehicles and to
execute and deliver to each Dealer a power of attorney in order to allow such
Dealers to so record the Titling Trust or the Titling Trustee, on behalf of
the Titling Trust, as the holder of legal title to such Leased Vehicles; (iv)
to the extent that the UTI Beneficiary or the Servicer deems it necessary or
useful to have a lien recorded on Certificates of Title, file (or cause to be
filed) in each jurisdiction that the UTI Beneficiary or the Servicer
reasonably deems appropriate, such applications as are necessary to record
upon each of the Certificates of Title an Administrative Lien in favor of an
Administrative Lienholder; (v) be, or cause the Titling Trust to be, the
assignee of the original Dealer/Obligee with respect to the Contracts; and
(vi) pay or cause to be paid all applicable taxes and fees properly due and
owing in connection with its activities.
(d) The Titling Trustee, or the Trust Agent on its behalf, shall establish
accounts and receive, maintain, invest and disburse funds in accordance with
Articles V and VII hereof and the SUBI Supplements.
(e) Neither any Beneficiary nor the Servicer shall direct the Titling
Trustee or the Trust Agent to take any action that (i) is inconsistent with the
purposes of the Titling Trust as set forth in Section 2.04 or (ii) would result
in the treatment of the Titling Trust or any SUBI Sub-Trust as an entity that is
taxable as an "association" for federal income tax purposes.
SECTION 6.02 DUTY OF CARE.
(a) In carrying out their duties hereunder, the Titling Trustee and the
Trust Agent each shall exercise the rights and powers vested in it only as set
forth in this agreement. No provision of this Agreement shall be construed to
relieve the Titling Trustee or the Trust Agent from liability for their own
negligent actions, negligent failure to act, bad faith or willful misfeasance or
similar act or omission; provided, however, that:
(i) neither the Titling Trustee nor the Trust Agent shall be
personally liable for any action taken, suffered or omitted by it or any
error of judgment, in each case made in good faith by any officer of, or
any other employee of the Corporate Trust Office of, the Titling Trustee or
any Trust Agent, including any the president, vice-president, assistant
vice-president, trust officer, corporate secretary or assistant corporate
secretary or any other officer of the Titling Trustee or such Trust Agent
customarily performing functions similar to those performed by such
officers or to whom any corporate trust matter is referred because of such
Person's knowledge of or familiarity with the particular subject, unless it
shall be proved that the Titling Trustee or Trust Agent was negligent or
acted with willful misfeasance in performing its duties in accordance with
the terms of this Agreement; and
(ii) neither the Titling Trustee nor the Trust Agent shall be
personally liable with respect to any action taken, suffered or omitted to
be taken in good faith in accordance with
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the express direction of the UTI Beneficiary (to the extent relating to the
Undivided Trust Interest) or the holder or pledgee of a SUBI Certificate
that is not the Titling Trustee or a trust agent of the Titling Trustee in
connection with a Securitized Financing (to the extent relating to the SUBI
evidenced thereby) relating to the exercise of any trust, power or
authority conferred upon the Titling Trustee under this Agreement.
(b) Notwithstanding subsection (a) above, the Titling Trustee shall not be
required to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties under this Agreement, or in the exercise
of any of its rights or powers, if there shall be reasonable grounds for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Titling Trustee to
perform, or be responsible for the manner of performance of, any of the
obligations of a Servicer hereunder or under any related SUBI Servicing
Supplement except during such time, if any, as the Titling Trustee shall be
successor to, and be vested with the rights, duties, powers and privileges of,
any Servicer in accordance with the terms of this Agreement or any related SUBI
Servicing Supplement.
(c) Except for actions expressly authorized by this Agreement, a SUBI
Supplement, a UTI Supplement, or an amendment thereto, the Titling Trustee shall
take no action as to which the Titling Trustee has been notified by a
Beneficiary, or has actual knowledge, that such action would impair the
beneficial interests in the Titling Trust, would impair the value of any Titling
Trust Asset or would adversely affect the then outstanding credit rating issued
by a Rating Agency with respect to any class of securities issued in a
Securitized Financing.
(d) All information obtained by the Titling Trustee regarding the
administration of the Titling Trust, whether upon the exercise of its rights
under this Agreement or otherwise, shall be maintained by the Titling Trustee in
confidence and shall not be disclosed to any other Person other than to the
Trust Agent or an appropriate Beneficiary unless such disclosure is required by
any applicable law or regulation or pursuant to subpoena, or such information is
already otherwise publicly available.
SECTION 6.03 CERTAIN MATTERS AFFECTING THE TITLING TRUSTEE.
Except as otherwise provided in this Agreement:
(a) The Titling Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, officer's certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
an authorized signatory of the relevant party. In particular, but without
limitation, whenever in this Agreement it is provided that the Titling Trustee
shall receive or may rely on the instructions or directions of a Beneficiary in
connection with a Securitized Financing, any written instruction or direction
purporting to bear the signature of any officer or authorized signatory of the
Beneficiary,
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or the holder or pledgee of a UTI Certificate or a SUBI Certificate in
connection with a Securitized Financing reasonably believed by it to be
genuine may be deemed by the Titling Trustee to have been signed or presented
by the proper party.
(b) The Titling Trustee may consult with counsel, and any written opinion
of counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it under this Agreement in good faith
and in accordance with such opinion of counsel.
(c) The Titling Trustee shall be under no obligation to exercise any of
the discretionary rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or in relation
to this Agreement, at the request, order or direction of a Beneficiary in
connection with a Securitized Financing or any Beneficiary of the Titling Trust
pursuant to the provisions of this Agreement, unless such requesting Person(s)
shall have offered to the Titling Trustee reasonable security or indemnity
against the Liabilities that may be incurred therein or thereby.
(d) The Titling Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by a Beneficiary;
provided, however, that if the payment within a reasonable time to the Titling
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Titling Trustee, not
reasonably assured to the Titling Trustee by the security afforded to it by the
terms of this Agreement or any SUBI Supplement, the Titling Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a condition
to so proceeding; the reasonable expense of every such examination shall be paid
by the Person(s) requesting such examination or, if paid by the Titling Trustee,
shall be reimbursed as a Titling Trust expense upon demand.
(e) The Titling Trustee may execute any of the trusts or powers under this
Agreement or perform any duties under this Agreement either directly or by or
through agents or attorneys or one or more custodians and shall not be liable
for the negligence or willful misconduct of such agents or attorneys appointed
with due care. By way of illustration and not in limitation of the foregoing,
the Titling Trustee may from time to time enter into one or more Trust Agency
Agreements with such Trust Agents, including any Affiliate of the Titling
Trustee, as are by experience and expertise qualified to act in a trustee
capacity and otherwise acceptable to the UTI Beneficiary. Notwithstanding the
foregoing, the Titling Trustee shall replace any Trust Agent if (i) in the good
faith judgment of the UTI Beneficiary, the compensation or level of service of
such Trust Agent shall no longer be reasonably competitive with those of any
alternative agent reasonably proposed by the UTI Beneficiary, or (ii) if the
Trust Agent has materially breached its obligations under the Trust Agency
Agreement, the UTI Beneficiary or a Beneficiary in connection with a Securitized
Financing has given written notice to the Titling Trustee and the Trust Agent of
such breach, and the Trust Agent has not cured such breach in all material
respects within 30 Business Days thereafter. Such Trust Agency Agreement shall
specify the duties, powers, liabilities,
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obligations and compensation of such Trust Agent(s) to carry out on behalf of
the Titling Trustee any or all of its obligations as Titling Trustee of the
Titling Trust arising under this Agreement or otherwise and shall contain a
non-petition covenant substantially identical to that set forth in Section
6.14, provided, however, that nothing contained in any Trust Agency Agreement
shall excuse, limit or otherwise affect any power, duty, obligation,
liability or compensation otherwise applicable to the Titling Trustee
hereunder. The Titling Trustee hereby engages First Bank National
Association as its initial Trust Agent, and First Bank National Association
by its signature hereto accepts such engagement, with all provisions of this
Section 6.03(e) relating to Trust Agents constituting a Trust Agency
Agreement between First Bank National Association and the Titling Trustee,
subject to any amendment or supplement thereto between such parties not
inconsistent herewith. First Bank National Association shall carry out as
Trust Agent each and every obligation of the Titling Trustee hereunder and
under any SUBI Supplement and is hereby delegated by the Titling Trustee all
power and authority delegable by the Titling Trustee hereunder in order
better to be able to carry out its duties as Trust Agent.
SECTION 6.04 TITLING TRUSTEE NOT LIABLE FOR CERTIFICATES OR LOSSES.
The Titling Trustee shall have no obligation to perform any of the duties
of the Grantor or the Servicer unless explicitly set forth herein or in any SUBI
Supplement or related SUBI Servicing Supplement. The Titling Trustee shall at
no time have any responsibility or liability for or with respect to the (a)
legality, validity and enforceability of any security interest in any Trust
Asset; (b) the perfection or priority of such a security interest or the
maintenance of any such perfection and priority; (c) the efficacy of the Titling
Trust or its ability to generate the payments to be distributed to any
Beneficiary or its permitted assignee(s) under this Agreement, including the
existence, condition, location and ownership of any Trust Asset; (d) the
existence and enforceability of any Insurance Policy; (e) the existence and
contents of any Contract or any computer or other record thereof; (f) the
validity of the assignment of any Trust Asset to the Titling Trustee or of any
intervening assignment; (g) the completeness of any Contract; (h) the
performance or enforcement of any Contract; (i) the compliance by the Grantor or
any Servicer with any covenant or the breach by the Grantor or any Servicer of
any warranty or representation in any document and the accuracy of any such
warranty or representation prior to the Titling Trustee's receipt of notice or
other discovery of any noncompliance therewith or any breach thereof; (j) any
investment of monies by any Servicer or any loss resulting therefrom (it being
understood that the Titling Trustee shall remain responsible for any Titling
Trust Assets that it may hold); (k) the acts or omissions of any Dealer or any
other Person, the Grantor, any Servicer or any obligor under, or in connection
with the origination of, any Contract; (1) any action of any Servicer taken in
the name of the Titling Trustee; or (m) any action by the Titling Trustee taken
at the instruction of any Servicer; provided, however, that the foregoing shall
not relieve the Titling Trustee of its obligation to perform its duties under
this Agreement. Except with respect to a claim based on the Titling Trustee's
or any Trust Agent's willful misconduct, bad faith or negligence, (i) no
recourse shall be had against the institution serving as Titling Trustee in its
individual capacity for any claim based on any provision of this Agreement, a
SUBI Supplement or UTI Supplement or any amendment thereof, a SUBI Certificate
or any Trust Asset or assignment thereof and (ii) the Titling Trustee shall not
have any personal
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obligation, liability or duty whatsoever to the UTI Beneficiary or any other
Person with respect to any such claim, and any such claim shall be asserted
solely against the Titling Trust Assets (subject to Section 3.04) or any
indemnitor who shall furnish indemnity as provided in this Agreement. The
Titling Trustee shall not be accountable for the use or application by a
Beneficiary of any SUBI Certificate or of the proceeds of such SUBI
Certificate, or for the use or application of any funds properly paid to any
Servicer hereunder or pursuant to any SUBI Servicing Supplement.
SECTION 6.05 INDEMNITY OF TITLING TRUSTEE AND TRUST AGENTS.
The Titling Trustee and any Trust Agent shall be indemnified and held
harmless out of and to the extent of the Titling Trust Assets with respect to
any Claim arising out of or incurred in connection with (a) any of the Titling
Trust Assets (including any Claim relating to any Contract, Leased Vehicle,
consumer fraud, consumer leasing act violation, misrepresentation, deceptive and
unfair trade practice, and any other claim arising in connection with any
Contract, personal injury or property damage claim arising with respect to any
Leased Vehicle or any claim with respect to any tax arising with respect to any
Titling Trust Asset) or (b) the Titling Trustee's or Trust Agent's acceptance or
performance of the trusts and duties contained in this Agreement or any Trust
Agency Agreement, with any allocation of such indemnification among the Titling
Trust Assets to be made as provided for in Section 3.04; provided, however, that
neither the Titling Trustee nor any Trust Agent shall be indemnified or held
harmless out of the Titling Trust Assets as to any Claim for which the Servicer
shall be expressly and solely liable hereunder or pursuant to any SUBI Servicing
Supplement (unless the Servicer shall not have paid such claim upon the final
determination of its liability therefor), (ii) incurred by reason of the Titling
Trustee's or such Trust Agent's willful misconduct, bad faith or negligence or
(iii) incurred by reason of the Titling Trustee's breach of its representations,
warranties or covenants herein or in any Transaction Document. The
Beneficiaries will indemnify, defend and hold harmless the Titling Trustee and
any Trust Agent for any such Claims that the Titling Trust Assets are
insufficient to satisfy, with any allocation of such indemnification among the
Beneficiaries to be made as provided for in Section 3.04. Such indemnification
shall be irrespective of any other indemnification provided to the Beneficiaries
under any other documents relating to a Securitized Financing.
SECTION 6.06 TITLING TRUSTEE'S RIGHT NOT TO ACT.
Notwithstanding anything to the contrary contained herein, the Titling
Trustee shall have the right to decline to act in any particular manner
otherwise provided for herein if the Titling Trustee, being advised in writing
by counsel, determines that such action may not lawfully be taken, or if the
Titling Trustee in good faith shall determine that such action would be illegal
or subject it to personal liability or, in the case of a direction from one or
more Beneficiaries, be prejudicial to the rights of other Beneficiaries; and
provided further, that nothing in this Agreement shall impair the right of the
Titling Trustee to take any action deemed proper by the Titling Trustee that is
not inconsistent with such otherwise required acts.
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SECTION 6.07 QUALIFICATION OF TITLING TRUSTEE.
Except as otherwise provided in this Agreement, the Titling Trustee under
this Agreement shall at all times be (a) a corporation organized under the laws
of one of the fifty states of the United States, the District of Columbia or the
Commonwealth of Puerto Rico (which corporation shall not be the Grantor or any
Affiliate thereof), (b) qualified to do business as a trustee in each of the
Trust States and (c) otherwise acceptable to each Rating Agency rating any class
of securities at the request of the Grantor issued in connection with any
Securitized Financing and to any pledgee of a UTI Pledge (such acceptance by any
such pledgee not to be unreasonably withheld, delayed or conditioned).
SECTION 6.08 RESIGNATION OR REMOVAL OF TITLING TRUSTEE.
(a) The Titling Trustee may not at any time resign without the express
written consent of the Beneficiaries.
(b) If at any time the Titling Trustee shall cease to be qualified in
accordance with Section 6.07, or if any representation or warranty made by the
Titling Trustee pursuant to Section 6.12 or the Trust Agent pursuant to Section
6.15 shall prove to have been untrue in any material respect when made and shall
not have been cured within 45 days after any Beneficiary gives the Titling
Trustee written notice of such inaccuracy, but the Titling Trustee shall fail to
resign after written request therefor by any Beneficiary or pledgee of any UTI
Certificate or SUBI Certificate in connection with a Securitized Financing, or
if at any time the Titling Trustee shall be legally unable to act, or shall be
adjudged bankrupt or insolvent, or a receiver of the Titling Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Titling Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the UTI Beneficiary shall
remove the Titling Trustee. If the Titling Trustee is removed under the
authority of the immediately preceding sentence, the UTI Beneficiary shall
promptly appoint a successor Titling Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Titling
Trustee so removed and one copy to the successor Titling Trustee, together with
payment of all fees owed to the outgoing Titling Trustee.
(c) Any resignation or removal of the Titling Trustee and appointment of a
successor Titling Trustee pursuant to any of the provisions of this section
shall not become effective until acceptance of appointment by the successor
Titling Trustee.
SECTION 6.09 SUCCESSOR TITLING TRUSTEE.
Any successor Titling Trustee appointed as provided in Section 6.08 shall
execute, acknowledge and deliver to the UTI Beneficiary, the Servicer and to its
predecessor Titling Trustee an instrument accepting such appointment under this
Agreement, and thereupon the resignation or removal of the predecessor Titling
Trustee shall become effective and such successor Titling Trustee, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers,
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duties and obligations of the Titling Trustee under this Agreement, with like
effect as if originally named as Titling Trustee. The predecessor Titling
Trustee shall deliver to the successor Titling Trustee all documents and
statements held by it under this Agreement, and the UTI Beneficiary and the
predecessor Titling Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Titling Trustee all such rights,
powers, duties and obligations. No successor Titling Trustee shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor Titling Trustee shall be eligible under the provisions of
Section 6.07. Upon acceptance of appointment by a successor Titling Trustee
as provided in this Section, the UTI Beneficiary shall mail notice of the
successor of such Titling Trustee under this Agreement to each pledgee or
other Beneficiary of a UTI Certificate or a SUBI Certificate. If the UTI
Beneficiary fails to mail such notice within ten days after acceptance of
appointment by the successor Titling Trustee, the successor Titling Trustee
shall cause such notice to be mailed at the expense of the UTI Beneficiary.
SECTION 6.10 MERGER OR CONSOLIDATION OF TITLING TRUSTEE.
The Titling Trustee shall not merge or consolidate with, or sell all or any
substantial part of its assets to any other Person, without the express written
consent of the UTI Beneficiary. Any such corporation (i) into which the Titling
Trustee may be merged or consolidated, (ii) which may result from any merger,
conversion, or consolidation to which the Titling Trustee shall be a party, or
(iii) which may succeed to the corporate business of the Titling Trustee, which
corporation executes an agreement of assumption to perform every obligation of
the Titling Trustee under this Agreement, shall be the successor of the Titling
Trustee hereunder, provided such corporation shall be eligible pursuant to
Section 6.07, without the execution or filing of any other instrument or any
further act on the part of any of the parties hereto other than the written
consent of the UTI Beneficiary. The Titling Trustee shall give reasonable
written notice to each SUBI Beneficiary and each Rating Agency of any such
merger or consolidation.
SECTION 6.11 APPOINTMENT OF CO-TITLING TRUSTEE, SEPARATE TITLING TRUSTEE,
OR NOMINEE.
(a) Notwithstanding any other provisions of this Agreement, if at any time
the Titling Trustee determines that it is in the best interests of the Titling
Trust to take any action for the purpose of meeting any legal requirements of
any jurisdiction in which any Titling Trust Asset may at the time be located or
within which such Titling Trust Asset is to be acquired or for any other purpose
as so determined by the Titling Trustee, the Beneficiary of the Sub-Trust to
which such Trust Asset is allocated and the Titling Trustee, acting jointly,
shall have the power to execute and deliver all instruments to appoint one or
more Persons approved by the Titling Trustee and such Beneficiary to act as co-
trustee, jointly with the Titling Trustee, or as a separate trustee or nominee
holder of legal title, of all or any part of such Titling Trust Assets, and to
vest in such Person, in such capacity and for the benefit of such Beneficiary
and its permitted assignee(s), such title to such Titling Trust Assets, or any
part thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as such Beneficiary and the Titling
Trustee may consider necessary or desirable. No co-trustee, separate trustee,
or nominee holder of legal title
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under this Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 6.07, except that no co-trustee,
separate trustee or nominee holder of legal title under this Agreement may be
the UTI Beneficiary or any Affiliate thereof.
(b) Each separate trustee, co-trustee and nominee holder of legal title
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Titling Trustee shall be conferred upon and exercised or performed
by the Titling Trustee and such separate trustee, co-trustee or nominee
holder of legal title jointly (it being understood that such separate
trustee, co-trustee or nominee holder of legal title is not authorized to
act separately without the Titling Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed (whether as Titling Trustee under this
Agreement or as successor to any Servicer under this Agreement or any SUBI
Servicing Supplement), the Titling Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the
Titling Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee, co-trustee or
nominee holder of legal title, but solely at the direction of the Titling
Trustee;
(ii) no trustee or nominee holder of legal title under this
Agreement shall be personally liable by reason of any act or omission of
any other trustee or nominee holder of legal title under this Agreement;
and
(iii) the Beneficiaries and the Titling Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee,
co-trustee or nominee holder of legal title.
(c) Any notice, request or other writing given to the Titling Trustee
shall be deemed to have been given to each of the then separate trustees, co-
trustees and nominee holders of legal title, as effectively as if given to each
of them. Every instrument appointing any separate trustee, co-trustee or other
nominee holder of legal title shall refer to this Agreement and the conditions
of this Section. Each separate trustee, co-trustee and nominee holder of legal
title, upon its acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment, either jointly
with the Titling Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Titling Trustee. Each such instrument shall be
filed with the Titling Trustee and a copy thereof given to the Servicer and each
Beneficiary.
Any separate trustee, co-trustee or nominee holder of legal title may at
any time appoint the Titling Trustee its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its name. If
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any separate trustee, co-trustee or nominee holder of legal title shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts relating to this Agreement and the
Titling Trust Assets shall vest in and be exercised by the Titling Trustee,
to the extent permitted by law, without the appointment of a new or successor
trustee. Notwithstanding anything to the contrary in this Agreement, the
appointment of any separate trustee, co-trustee or nominee holder of legal
title shall not relieve the Titling Trustee of its obligations and duties
under this Agreement.
SECTION 6.12 REPRESENTATIONS, WARRANTIES AND COVENANTS OF TITLING
TRUSTEE.
The Titling Trustee hereby represents, warrants and covenants for the
benefit of the Grantor, each Beneficiary and each pledgee of a UTI Certificate
or SUBI Certificate:
(a) ORGANIZATION AND GOOD STANDING. The Titling Trustee is a corporation,
duly organized, validly existing and in good standing under the law of the State
of Delaware and is, or promptly will be, qualified to do business as a foreign
corporation and is, or promptly will be, in good standing in each state that is
a Trust State as of the date of this Agreement. The Titling Trustee shall
promptly take or cause to be taken all such actions and execute and file or
cause to be executed and filed all such instruments and documents, the cost of
which shall be a Titling Trust Expense, as may reasonably be required in order
for the Titling Trustee to qualify to do business and be in good standing in
each other State identified in writing from time to time by the Grantor or the
UTI Beneficiary.
(b) POWER AND AUTHORITY. The Titling Trustee has full power, authority
and right to execute and deliver this Agreement, and has, or promptly will have,
full power and authority to perform its obligations hereunder in each state that
is a Trust State as of the date of this Agreement, and has taken all necessary
action to authorize the execution and delivery of this Agreement, and has taken,
or promptly will take, all necessary action to authorize performance by it of
this Agreement in each state that is a Trust State as of the date of this
Agreement.
(c) DUE EXECUTION. This Agreement has been duly executed and delivered by
the Titling Trustee, and is a legal, valid and binding instrument enforceable
against the Titling Trustee in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in effect,
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(d) NO CONFLICT. To the Titling Trustee's actual knowledge, neither the
execution and delivery of this Agreement nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default (with
notice or passage of time or both) under any provision of any law, governmental
rule, regulation, judgment, decree or order binding on the Titling Trustee or
the articles of incorporation
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or bylaws of the Titling Trustee or any provision of any mortgage, indenture,
contract agreement or other instrument to which the Titling Trustee is a
party or by which it is bound.
(e) SINGLE PURPOSE. The Titling Trustee has not engaged, is not currently
engaged, and will not engage during the term of this Agreement in any other
activity other than serving as Titling Trustee and in such ancillary activities
as are necessary and proper in order to act as Titling Trustee in accordance
with this Agreement, any SUBI Supplement or UTI Supplement, and any amendment
thereto or any of the other documents relating to a Securitized Financing.
SECTION 6.13 TITLING TRUSTEE'S FEES AND EXPENSES.
The Titling Trustee shall be paid out of Titling Trust Assets in the UTI
Portfolio reasonable compensation (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) and
reimbursement for all services rendered by it in the execution of the Titling
Trust and in the exercise and performance of any of the powers and duties under
this Agreement and the other documents relating to a Securitized Financing to
which it is a party, and as an expense of the Titling Trust, reimbursement of
all reasonable costs and expenses (including reasonable attorneys' fees and
expenses) of incorporation, qualification, periodic maintenance of its corporate
franchises and qualification, annual board of directors' meetings and all
necessary corporate filings, franchise taxes and fees.
SECTION 6.14 NO PETITION.
Each of the Titling Trustee and First Bank National Association, as Trust
Agent, covenants and agrees that prior to the date which is one year and one day
after the date upon which all obligations under each Securitized Financing has
been paid in full, it will not institute against, or join any other Person in
instituting against, TMCC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal or
state bankruptcy or similar law. This Section shall survive the termination of
this Agreement or the resignation or removal of the Titling Trustee under this
Agreement.
SECTION 6.15 STOCK OF TMTT, INC.
First Bank National Association hereby represents, warrants and covenants,
for the benefit of the Grantor, each Beneficiary and each pledgee of a UTI
Certificate or SUBI Certificate, as follows:
(a) OWNERSHIP OF STOCK. All of the issued and outstanding Titling Trustee
Stock is owned by First Bank National Association, free and clear of any lien,
encumbrance or any other restriction, agreement or commitment of any kind (other
than as provided for in this Agreement) that would in any way restrict First
Bank National Association's ability freely to transfer, convey and assign the
Titling Trustee Stock. All such Titling Trustee Stock currently outstanding is
(and any Titling Trustee Stock that may be issued in the future will be) validly
issued, fully paid and nonassessable
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and has not been (and will not be) issued in violation of any preemptive,
first refusal or other subscription rights of any Person. There are no
outstanding options, warrants, conversion' rights, subscription rights,
preemptive rights, exchange rights or other rights, agreements or commitments
of any kind obligating First Bank National Association to sell any Titling
Trustee Stock or to issue any additional capital stock in the Titling Trustee
to any Person. First Bank National Association will not issue any additional
Titling Trustee Stock without the express written consent of the UTI
Beneficiary.
(b) TRANSFER OF TITLING TRUSTEE STOCK. For so long as First Bank National
Association is acting as a Trust Agent pursuant to this Agreement or any Trust
Agency Agreement, but subject to any applicable legal or regulatory
requirements, it will retain ownership of all of the Titling Trustee Stock. If
at any time (and for any reason, including First Bank National Association's
resignation or termination as Trust Agent or the termination of the Titling
Trust) First Bank National Association either is no longer acting as a Trust
Agent, is no longer able, because of legal or regulatory changes, to own the
Titling Trustee Stock, or the Titling Trustee would have to be removed pursuant
to Section 6.08 because of its being owned by First Bank National Association,
First Bank National Association will (i) notify the UTI Beneficiary of such
event and (ii) sell to the UTI Beneficiary's designee (who shall not be the UTI
Beneficiary or any Affiliate thereof), at the UTI Beneficiary's option, without
recourse except with respect to the representations, warranties and covenants of
the Titling Trustee and the Trust Agent contained herein, all of the Titling
Trustee Stock for the sum of Ten Dollars ($10). The UTI Beneficiary's designee
shall have sixty (60) days from the date of receipt of such notice in which to
exercise such option and to consummate such acquisition, during which time First
Bank National Association shall refrain from offering for sale or selling any
Titling Trustee Stock to any Person other than the UTI Beneficiary's designee.
If the UTI Beneficiary's designee shall not consummate such acquisition within
such period, First Bank National Association shall be free to offer for sale or
sell to any Person any or all of the Titling Trustee Stock or to dissolve the
Titling Trustee; provided, however, that a successor Titling Trustee shall have
been appointed in accordance herewith. If the UTI Beneficiary's designee shall
timely exercise its option to acquire the Titling Trustee Stock, First Bank
National Association shall promptly tender all such Titling Trustee Stock to
such buyer at a time and place determined by the buyer, duly endorsed in blank
or with duly endorsed stock powers attached, against payment of the purchase
price. The UTI Beneficiary shall pay any transfer or similar taxes arising from
a transfer of the Titling Trustee Stock as contemplated herein. If no designee
of the UTI Beneficiary shall be willing to purchase the Titling Trustee Stock as
described above, then the Titling Trustee and each Beneficiary shall have the
right to petition a court of competent jurisdiction to appoint a successor
trustee meeting the requirements for a successor trustee set forth herein.
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ARTICLE VII
ACCOUNTS; CASH FLOWS; PERMITTED INVESTMENTS
SECTION 7.01 ACCOUNTS.
(a) Unless otherwise specified in the UTI Supplement, the Titling
Trustee will establish and maintain with respect to the Undivided Trust
Interest a Lease Funding Account satisfying the definition of an Eligible
Account. The Lease Funding Account shall be established and maintained in
the name of the Titling Trustee on behalf of the UTI Sub-Trust. None of the
Grantor, any Beneficiary or, subject to Section 7.02(c), the holder or
pledgee of any UTI Certificate or SUBI Certificate shall have any right to
draw on the Lease Funding Account without the express written consent of the
Titling Trustee; provided, however, that the Titling Trustee, with the
express written consent of the related UTI Beneficiary, shall so consent to
the extent provided for in the documentation relating to any Securitized
Financing of such UTI Certificate or SUBI Certificate. The Lease Funding
Account shall only contain funds relating to UTI Assets.
(b) For so long as the Monthly Remittance Conditions are satisfied, the
Servicer shall not be required to remit to the Lease Funding Account
collections in respect of any Titling Trust Assets allocable to the Lease
Funding Account on a daily basis but shall be entitled to retain such
collections, without segregation from its other funds, until the Business Day
preceding the date identified as a "Distribution Date" in the related UTI
Supplement, at which time the Servicer shall so remit all such collections in
immediately available funds; provided that (i) investments on which the Trust
Agent is the obligor (including repurchase agreements as to which it, in its
commercial capacity, is liable as principal), may mature on the Distribution
Date, and (ii) investments made of Principal Collections or Interest
Collections on deposit in a SUBI Collection Account may mature on such dates
as specified by the Titling Trustee at the Servicer's direction so as to
maintain the availability of sufficient cash to make the payments described
in any SUBI Supplement or related SUBI Servicing Supplement.
Notwithstanding the foregoing, commencing with the first day of the
first period identified as a "Collection Period" in the related UTI
Supplement or SUBI Supplement, as the case may be, that begins at least two
Business Days after the day on which any Monthly Remittance Conditions cease
to be satisfied and for so long as the Monthly Remittance Conditions are not
satisfied, all collections in respect of the UTI Assets or the related SUBI
Assets, as applicable, then held by the Servicer shall be immediately so
deposited and all such future collections shall be so remitted by the
Servicer to the appropriate account in accordance with this Agreement or the
related SUBI Servicing Supplement, as applicable, on a daily basis within two
Business Days after receipt thereof. Each SUBI Servicing Supplement shall
also provide (i) the terms on which any other funds received by any Servicer,
including funds transferred from any of the SUBI Collection Accounts to the
extent of (1) the net investment value (as recorded on the books of the
Titling Trust) of any Contracts and Leased Vehicles allocated to a SUBI in a
Trust Asset Transfer, (2) reimbursement of any Servicer Advances provided for
in any Securitized Financing with respect to such SUBI or (3) funding for
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such SUBI's share of any allocable Titling Trust Expenses will be deposited
by the Servicer into the Lease Funding Account (or transferred directly to
the Servicer, Grantor or UTI Beneficiary directly, as appropriate) and (ii)
whether and under what circumstances any other funds received by the Servicer
with respect to a SUBI Asset, including income with respect to any investment
made in any SUBI Account, shall be deposited by the Servicer into an
appropriate SUBI Account.
(c) Except as otherwise provided in Section 7.03, a UTI Supplement or a
SUBI Supplement, all Titling Trust Expenses shall be paid out of the Lease
Funding Account or from monies held by the Servicer and allocable thereto or
distributable in respect thereof, including: (i) any reimbursement due to the
Servicer for payments from its own operating accounts in order to fund (A)
amounts due to Dealers in payment for the assignment to the Titling Trustee
of Contracts and Leased Vehicles occurring prior to the Titling Trustee's
notice to the Servicer to cease acquiring Contracts and Leased Vehicles on
behalf of the Titling Trustee given pursuant to Section 7.02(c)(ii) and (B)
any other Advances made by the Servicer with the consent of the Titling
Trustee (to be given at the direction of the UTI Beneficiary or in accordance
with the terms of any Securitized Financing), with respect to any Contract or
Leased Vehicle, (ii) Servicer fees (and expenses, if any, not covered by the
Servicer fee under any SUBI Servicing Supplement), (iii) Titling Trustee fees
and expenses and (iv) other Titling Trust Expenses, if any; provided,
however, that, to the extent that any Liability of the Titling Trustee or any
Beneficiary is incurred in respect of Affected Trust Assets allocated to one
or more Sub-Trusts, then such Liability shall be borne in accordance with
Section 3.04, and the Titling Trustee, at the direction of the Servicer,
shall transfer periodically from the related SUBI Collection Accounts to the
Lease Funding Account each Sub-Trust's appropriate share of such aggregate
Liabilities of the Titling Trust.
Prior to the funding of the Lease Funding Account from collections on
outstanding Contracts or otherwise, the UTI Beneficiary will advance monies
to fund the origination of Contracts as described in the UTI Supplement. The
UTI Supplement or any SUBI Supplement may provide that all or any portion of
the collections on the related UTI Assets or SUBI Assets will be deposited in
the Lease Funding Account or the related SUBI Lease Funding Account for a
period of time specified therein. Prior to the creation of a SUBI, the
expenses of the Titling Trust will be advanced by the UTI Beneficiary or
funded from collections on the Contracts in the UTI Portfolio, as more fully
described in the UTI Supplement. Thereafter, during any period during which
there are no monies on deposit in the Lease Funding Account, expenses of the
Titling Trust will be advanced by the UTI Beneficiary as and to the extent
provided in the UTI Supplement and each SUBI Supplement.
(d) All or a portion of the funds deposited into the Lease Funding
Account shall be separately invested by the Titling Trustee from time to time
at the direction of the UTI Beneficiary or its designee in any of the
Permitted Investments; provided, however, that should the terms of any
Securitized Financing impose any more stringent limits on the types or tenors
of permitted investments in the Lease Funding Account than are provided for
in the definition of Permitted Investments, such limits shall apply thereto
for the period specified in the related Transaction Documents. The Servicer
is hereby made the designee of the UTI Beneficiary for such purpose. All
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income, gain or loss from investment of monies in the Lease Funding Account
shall, unless otherwise specified in the Transaction Documents with respect
to any Securitized Financing, be for the account of the UTI Beneficiary;
provided that each such investment shall be made in the name of the Titling
Trustee, its nominee or its Financial Intermediary. If at any time the
relevant Beneficiary or its designee shall not have given the Titling Trustee
a timely investment directive with respect to any account, the Titling
Trustee shall invest and reinvest any monies in such account(s) in a mutual
fund offered by the Trust Agent meeting the requirements of clause (i) of the
definition of Permitted Investments.
SECTION 7.02 RELATIONSHIP TO SECURITIZED FINANCINGS.
(a) All funds in each SUBI Collection Account (other than any DE
MINIMIS amount necessary to maintain the account), however derived, to the
extent not required to fund that SUBI's share of Trust Liabilities or to fund
any Trust Asset Transfer into that SUBI Sub-Trust as provided for in the
related SUBI Supplement, shall be reinvested or paid out in accordance with
the terms and provisions hereof or of such SUBI Supplement.
(b) A UTI Pledge shall be recognized by the Titling Trustee for
purposes of this Agreement only if the UTI Beneficiary shall have given the
Titling Trustee written notice of such UTI Pledge and the name and address of
the related pledgee. During any period in which the Titling Trustee has
neither received notice from any pledgee of a UTI Pledge nor otherwise
obtained actual knowledge to the effect that (i) there is any sum due with
respect to any Securitized Financing secured by a UTI Pledge not otherwise
timely paid by a UTI Beneficiary (after any applicable grace period), or (ii)
there is any outstanding and uncured other default by a UTI Beneficiary with
respect to any such Securitized Financing (after any applicable grace
period), the Titling Trustee, promptly upon receipt of a written demand
therefor accompanied by a determination by such UTI Beneficiary (or any
Servicer on its behalf) as to the amount of Excess Funds, shall pay out to
such UTI Beneficiary upon its request the Excess Funds so requested.
(c) During any period as to which the Titling Trustee either has
received notice from any pledgee of a UTI Pledge or otherwise has obtained
actual knowledge that either of the defaults described in Sections 7.02(b)(i)
and (ii) has occurred and is continuing, the Titling Trustee shall (i) not
create any new SUBI, (ii) direct each Servicer not to accept any further
assignments on behalf of the Titling Trustee of Contracts or Leased Vehicles
(other than as provided for in Sections 7.03 and 7.04), and (iii) distribute
to such pledgee of a UTI Pledge, on demand, all Excess Funds that would
otherwise be distributable to the UTI Beneficiary.
SECTION 7.03 SUBI LEASE FUNDING ACCOUNTS.
In the event that for any reason (a) (i) a different Servicer shall be
engaged by the Titling Trustee to manage one or more SUBI Portfolios, on the
one hand, and the UTI Portfolio, on the other hand, or (ii) circumstances
with respect to any Securitized Financing secured by a UTI Pledge are such
that (A) the Titling Trustee has given to any Servicer the notice provided
for in Section
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7.02(c)(ii) or (B) if there is any outstanding UTI Pledge, the Titling
Trustee is notified that a Trust Asset Transfer into one or more SUBI
Sub-Trusts would cause a borrowing base deficiency (as defined in the
documents related to such Securitized Financing) to occur in any Securitized
Financing secured by a UTI Pledge, and (b) at such time the Titling Trustee,
acting pursuant to any SUBI Supplement or SUBI Servicing Supplement, would
otherwise be causing its Servicer to effect Trust Asset Transfers from the
UTI Sub-Trust into one or more SUBI Sub-Trusts: (1) the Titling Trustee shall
establish and maintain in its name for each SUBI a separate SUBI Lease
Funding Account, (2) to the extent that the Titling Trustee would, but for
the conditions set forth in the foregoing clauses (a) and (b), cause the
transfer from any SUBI Collection Account to the Lease Funding Account in
connection with any Trust Asset Transfer, the Titling Trustee shall instead
cause the transfer of such funds from that SUBI Collection Account to the
SUBI Lease Funding Account established with respect to that SUBI, (3) the
Titling Trustee shall direct the Servicer then servicing the respective SUBI
Portfolio to acquire on behalf of the Titling Trust, for the account of that
SUBI Sub-Trust rather than for the UTI Sub-Trust, Contracts and Leased
Vehicles from Dealers, and (4) the Titling Trustee shall apply any such funds
in any such SUBI Lease Funding Account directly to reimburse the Servicer
then servicing that SUBI Portfolio for any payments made by it to Dealers in
respect of such Contracts and Leased Vehicles. In the event that Contracts
and Leased Vehicles are being acquired by any Servicer(s) on behalf of the
Titling Trustee (on behalf of the Titling Trust) both with respect to the UTI
Sub-Trust and any SUBI Sub-Trust simultaneously, the Titling Trustee shall
first allocate all such Contracts and Leased Vehicles to the SUBI Sub-Trusts
until funds available for such purpose in any SUBI Lease Funding Account
shall be exhausted and then shall allocate all remaining Contracts and Leased
Vehicles to the UTI Sub-Trust.
SECTION 7.04 REBALANCING AFTER THIRD PARTY CLAIM.
To the extent that a third party claim against Titling Trust Assets is
satisfied out of Titling Trust Assets in proportions other than as provided
in Section 3.04, then, notwithstanding anything to the contrary contained
herein, the Titling Trustee shall promptly identify and reallocate (or cause
the Servicer to identify and reallocate) the remaining Titling Trust Assets
among the UTI Sub-Trust and each of the SUBI Sub-Trusts so that each shall
bear the expense of the third party claim as nearly as possible as if the
burden of such claim had been allocated as provided in Section 3.04.
ARTICLE VIII
TERMINATION
SECTION 8.01 TERMINATION OF THE TITLING TRUST.
(a) This Agreement and the Titling Trust shall terminate upon the last
to occur of (i) the payment to the Beneficiaries and each permitted
purchaser, assignee and pledgee thereof of interests in the Titling Trust of
all amounts and obligations required to be paid to them, and the expiration
or termination of all Securitized Financings by their respective terms, and
(ii) the maturity or liquidation and the disposition of all Titling Trust
Assets and the disposition to the Beneficiaries or
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their permitted purchasers, assignees or pledgees of all net proceeds
thereof. Notwithstanding the foregoing, in no event shall the trust created
by this Agreement continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
of this Agreement.
(b) Upon the termination of the Titling Trust, (i) after satisfaction
of all creditors, if any, of the Titling Trust, the Titling Trustee shall
distribute the Titling Trust Assets to the Beneficiaries in accordance with
this Agreement and the outstanding UTI Supplements and SUBI Supplements; (ii)
the Beneficiaries to whom such Titling Trust Assets are distributed shall
retitle or cause to be retitled any Leased Vehicles so distributed to those
Beneficiaries and shall pay or cause to be paid all applicable titling and
registration fees and taxes; and (iii) the Titling Trustee shall file or
cause to be filed a certificate of cancellation with the Delaware Secretary
of State pursuant to Section 3810(c) of the Delaware Act.
SECTION 8.02 TERMINATION AT THE OPTION OF BENEFICIARY.
Notwithstanding the provisions of Section 8.01, the Titling Trust shall be
deemed terminated, solely with respect to the Titling Trust Assets allocated
to the related Sub-Trust, and not as to any of the Titling Trust Assets
allocated to any other Sub-Trust, upon the written direction to the Titling
Trustee by any Beneficiary with respect to such Sub-Trust to revoke and
terminate such portion of the Titling Trust. Upon such termination of the
Titling Trust with respect to such a Sub-Trust, the Titling Trustee shall
distribute to the Beneficiary for such Sub-Trust all Titling Trust Assets
allocated to such Sub-Trust and shall cause the Certificates of Title to the
Leased Vehicles allocated to such Sub-Trust to be issued in the name of, or
at the direction of, such Beneficiaries. The Beneficiary to whom such
Titling Trust Assets are distributed shall then pay or cause to be paid all
applicable titling and registration fees and taxes.
SECTION 8.03 TITLING TRUSTEE ACTIONS UPON TERMINATION. Upon
termination of this Agreement, the Titling Trust and/or one or more
Sub-Trusts pursuant to Section 8.01 or 8.02, the Titling Trustee shall take
such action as may be requested by any Beneficiary to transfer the related
Titling Trust Assets to such Beneficiary or such other Person as such
Beneficiary may designate, including the execution of the assignment forms on
the Certificates of Title and any other instruments of transfer and
assignment with respect to the Leased Vehicles.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01 AMENDMENT. Prior to the first Securitized Financing,
this Agreement may be amended by written agreement between the UTI
Beneficiary and the Titling Trustee to correct or supplement any provision in
this Agreement, to cure any ambiguity, and to add, change or eliminate any
other provision of this Agreement with respect to matters or questions
arising under this Agreement. After the first Securitized Financing, any such
amendment shall also require such additional approvals, if any, as are
required under documents relating to each Securitized Financing.
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SECTION 9.02 GOVERNING LAW. This Agreement shall in all respects be
governed by and construed in accordance with the internal laws of the State
of California, without reference to its conflicts of laws provisions, and the
obligations, rights and remedies of the parties hereunder shall be determined
in accordance with such laws.
SECTION 9.03 NOTICES. All demands, notices and communications under
this Agreement shall be in writing and shall be delivered or mailed by
registered or certified first class United States mail, postage prepaid,
return receipt requested; hand delivery; prepaid courier service; or
telecopier, and addressed in each case as follows: (a) if to the Grantor or
UTI Beneficiary, at Toyota Motor Credit Corporation, 00000 X. Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Corporate Treasury Manager (Telecopier
No. (000) 000-0000), (b) if to the Titling Trustee, at TMTT, Inc., care of
First Bank National Association, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Office (at Telecopier No. (312)
228-9401), and (c) if to the Trust Agent, First Bank National Association,
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Office (at Telecopier No. (000) 000-0000) or at such other
address as shall be designated by the Grantor or Beneficiary, the Titling
Trustee or the Trust Agent in written notice to the other parties hereto.
Delivery shall occur only upon actual receipt or rejected tender of such
communication by an officer of the recipient entitled to received such
notices located at the address of such recipient for notices hereunder. A
copy of all notices to the Titling Trustee shall be delivered to First Bank
National Association for so long as it is a Trust Agent.
SECTION 9.04 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, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of any
Certificates or the rights of the holders thereof.
SECTION 9.05 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 9.06 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 permitted successors and assigns and the
Beneficiaries and their respective permitted successors and assigns. Any
request, notice, direction, consent, waiver or other instrument or action by
a Beneficiary shall bind the successors and assigns of such Beneficiary.
SECTION 9.07 TABLE OF CONTENTS AND HEADINGS. The Table of Contents and
Article and Section headings are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof.
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IN WITNESS WHEREOF, TMCC, the Titling Trustee and, solely for the
limited purposes set forth herein, First Bank National Association, as Trust
Agent, have caused this Agreement to be duly executed by their respective
officers as of the day and year first above written.
TOYOTA MOTOR CREDIT CORPORATION, as Grantor,
Initial Beneficiary and Servicer
By:
-----------------------------------------
Name:
Title:
TMTT, Inc., as Titling Trustee
By:
-----------------------------------------
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION,
as Trust Agent
By:
-----------------------------------------
Name:
Title:
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EXHIBIT A
CERTIFICATE OF TRUST OF
TOYOTA LEASE TRUST
THIS Certificate of Trust of Toyota Lease Trust (the "Titling Trust"),
dated as of September 24, 1996, is being duly executed and filed by First
Bank National Association, a national banking association, as Trust Agent,
and TMTT, Inc., a Delaware corporation, as trustee, to form a business trust
under the Delaware Business Trust Act (12 Del. Code Sections 3801 et seq.).
1. NAME. The name of the business trust formed hereby is Toyota
Lease Trust.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Titling Trust in the State of Delaware is TMTT, Inc., 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx.
3. SERIES TRUST. The Titling Trust shall be a series trust and the
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular series shall be enforceable
against the assets of such series only, and not against the assets of the
Titling Trust generally.
4. EFFECTIVE DATE. This Certificate of Trust shall be effective
upon filing.
A-1
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Titling Trust, have executed this Certificate of Trust as of the date
first-above written.
FIRST BANK NATIONAL ASSOCIATION,
As Trust Agent
By:
-----------------------------------------
Name:
Title:
TMTT, INC., as Titling Trustee
By:
-----------------------------------------
Name:
Title:
A-2
EXHIBIT B
FORM OF UTI SUPPLEMENT
B-1
EXHIBIT C
FORM OF SUBI SUPPLEMENT
C-1
ANNEX OF DEFINITIONS
Unless otherwise specified in the agreement to which this Annex of
Definitions is attached, the following terms have the indicated meanings.
Terms defined herein but not directly or indirectly used or referenced in the
agreement to which this Annex of Definitions is attached shall not be deemed
to have any meaning or significance with respect to such agreement.
"ADDITIONAL LOSS CONTRACT" means, with respect to any SUBI Portfolio, a
Contract included in such SUBI Portfolio that has been sold or otherwise
disposed of to pay an Additional Loss Amount with respect to the related SUBI.
"ADMINISTRATIVE EXPENSE" means any reasonable administrative cost or
expense associated with any relevant Securitization Trust and the Titling
Trust, as the context indicates, including reasonable fees and expenses of
attorneys and accountants.
"ADMINISTRATIVE LIEN" means any first lien specified upon any Certificate
of Title as deemed necessary and useful by the Servicer or the UTI
Beneficiary to provide for delivery of title documentation to the Titling
Trustee or its designee.
"ADMINISTRATIVE LIENHOLDER" means the Person or Persons identified as
such from time to time to the Titling Trustee by the Servicer and in whose
name one or more Administrative Liens are specified on Certificates of Title.
"ADVANCE" if a Transaction Document specifies that Advances are to be
made, unless otherwise provided in such Transaction Document, means an
advance to be made by the Servicer on the date specified in such Transaction
Document in respect of the related SUBI Collection Period and with respect to
each outstanding Contract that is included in the related SUBI Portfolio as
to which the scheduled Monthly Payment is delinquent or as to which payments
have been deferred by the Servicer which deferrals have resulted in any
diminution of the amount of Collections received in connection therewith
relative to the originally scheduled Monthly Payments, each such advance to
be in an amount equal to the aggregate amount of the Monthly Payments due
thereon during such SUBI Collection Period but not received during such SUBI
Collection Period.
"AFFECTED TRUST ASSETS" means a discrete Titling Trust Asset or group of
Titling Trust Assets impacted by any Liability (including contract, tort or
tax claims relating to one or more specific Contracts or Leased Vehicles) as
described in Section 3.04 of the Titling Trust Agreement.
"AFFILIATE" means, as to any Person, any other Person that (i) directly
or indirectly controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any employee benefit plan) or (ii) is an officer or director
of such Person. A Person shall be deemed to be "controlled by" any other
Person if such
other Person possesses, directly or indirectly, power (x) to vote 5% or more
of the securities (on a fully diluted basis) having ordinary voting power for
the election of directors or managing partners; or (y) to direct or cause the
direction of the management and policies of such Person whether by contract
or otherwise.
"AUTHORIZED NEWSPAPER" means a newspaper of general circulation in the
Borough of Manhattan, The City of New York, printed in the English language
and customarily published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
"BENEFICIARY" means the UTI Beneficiary or any holder of a UTI
Certificate or SUBI Certificate, including any trust formed with respect to a
Securitized Financing but excluding the Titling Trustee, any Trust Agent, or
any trustee or trust agent with respect to a Securitized Financing or UTI
Pledge.
"BOOKED RESIDUAL VALUE" means the stipulated fair market value of a
Leased Vehicle as of the Maturity Date of the related Contract, each as set
forth on the face of such Contract at the time of origination or, with
respect to a Contract for which the Maturity Date of such Contract has been
extended by the Servicer, the stipulated fair market value of the related
Leased Vehicle as of such extended Maturity Date.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other day
on which banking institutions in Xxx Xxxx, Xxx Xxxx, Xxxxxxx, Xxxxxxxx or Los
Angeles, California are authorized or obligated by law, executive order or
governmental decree to be closed.
"CERTIFICATE OF TITLE" means a certificate of title or other evidence of
ownership of a Leased Vehicle issued by the Registrar of Titles in the
respective jurisdiction in which such Leased Vehicle is registered, which
Certificate of Title shall reflect as the owner of such Leased Vehicle
"Toyota Lease Trust", "TMTT, Inc., as Trustee of Toyota Lease Trust" or such
other similar designation as may be acceptable to any relevant Registrar of
Titles.
"CERTIFICATE OF TRUST" means the Certificate of Trust for the Titling
Trust required to be filed with the office of the Secretary of State of the
State of Delaware pursuant to Section 3810 of the Delaware Act, substantially
in the form set forth in the Titling Trust Agreement.
"CHARGED-OFF CONTRACT" means a Contract with respect to which (a) the
related Leased Vehicle has been repossessed and sold or otherwise disposed
of, or (b) the Contract has been written off by the Servicer in accordance
with the Credit and Collection Policy's provisions for writing off lease
contracts other than with respect to repossessions.
"CLAIMS" means any losses, liabilities and expenses (including reasonable
attorney's and other professional fees and expenses) incurred in connection
with reasonable collection efforts or the defense of any suit or action.
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"CLASS" means all Certificates whose form is identical except for
variation in denomination, principal amount or owner.
"CLEARING AGENCY" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"CLOSING DATE" means, with respect to any Securitized Financing, the date
specified as such in the related Transaction Documents.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLECTION PERIOD" means, with respect to any Distribution Date, the
calendar month preceding such Distribution Date.
"COLLECTIONS" means with respect to any Collection Period, all net
collections received in respect of the Contracts and Leased Vehicles during
such Collection Period, including Monthly Payments (including Payments Ahead
that represent Monthly Payments due during such Collection Period),
Prepayments, Advances, Net Matured Leased Vehicle Proceeds, Net Repossessed
Vehicle Proceeds and other Net Liquidation Proceeds, less (i) amounts
representing Payments Ahead with respect to future Collection Periods, (ii)
amounts retained by or paid to the Servicer in respect of outstanding
Advances and (iii) Additional Loss Amounts in respect of such Collection
Period.
"COMMISSION" means the Securities and Exchange Commission, and any
successor thereto.
"CONTINGENT AND EXCESS LIABILITY INSURANCE POLICIES" means, collectively,
the contingent liability insurance policies maintained or to be maintained by
TMCC with third party insurers providing coverage for bodily injury and
property damage suffered by third persons caused by the operation of any
vehicle that is a Leased Vehicle, and each of the excess liability insurance
policies maintained or to be maintained by TMCC with third party insurers
providing excess insurance coverage as to such liabilities.
"CONTRACT" means any of the fixed rate retail closed-end lease contracts
(and all proceeds thereof) originated in connection with the lease of the
Leased Vehicles that are or were originated by Dealers pursuant to and in
conformity with Dealer Agreements between such Dealers and TMCC, the rights
to which have been assigned to the Titling Trust, or the Titling Trustee on
behalf of the Titling Trust, in accordance with such Dealer Agreements.
"CONTRACT DOCUMENTS" means, with respect to each Contract, (i) the fully
executed Contract, (ii) the related Certificate of Title (or the application
therefor if the Certificate of Title has not been
-3-
received), (iii) any written agreements modifying such Contract (including
any written extension thereof), (iv) all related credit applications, factory
invoices, Dealer worksheets, written records of certification of information
provided in the credit application and odometer statements required by
applicable law, (v) documents related to the provision of insurance and (vi)
all other documents relating to such Contract and retained by the Servicer.
"CONTRACT RECORD" means all data maintained by the Servicer (including,
without limitation, computerized records), together with all operating
software and appropriate documentation, relating directly to or maintained in
connection with the servicing of the Contracts.
"CORPORATE TRUST OFFICE" means, as of the date hereof, the office of the
Titling Trustee or of the Securitization Trustee, as indicated by the
context. Initially, the Corporate Trust Office of each of the Titling Trustee
and the Securitization Trustee is located at 000 Xxxx Xxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Office. After the
date of the attached agreement, Corporate Trust Office will mean the
corporate trust office designated in writing to the Servicer and to the
Beneficiaries by the Titling Trustee, Securitization Trustee or any successor
thereto, as the case may be.
"CREDIT AND COLLECTION POLICY" means those credit and collection policies
and practices of the Servicer, as applied by the Servicer, with respect to
the origination and servicing of Contracts and related Leased Vehicles as
they may be amended, supplemented, or modified by the Servicer from time to
time with the consent of the UTI Beneficiary.
"CURRENT CONTRACT" means a Contract that is not a Charged-off Contract,
a Matured Contract, a Liquidated Contract or an Additional Loss Contract.
"DEALER" means a motor vehicle dealer, located in a State permitted by
the Origination Criteria, that has entered into a Dealer Agreement.
"DEALER AGREEMENT" means that certain Retail Motor Vehicle Lease
Agreement substantially in the form to be attached as an exhibit to the UTI
Supplement or in such other form as may be approved from time to time entered
into between the Titling Trust and a Dealer setting forth the respective
rights and obligations of the Titling Trust and the Dealer, acting as an
independent contractor, with respect to the Dealer's entering into Contracts.
"DELAWARE ACT" means the Delaware Business Trust Act 12 Del. Code,
Sections 3801 ET SEQ.
"DELAWARE PARTNERSHIP ACTS" means the Delaware Revised Uniform Limited
Partnership Act and the Delaware Uniform Partnership Act, in each case as
amended.
"DETERMINATION DATE" means, with respect to any Distribution Date, the
second Business Day prior to such Distribution Date.
-4-
"DISCOUNTED CONTRACT" means a Contract with Lease Rate lower than the
rate specified in the related SUBI Supplement.
"DISCOUNTED PRINCIPAL BALANCE" means (i) with respect to any Discounted
Contract, an amount equal to the present value of the sum of all remaining
Monthly Lease Payments on such Contract paid on a timely basis, plus the
Booked Residual Value of the related Leased Vehicle, calculated by
discounting such Monthly Lease Payments by the Discount Rate, and (ii) with
respect to any other Contract, its Outstanding Principal Balance at such time.
"DISCOUNT RATE" means the per annum rate specified in the applicable
SUBI Supplement.
"DISTRIBUTION DATE" means, with respect to the UTI and a Collection
Period, the twenty-fifth day of the following month, or if that day is not a
Business Day, the next Business Day, beginning with October 25, 1997.
"DTC" means The Depository Trust Company and its successors.
"ELIGIBLE ACCOUNT" means (i) an account maintained with a federal or
state chartered depository or trust institution, the short-term unsecured
debt obligations of which have the Required Rating, (ii) a segregated trust
account maintained with a depository or trust institution in its corporate
trust department or (iii) an account otherwise acceptable to each Rating
Agency without reduction or withdrawal of its rating of any related Rated
Certificates, as evidenced by a letter from each Rating Agency.
"ELIGIBLE CONTRACT" means a Contract as to which the following criteria
Contract is originated and assigned by the relevant Dealer to the Titling
Trust and, with respect to any Contract included or to be included in a
specific SUBI Portfolio, any additional criteria specified in the related
SUBI Supplement, are satisfied as of the date such Contract becomes an asset
of such SUBI Portfolio:
(a) that was originated (i) by a Dealer, (ii) in the ordinary course
of its retail business, (iii) pursuant to a Dealer Agreement (if
originated by a Dealer), and (iv) in compliance with the customary
underwriting standards employed by the Grantor in originating leases for
its own account;
(b) which Contract and the related Leased Vehicle are free of all
liens and other interests (including tax liens, mechanics liens and liens
that arise by operation of law, but excluding any Administrative Lien);
(c) that was originated in compliance with, and complies with, all
material applicable legal requirements, including, to the extent
applicable, the Federal Consumer Credit Protection Act (including the
Consumer Leasing Act), as amended, Regulation M of the Board of Governors
of the Federal Reserve System, as amended, all State leasing and
-5-
consumer protection laws and all State and federal usury, fair credit
billing, fair credit reporting, equal credit opportunity, and fair debt
collection practices laws;
(d) as to which all material consents, licenses, approvals or
authorizations of, or registrations or declarations with, any
Governmental Authority required to be obtained effected or given by the
originator of such Contract in connection with (i) the origination of
such Contract, (ii) the execution, delivery and performance by such
originator of such Contract and (iii) the acquisition by the Titling
Trust of such Contract and the related Leased Vehicle have been duly
obtained, effected or given and were in full force and effect as of such
date of creation or acquisition;
(e) that is the legal, valid and binding full-recourse payment
obligation of the Obligor thereunder, enforceable against such Obligor in
accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws, now or hereafter in effect, affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity);
(f) that, according to the records of the Grantor, is not subject to
any right of rescission, setoff, counterclaim or any other defense
(including defenses arising out of violations of usury laws) of the
Obligor thereunder to payment of the amounts due thereunder, and no such
right of rescission, setoff, counterclaim or other defense has been
asserted or threatened;
(g) as to which each of the originating Dealer, the Servicer and the
Titling Trust has satisfied all obligations required to be fulfilled on
its part;
(h) that is payable solely in United States dollars in the United
States;
(i) the Obligor of which is a Person located in one or more of the
States and is not the Grantor, the Transferor or any of their respective
Affiliates;
(j) that requires the Obligor thereunder to maintain in full force
and effect during the term of such Contract a public liability and a
comprehensive and collision physical damage Insurance Policy, with
coverage in amounts not less than that required by applicable State law,
and that, as a term of such Contract, requires such Insurance Policy to
name the Titling Trust, the Titling Trustee or an agent of the Titling
Trust on behalf of the Titling Trust as a "loss payee" and an "additional
insured";
(k) the related Leased Vehicle of which is titled in the name of the
Titling Trust or the Titling Trustee on behalf of the Titling Trust (or
properly completed applications for such title have been submitted to the
appropriate titling authority) in a Trust State and all transfer and
similar taxes imposed in connection therewith have been paid;
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(l) that is a closed-end lease contract having an original scheduled
maturity of 60 months, will have been written for a "capitalized cost"
(which may exceed the manufacturer's suggested retail price), plus a
lease charge which is based on the imputed Lease Rate and will provide
for equal monthly payments required to be made by the Obligor thereunder
within 30 days after the billing date for such payment that, when
allocated between principal and the lease charge at the Lease Rate on a
constant yield basis, will be sufficient to amortize the capitalized cost
over the term of the lease to an amount equal to the Booked Residual
Value; provided that such Contract will allow the related lessee
voluntarily to terminate such Contract by paying certain miscellaneous
charges and a "payoff amount" equal to the sum of (i) unpaid Monthly
Payments and any incidental charges owing under the Contract, less
unearned lease charges and (ii) the Booked Residual Value, less (iii) the
actual wholesale price or the wholesale price otherwise determined by
TMCC in a commercially reasonable manner or by third party appraisal (if
elected by the Obligor) realized upon the sale or other disposition of
the related Leased Vehicle (including the amount of related Security
Deposit, if any, actually applied to reduce any deficiency);
(m) that is fully assignable and that does not require the consent
of the Obligor thereunder as a condition to any transfer, sale or
assignment of the rights of the originator under such Contracts;
(n) that is a "true lease", as opposed to a lease intended as
security, under the laws of the State in which it was originated as such
laws relate to the perfection of security interests therein;
(o) that meets the Origination Criteria and, in the case of any
Contract included in a SUBI Portfolio, meets any Additional Origination
Criteria specified in the related SUBI Supplement;
(p) that was fully and properly executed by the parties thereto and,
upon conveyance to the Titling Trust pursuant to the Titling Trust
Agreement, shall have been validly assigned by the originating Dealer to
the Titling Trust in accordance with the terms of the Dealer Agreement
under which it was originated and immediately thereafter shall be owned
by the Titling Trust;
(q) that is substantially identical to one of the forms of Contract
attached to the UTI Supplement (or such other form as may be approved
from time to time by TMCC in the ordinary course of business);
(r) as to which the information set forth in the Schedule of
Contracts and Leased Vehicles with respect to such Contract and related
Leased Vehicle as of such Cutoff Date is true and correct in all material
respects;
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(s) the Obligor under which Contract, according to the records of
the Servicer, has not filed or had filed against it any petition for
relief, rearrangement of its debts or other protection from its creditors
under any State or federal bankruptcy or insolvency laws, except as
otherwise permitted by the Origination Criteria;
(t) in respect of which the Grantor has taken no action such that
such Contract has been satisfied, subordinated, amended, waived,
restricted, rescinded, held to be invalid or unenforceable, altered or
modified in any respect, except (i) to the extent that such action (A)
does not render such Contract not in conformity with any other criteria
for an Eligible Contract, and (B) was made in accordance with the
Grantor's obligations under the Agreement, and (ii) if such action was
made pursuant to a document, instrument or writing, such document,
instrument or writing is included in the related Contract Documents;
(u) as to which the Grantor, in accordance with its standard
underwriting procedures, has independently reviewed and verified the
accuracy of the material information contained in each of the related
Contract application;
(v) as to which, according to the records of the Grantor, no
default, breach, violation or event permitting acceleration under the
terms of the Contract exists, and no continuing condition that, with
notice or lapse of time, or both, would constitute a default, breach,
violation or event permitting acceleration under the terms of the
Contract has arisen, the Grantor has not waived any of the foregoing, and
the related Leased Vehicle has not been repossessed without
reinstatement;
(w) that has not been originated in, and is not subject to the laws
of, any jurisdiction under which the sale, transfer, and assignment of
such Contract under its terms or pursuant to which transfers of the
Contracts or of the related Certificates of Title are unlawful, void or
voidable;
(x) as to which there is only one executed original, which will be
conveyed by the Dealer to the Titling Trustee or to the Grantor or
Servicer as the agent of the Titling Trustee, in each case on behalf of
the Titling Trust;
(y) that constitutes "chattel paper" as defined in the UCC;
(z) that was originated without any fraud or misrepresentation on
the part of the Grantor;
(aa) as to which all taxes of any nature or description whatsoever
relating thereto that are due and owing as of the date of origination
have been paid or provided for in full except for (i) any state transfer
taxes payable in connection with the transfer of any Contracts to the
Titling Trustee and (ii) similar transfer taxes to which the Titling
Trustee has consented to in writing; and
-8-
(bb) as to which the related Leased Vehicle was a new vehicle (which
may be a dealer demonstrator vehicle driven fewer than 20,000 miles) or
used vehicle (four model years old or less at the time of origination of
the related Contract, and which may be a certified used vehicle or
manufacturers' program vehicle), whether an automobile, light duty truck,
minivan or sports utility vehicle. As used in this clause (bb),
certified used vehicle means a vehicle purchased by a dealer,
reconditioned and certified to meet certain Toyota or Lexus required
standards and sold or leased with an extended warranty, and
manufacturers' program vehicle means a vehicle that has been sold to a
rental car company, repurchased by the manufacturer and subsequently
purchased by a dealer to sell or lease as a current model year or one
year old used vehicles with 20,000 miles or less.
"ELIGIBLE SERVICER" means TMCC or an entity that is servicing a portfolio
of automobile and/or light truck retail installment lease contracts, that is
legally qualified and has the capacity to service the Contracts and that has
demonstrated the ability to service a portfolio of similar lease contracts
professionally and competently in accordance with high standards of skill and
care.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute of similar import,
together with the regulations thereunder, in each case as in effect from time
to time. References to sections of ERISA shall be construed to refer also to
any successor sections.
"ERISA AFFILIATE" means each person (as defined in Section 3(9) of ERISA)
which, together with the identified person, would be deemed to be a member of
the same "controlled group" within the meaning of Section 414(b), (c), (m)
and (o) of the Code or Section 4001 of ERISA.
"EXCESS FUNDS" means, as of any date, the amount of funds in the Lease
Funding Account or otherwise held by the Servicer or the Titling Trustee in
respect of the UTI in excess of those (i) required to maintain the account to
meet all existing Liabilities of the Titling Trust to be paid out of such
account (after accounting for all transfers to be made from any SUBI Account
on or before such date) and (ii) required to be retained in such account as
reserves for reasonably anticipated Liabilities of the Titling Trust (after
taking into account all transfers to be made to such Lease Funding Account
out of any SUBI Account in respect of that SUBI's proportionate share of such
anticipated Liabilities).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXTENSION FEE" means, with respect to any Contract that has had its
Maturity Date extended as contemplated in the Titling Trust Agreement or any
SUBI Servicing Supplement, any payment required to be made by the Obligor in
connection with such extension.
"FDIC" means the Federal Deposit Insurance Corporation and its successors.
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"FINANCIAL INTERMEDIARY" means a financial intermediary, as such term is
defined in Section 8-313(4) of the UCC.
"FIRST BANK" means First Bank National Association, a national banking
association.
"FNMA" means the Federal National Mortgage Association and its successors.
"FUNDING ADVANCE" means the amount of each advance of the face amount or
any portion of a Contract (including with respect to any taxes, fees or
charges payable to the related Dealer or any third party at the time of the
funding thereof) made by the UTI Beneficiary or any agent thereof in
connection with the funding of such Contract that has not previously been
reimbursed thereto.
"FUNDING ADVANCE REIMBURSEMENT AMOUNT" means, with respect to any
Distribution Date, the aggregate amount of Funding Advances made during the
related Collection period and not previously reimbursed to the UTI
Beneficiary from Collections on the related Contracts or otherwise.
"FUNDING ADVANCE REIMBURSEMENT DATE" means a Distribution Date on which a
Funding Advance Reimbursement Amount is to be made.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
government.
"GRANTOR" means TMCC in its capacity as Grantor.
"INDEPENDENT" with respect to any specified Person means another Person
who (a) is in fact independent of TMCC and any of its Affiliates; (b) does
not have any direct financial interest or any material indirect financial
interest in TMCC or any of its Affiliates; and (c) is not connected with TMCC
or any of its Affiliates as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions. Whenever
it is provided in the attached agreement that any Independent Person's
opinion or certificate shall be furnished, such Independent Person shall be
deemed to be Independent to the satisfaction of the recipient thereof if
such opinion or certificate shall state that the signer has read this
definition and that the signer is in fact Independent within the meaning
hereof.
"INDEPENDENT ACCOUNTANT" means an Accountant, who may also be the
Accountant who audits the books of TMCC or any of its Affiliates, who is
Independent with respect to TMCC and its Affiliates as contemplated by Rule
101 of the Code of Professional Conduct of the American Institute of
Certified Public Accountants.
"INDEPENDENT DIRECTOR" means a director of the Transferor who shall at no
time be (i) a director, officer, employee or former employee of the Transferor
or any Affiliate thereof, (ii) a natural person related to any director,
officer, employee or former employee of any the Transferor
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or any Affiliate thereof, (iii) a holder (directly or indirectly) of any
voting securities of the Transferor or any Affiliate thereof, or (iv) a
natural person related to a holder (directly or indirectly) of any voting
securities of the Transferor or any Affiliate thereof.
"INSOLVENCY EVENT" means, with respect to any Person:
(i) Such Person shall file a petition commencing a voluntary case
under any chapter of the Federal bankruptcy laws; or such Person shall
file a petition or answer or consent seeking reorganization, arrangement,
adjustment, or composition under any other similar applicable Federal
law, or shall consent to the filing of any such petition, answer, or
consent; or such Person shall appoint, or consent to the appointment of a
custodian, receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of it or of any substantial
part of its property, or shall make any assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts
generally as they become due; or
(ii) any order for relief against such Person shall have been entered
by a court having jurisdiction in the premises under any chapter of the
Federal bankruptcy laws; or a decree or order by a court having
jurisdiction in the premises shall have been entered approving as
properly filed a petition seeking reorganization, arrangement,
adjustment, or composition of such Person under any other similar
applicable Federal Law; or a decree or order of a court having
jurisdiction in the premises for the appointment of a custodian,
receiver, liquidator, trustee, assignee, sequestrator or other similar
official in bankruptcy or insolvency of such Person or of any substantial
part of its property, or for the winding up or liquidation of its
affairs, shall have been entered.
"INSURANCE COSTS" means, with respect to any Insurance Policy, the
premiums therefor, any deductibles and any coinsurance payments.
"INSURANCE POLICIES" means any residual value insurance policy and any
policy of comprehensive, collision, public liability, physical damage,
personal liability, credit accident or health, credit life or unemployment
insurance maintained by the Grantor, any Obligor under any Contract or any
Affiliate of any such Person to the extent that any such policy covers or
applies to any Contract, Leased Vehicle or the ability of any lessee under
any Contract to make required payments with respect to a Contract or the
related Leased Vehicle; provided that, with respect to any SUBI, "Insurance
Policies" means only such of the foregoing policies as relate to the related
SUBI Portfolio and, in the case of such insurance policies that relate to
Contracts or related assets in more than one SUBI Portfolio, such policies
only insofar as they, or the proceeds thereof, relate to Contracts or related
assets included in the related SUBI Portfolio.
"INTEREST COLLECTIONS" means with respect to any Collection Period, an
amount equal to the amount by which Collections exceed Principal Collections
with respect to such Collection Period.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended.
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"LEASE FUNDING ACCOUNT" means the Lease Funding Account established and
maintained in accordance with Section 7.01(a) of the Titling Trust Agreement.
"LEASED VEHICLE" means the new or used (including any dealer demonstrator
vehicle or manufacturers' program vehicle) automobile, minivan, sports
utility vehicle or light duty truck, together with all accessories, additions
and parts constituting a part thereof and all accessions thereto, which is
the subject of a Contract.
"LIABILITIES" means all losses, liabilities, claims, damages, expenses
(including related reasonable legal and other professional fees and
expenses), taxes, actions and suits of any kind.
"LIEN" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind other than tax liens, mechanics' liens and any liens
that attach to property, as the context may require, by operation of law.
"LIQUIDATED CONTRACT" means a Contract that has been the subject of a
Prepayment in full or otherwise has been paid in full or, in the case of a
Charged-off Contract, a Contract as to which the Servicer has determined that
the final amounts in respect thereof have been paid.
"LIQUIDATION EXPENSES" means reasonable out-of-pocket expenses (including
related attorneys' fees and expenses) incurred by the Servicer in connection
with the attempted realization of the full amounts due or to become due under
any Contract, including expenses incurred in connection with the repossession
of the related Leased Vehicle, the sale of such Leased Vehicle, whether upon
its repossession or return (if such Contract is a Matured Contract), any
collection effort (whether or not resulting in a lawsuit against the Obligor
under such Contract) or any claim under an Insurance Policy.
"LIQUIDATION PROCEEDS" means gross amounts received by the Servicer or
the Titling Trustee, on behalf of the Titling Trust (before reimbursement for
Liquidation Expenses), in connection with the realization of the full amounts
due or to become due under any Contract, whether from the sale or other
disposition of the related Leased Vehicle (without regard to whether such
proceeds exceed the Booked Residual Value), the proceeds of any collection
effort (whether or not resulting in a lawsuit against the Obligor under such
Contract), the proceeds of recourse payments by Dealers, receipt of Insurance
Proceeds, or collection of amounts due hereunder in respect of such Contract
(including the application of Security Deposits) or otherwise.
"MATURED CONTRACT" means any Contract that has reached its Maturity Date.
"MATURED VEHICLE", as of any date, means any Leased Vehicle, the related
Contract of which has reached its Maturity Date, and which Leased Vehicle has
been returned to the Servicer on behalf of the Titling Trust (or the Titling
Trustee on behalf of the Titling Trust), regardless of the status of the sale
or disposition of such Leased Vehicle as of the date of such return.
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"MATURITY DATE" means, with respect to any Contract, the date on which
the last scheduled Monthly Payment shall be due and payable, as such date may
be extended in accordance with the provisions of the UTI Supplement and any
applicable SUBI Servicing Supplement.
"MONTHLY PAYMENT" means, with respect to any Contract, the amount of each
fixed monthly payment payable to the Obligee of such Contract in accordance
with the terms thereof, net of any portion of such monthly payment that
represents collections allocable to payments to be made by the Obligor for
sales taxes or similar items, and excluding any portion thereof relating to
the payment of insurance premiums, late payment charges, extension fees or
other similar items.
"MONTHLY REMITTANCE CONDITIONS" means that (i) TMCC is the Servicer, (ii)
either (a) TMCC's short-term unsecured debt is rated at least P-1 by Moody's
and A-1 by Standard & Poor's (so long as Moody's and Standard & Poor's are
Rating Agencies), or (b) certain arrangements are made that have been
approved in writing by each Rating Agency that has rated any class of
securities issued in connection with a Securitized Financing and (iii) no
Early Amortization Event or Event of Servicing Termination as defined in any
SUBI Supplement shall have occurred and be continuing.
"MOODY'S" means Xxxxx'x Investors Service, Inc., and its successors.
"OBLIGEE" means each Person who is the lessor under a Contract or the
assignee thereof, including the Titling Trust or the Titling Trustee on behalf
of the Titling Trust.
"OBLIGOR" means the Person who is the lessee under a Contract.
"OFFICER'S CERTIFICATE" means, with respect to any Person, a certificate
signed by the President, any Vice President, the Treasurer or any Assistant
Treasurer, the Secretary or any Assistant Secretary thereof.
"OPINION OF COUNSEL" means, with respect to any Person, a written opinion
of counsel which counsel shall be reasonably acceptable to the indicated
recipient; provided that, in the case of opinions to be delivered by TMCC or
TLI, such counsel may be an employee of or outside counsel to the Transferor
or the Servicer.
"ORIGINATION CRITERIA" means, with respect to any Contract, the TMCC's
written underwriting criteria in effect as of the date of origination of any
specific Contract, and as the same may be amended, supplemented or modified
from time to time by TMCC in the ordinary course of business.
"OTHER PROCEEDS" means monies arising from the sale, exchange, lease,
collection or other disposition of lease contracts and related leased
vehicles or other receivables (other than the Contracts and Leased Vehicles)
as to which the Servicer is acting as servicer.
"OUTSTANDING PRINCIPAL BALANCE" means, with respect to any Contract as of
any date, the amount to which the capitalized cost of a Contract has been
amortized at any point in time, which will be
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an amount equal to (i) the sum of all Monthly Payments remaining to be made,
including overdue Monthly Payments (provided, however, that Payments Ahead
received but not yet applied are deemed to be Monthly Payments remaining to
be made), less any unearned finance or other similar unearned lease charges
relating to the period beginning after the next succeeding Payment Date on
such Contract (determined on a constant yield basis) in accordance with the
Servicer's usual practices, plus (ii) the Booked Residual Value of the
related Leased Vehicle. The term "principal amount" and "principal balance"
as used herein in relation to any Contract or Contracts shall refer, as of
such date of determination, to the Outstanding Principal Balance of such
Contract or Contracts computed as of such time.
"PAYMENT AHEAD" means any payment of one or more Monthly Payments (not
constituting a Prepayment) remitted by an Obligor with respect to a Contract
in excess of the Monthly Payment due with respect to such Contract, which
sums the Obligor has instructed the Servicer to hold and apply to Monthly
Payments due in one or more immediately subsequent calendar months.
"PAYMENT DATE" means, as to each Contract, the date each month therein
set forth as the date Monthly Payments are due.
"PERMITTED INVESTMENTS" means any one or more of the following
instruments, obligations or securities, in each case subject to any further
criteria specified in the related SUBI Supplement:
(a) obligations of, and obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any agency
thereof, provided such obligations are backed by the full faith and credit of
the United States;
(b) general obligations of or obligations guaranteed by FNMA or any
state of the United States, the District of Columbia or the Commonwealth of
Puerto Rico then rated the highest available credit rating of each Rating
Agency for such obligations;
(c) certificates of deposit issued by any depository institution or
trust company (including any Securitization Trustee) incorporated under the
laws of the United States or of any state thereof, the District of Columbia
or the Commonwealth of Puerto Rico and subject to supervision and examination
by banking authorities of one or more of such jurisdictions, provided that
the short-term unsecured debt obligations of such depository institution or
trust company are then rated the highest available rating of each Rating
Agency for such obligations;
(d) certificates of deposit, demand or time deposits of, bankers
acceptances issued by, or federal funds sold by any depository institution or
trust company (including any Securitization Trustee) incorporated under the
laws of the United States or any State and subject to supervision and
examination by federal and/or State banking authorities and the deposits of
which are fully insured by the Federal Deposit Insurance Corporation, so long
as at the time of such investment or contractual commitment providing for
such investment either such depository institution or trust company has the
Required Rating or such Securitization Trustee shall have received a letter
from
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each Rating Agency to the effect that such investment would not result in the
qualification, downgrading or withdrawal of the ratings then assigned to any
Rated Certificates;
(e) certificates of deposit issued by any bank, trust company, savings
bank or other savings institution and fully insured by the FDIC;
(f) repurchase obligations held by any Securitization Trustee that are
acceptable to the Securitization Trustee with respect to any security
described in clauses (a), (b) or (g) hereof or any other security issued or
guaranteed by any other agency or instrumentality of the United States, in
either case entered into with a federal agency or a depository institution or
trust company (acting as principal) described in clause (d) above; PROVIDED,
HOWEVER, that repurchase obligations entered into with any particular
depository institution or trust company (including such Securitization
Trustee) will not be Permitted Investments to the extent that the aggregate
principal amount of such repurchase obligations with such depository
institution or trust company held by such Securitization Trustee on behalf of
the related Securitization Trust or of all of the Titling Trust Assets shall
exceed 10% of either the Aggregate Net Investment Value or the aggregate
unpaid principal balance or face amount, as the case may be, of all Permitted
Investments so held thereby;
(g) interests in any open-end or closed-end management type investment
company or investment trust (i) registered under the Investment Company Act,
the portfolio of which is limited to the obligations of, or guaranteed by,
the United States and to agreements to repurchase such obligations, which
agreements, with respect to principal and interest, are at least 100%
collateralized by such obligations marked to market on a daily basis and the
investment company or investment trust shall take delivery of such
obligations either directly or through an independent custodian designated in
accordance with the Investment Company Act and (ii) acceptable to each Rating
Agency (as approved in writing by each Rating Agency) as collateral for
securities having ratings equivalent to the ratings of the Rated Certificates
on the Closing Date;
(h) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any State so
long as at the time of such investment or contractual commitment providing
for such investment (i) the long-term, unsecured debt of such corporation has
the highest available rating from each Rating Agency, (ii) such corporation
is TMCC and TMCC's long term debt obligations shall at such time have rating
of at least - from Standard & Poor's and at least - from Moody's, and TMCC's
short term debt obligations shall at such time have rating of at least - from
Standard & Poor's and at least - from Moody's or (iii) a Securitization
Trustee shall have received a letter from each Rating Agency to the effect
that such investment would not result in the qualification, downgrading or
withdrawal of the ratings then assigned to any Rated Certificates or
commercial paper or other short-term debt having the Required Rating;
(i) money market funds so long as such funds are rated Aaa by Moody's
(so long as Xxxxx'x is a Rating Agency) and AAAm by Standard & Poor's (so
long as Standard & Poor's is a Rating Agency), and any other fund for which a
Securitization Trustee or an Affiliate of such Securitization Trustee serves
as an investment advisor, administrator, shareholder servicing agent
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and/or custodian or subcustodian, provided that any shares of such funds have
a credit rating of at least Aaa by Moody's (so long as Xxxxx'x is a Rating
Agency) and AAAm by Standard & Poor's (so long as Standard & Poor's is a
Rating Agency) and notwithstanding that (i) such Trustee or Affiliate charges
and collects fees and expenses from such funds for services rendered, (ii)
such Trustee charges and collects fees and expenses for services rendered
pursuant to the related Securitization Trust Agreement or under the Trust
Agency Agreement and (iii) services performed for such funds and pursuant to
either such Agreement may converge at any time. Each of the Transferor and
the Servicer hereby specifically authorizes each such Trustee or Affiliate
thereof to charge and collect all fees and expenses from such funds for
services rendered to such funds, in addition to any fees and expenses such
Trustee may charge and collect for services rendered pursuant to either such
Agreement; and
(j) such other investments acceptable to each Rating Agency (as approved
in writing by each Rating Agency) as will not result in the qualification,
downgrading or withdrawal of the ratings then assigned to any Rated
Certificates by such Rating Agency;
provided that each of the foregoing investments shall mature no later than
the day specified in the related SUBI Supplement, and shall be required to be
held to such maturity.
None of the foregoing will be considered a Permitted Investment if:
(i) it constitutes a certificated security, bankers' acceptance,
commercial paper, negotiable certificate of deposit or other
obligation that constitutes an "instrument" within the meaning
of Section 9-105(1)(i) of the UCC and is susceptible of physical
delivery unless it is transferred to the Titling Trustee, a
Securitization Trustee or its Financial Intermediary in
accordance with Sections 8-313(1)(a), 8-313(1)(d)(i) or
8-313(1)(g) of the UCC, and such Trustee obtains evidence that
any such property that is in registrable form has been
registered in its name or the name of its Financial
Intermediary, its custodian or its nominee;
(ii) it constitutes a book-entry security held through the Federal
Reserve System pursuant to federal book-entry regulations,
unless, in accordance with applicable law, (A) a book-entry
registration thereof is made to an appropriate book-entry
account maintained with a Federal Reserve Bank by the Titling
Trustee, a Securitization Trustee or by a custodian therefor,
(B) a deposit advice or other written confirmation of such
book-entry registration is issued to such Trustee or custodian,
(C) any such custodian makes entries in its books and records
identifying such book-entry security is held through the Federal
Reserve System pursuant to federal book-entry regulations and
belongs to such Trustee and indicating that such custodian holds
such Permitted Investment solely as agent for such Trustee, (D)
such Trustee makes entries in its books and records establishing
that it holds such security solely as Titling Trustee or
Securitization Trustee for the Titling Trust or the related
Securitization Trust, as the case may be, and (E) any additional
or alternative
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procedures as may hereafter become necessary to effect complete
transfer of ownership thereof to such Trustee are satisfied,
consistent with changes in applicable law or regulations or the
interpretation thereof; or
(iii) it constitutes an uncertificated security under Article 8 of the
UCC that is not governed by clause (ii) above, unless the
transfer to, and ownership thereof by, the Titling Trustee or
Securitization Trustee, its Financial Intermediary, its
custodian or its nominee by the issuer of such security is
registered by the issuer thereof.
Notwithstanding anything to the contrary contained in this definition, no
Permitted Investment may be purchased at a premium and no Permitted
Investment shall be an interest only instrument. Any of the foregoing which
constitutes an uncertificated security shall not be considered a Permitted
Investment if: (i) a notation of the right of the issuer thereof to a lien
thereon is contained in the initial transaction statement therefor sent to
the Titling Trustee; (ii) the Titling Trustee has notice or actual knowledge
of (A) any restriction on the transfer thereof imposed by the issuer thereof,
or (B) any adverse claim, or a notation of any such restriction or of any
specific adverse claim as to which the issuer has a duty under the law of the
state in which the Corporate Trust Office is located at the time of
registration is contained in the initial transaction statement therefor sent
to the Titling Trustee; or (iii) to the Titling Trustee's actual knowledge, a
creditor has served legal process upon the issuer thereof at its chief
executive office in the United States which legal process attempts to place a
Lien thereon prior to the registration thereof in the name of the Titling
Trustee.
For purposes of this definition, any reference to the highest available
credit rating of an obligation shall mean the highest available credit rating
for such obligation (excluding any "+" signs associated with such rating), or
such lower credit rating (as approved in writing by each Rating Agency) as
will not result in the qualification, downgrading or withdrawal of the rating
then assigned to any Rated Certificates by such Rating Agency.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated association, Governmental Authority or any other entity.
"PLAN" means an "employee benefit plan," as such term is defined in
Section 3(3) of ERISA.
"PREPAYMENT" means, with respect to any Contract other than a Charged-off
Contract, payment to the Servicer of 100% of the Outstanding Principal
Balance of such Contract together with all accrued and unpaid lease charge or
interest thereon.
"PRINCIPAL COLLECTIONS" means with respect to any Collection Period, all
Collections allocable to the principal component of any Contract (including
any payment in respect of the related Leased Vehicle, other than any payment
as to which a Loss Amount has been realized and allocated during any prior
Collection Period), discounted to the extent such Contract is a Discounted
Contract, and shall include for each Collection Period during the Revolving
Period, amounts otherwise allocable
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or distributable to Certificateholders on the related Monthly Allocation Date
as reimbursement of Loss Amounts allocable to the Investor Interest.
"RATED CERTIFICATES" means each Class of Certificates that has been rated
by a Rating Agency at the request of the Transferor.
"RATING AGENCY" means each nationally recognized statistical rating
organization that rates a security in a Securitized Financing at the request
of the Grantor as of the related Closing Date at the request of the
Transferor and continues to do so.
"RECORD DATE" means, with respect to each Distribution Date, (i) in the
case of the Class A Certificates, the calendar day immediately preceding
such Distribution Date (or, if Definitive Certificates have been issued, the
last day of the immediately preceding calendar month) and (ii) in the case of
the Class B Certificates, the last day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"REGISTRAR OF TITLES" means any applicable department, agency or official
in a State responsible for accepting applications for, and maintaining
records regarding, Certificates of Title and liens thereon.
"REQUIRED AMOUNT" means, with respect to any Distribution Date, the
amount by which Interest Collections allocable to the Investor Interest for
the related Collection Period are insufficient to pay the amounts set forth
in Section 3.02 (b) of the Securitization Trust Agreement including, among
other things, (i) accrued and unpaid interest on the Certificates, (ii)
overdue interest (with interest accrued thereon during such Collection period
at the applicable Certificate Rate, to the extent lawful) and (iii) any Loss
Amount for such Collection Period allocable to the Investor Interest,
together with interest accrued thereon through the related Collection Period
at the applicable Certificate Rate.
"REQUIRED RATING" means a rating on commercial paper or other short term
unsecured debt obligations of Prime-1 by Moody's so long as Xxxxx'x is a
Rating Agency and A-1+ by Standard & Poor's so long as Standard & Poor's is a
Rating Agency; and any requirement that deposits or debt obligations have the
"Required Rating" shall mean that such deposits or debt obligations have the
foregoing required ratings from Moody's and Standard & Poor's.
"RESIDUAL UTI CERTIFICATE" has the meaning set forth in Section 11.02 of
the UTI Supplement.
"RESIDUAL UTI UNIT" has the meaing set forth in Section 11.01 of the UTI
Supplement.
"RESIDUAL VALUE" means the actual Liquidation Proceeds, net of
Liquidation Expenses, received with respect to the disposition of any Leased
Vehicle, whether at maturity of the related Contract or otherwise, and
whether or not such Residual Value exceeds the Booked Residual Value.
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"RESIDUAL VALUE INSURANCE POLICY" means Residual Value Insurance Policy
number _______________ issued on _______________ by ________________, in
favor of TMCC and naming the Titling Trust as additional insured.
"RESPONSIBLE OFFICER" means an officer of the Titling Trustee or
Securitization Trustee assigned to the relevant Corporate Trust Office,
including the President, any Vice President, any trust officer, the corporate
Secretary and any assistant corporate Secretary or any other officer
performing functions similar to those performed by the persons who at the
time shall be such officers, and any other officer thereof to whom a matter
is referred because of his or her knowledge of and familiarity with the
particular subject.
"SCHEDULE OF CONTRACTS AND LEASED VEHICLES" means the list of Contracts
and related Leased Vehicles, on microfiche, microfilm or hard paper copy,
that are included as Titling Trust Assets in the Titling Trust, as such list
may be revised and supplemented from time to time (which Schedules may be
prepared on either a cumulative or additive basis) pursuant to Section 5.01
of the 1997-A Servicing Supplement, and which shall set forth the following
information with respect to each such Contract in separate columns:
Contract Number
Date of Origination
Maturity Date
Monthly Payment
Original Principal Balance
Outstanding Principal Balance as of the last day of the
immediately preceding calendar month
Booked Residual Value
Security Deposit
Sub-Trust to which Contract is assigned
Vehicle Identification Number
Model Year
Make
Model
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIZED FINANCING" means (i) any financing transaction of any sort
undertaken by the related Beneficiary based on or secured by, directly or
indirectly, Titling Trust Assets, the UTI or any UTI Unit, any SUBI or any
interest in any of the foregoing, (ii) any sale by a Beneficiary of any
interest in one or more SUBIs or (iii) any other asset securitization,
secured loan or similar transaction involving Titling Trust Assets or any
beneficial interest therein or in the Titling Trust.
"SECURITY DEPOSIT" means the security deposit, reconditioning reserve or
similar deposit paid by an Obligor at the time of origination of the related
Contract; provided that the Titling Trust Assets
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shall includeSecurity Deposits such deposits only to the extent actually
applied to cover excess wear and tear charges or may otherwise lawfully be
retained by the Titling Trust as lessor or its agents in respect of fees,
charges or reimbursable advances, payments or expenses thereby under the
related Contract.
"SERVICER" means TMCC, in its capacity as servicer under the Titling
Trust Agreement and any relevant Servicing Supplement, or any successor to
TMCC in such capacities.
"SERVICER EXPENSES" means all reasonable amounts expended by the Servicer
in connection with its performance of its duties under the Titling Trust
Agreement, including those incurred in connection with the preparation,
execution and delivery of all legal documentation relating to the formation
of the Titling Trust and the servicing of the UTI Assets prior to the
creation of the first SUBI, the making of any requisite license or other
applications, filings and related filing fees in connection with the
commencement of origination of leases and the recordation of related
certificates of title in the name of the Titling Trust and the perfection of
security interests therein or the registration of any offering of securities
in any Securitized Financing, the costs and expenses of preparing and
delivering servicing, tax and other reports as set forth in the Titling Trust
Agreement and the costs and expenses of providing any monitoring, billing and
collection services with respect thereto, in each case including any
reasonable attorneys' fees and expenses, and in each case excluding any costs
and expenses to be paid out of the Servicing Fee specified in any supplement
to the Titling Trust Agreement.
"SERVICER REIMBURSEMENT" means the amount of any required reimbursement
to the Servicer of Servicer Expenses on a Closing Date or Distribution Date
as set forth in the related SUBI Servicing Supplement.
"SERVICER'S CERTIFICATE" means an certificate of an officer or other
authorized signatory of the Servicer completed and executed pursuant to
Section 5.01(b) of the related SUBI Servicing Supplement.
"SERVICING FEE" means (a) prior to the creation of the first SUBI, zero
and (b) after the creation of the first SUBI, the sum of each SUBI Servicing
Fee specified in a SUBI Supplement plus (i) during any UTI Collection Period
for which TMCC is the Servicer, 1.00% of the outstanding balances of the
Contracts in the UTI Portfolio and (ii) during any UTI Collection Period for
which TMCC is not the Servicer, -% the outstanding balances of the Contracts
in the UTI Portfolio during any UTI Collection Period for which TMCC is no
longer the Servicer.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a division
of The McGraw Hill Companies, Incorporated, and its successors.
"STATE" means any state of the United States, the District of Columbia
and the Commonwealth of Puerto Rico in which, pursuant to the Origination
Criteria, an Eligible Contract may be originated.
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"SUBI" means any "special unit of beneficial interest" in the Titling
Trust comprised of a beneficial interest in a SUBI Sub-Trust.
"SUBI ACCOUNT" means, with respect to a SUBI, the SUBI Collection Account
or the SUBI Lease Funding Account that is established and maintained in
connection therewith in accordance with Section 7.01(a) of the Titling Trust
Agreement.
"SUBI ASSETS" means, with respect to any SUBI, those Titling Trust Assets
that are identified as relating to and allocated to such SUBI by the Titling
Trustee upon the written direction of the UTI Beneficiary pursuant to the
Titling Trust Agreement and related SUBI Supplement.
"SUBI BENEFICIARY" means any Beneficiary that is a Beneficiary because it
is the holder or pledgee of a SUBI Certificate.
"SUBI CERTIFICATE" means, with respect to a SUBI, each of the
certificates evidencing such SUBI, substantially in the form included as an
exhibit to each SUBI Supplement, executed and delivered pursuant to the
related SUBI Supplement.
"SUBI COLLECTION ACCOUNT" means, with respect to a SUBI, any account
denominated as such that is established and maintained in accordance with
the related SUBI Supplement and SUBI Servicing Supplement.
"SUBI LEASE FUNDING ACCOUNT" means, with respect to a SUBI, any account
denominated as such that is established and maintained in accordance with
related SUBI Supplement and SUBI Servicing Supplement.
"SUBI PORTFOLIO" means, with respect to any SUBI, the related Contracts
and Leased Vehicles comprising the related SUBI Assets.
"SUBI SERVICING SUPPLEMENT" means any agreement supplementing the
servicing provisions of the Titling Trust Agreement that is executed by
TMCC, the Titling Trustee and one or more other parties in connection with a
Securitized Financing.
"SUBI SUB-TRUST" means a separate Sub-Trust of the Titling Trust that is
established at the direction of the UTI Beneficiary on the books and records
of the Titling Trust by the Titling Trustee and that is accounted for
separately within the Titling Trust. The Titling Trustee shall from time to
time, as directed in writing by the UTI Beneficiary, and subject to Section
3.01(d) of the Titling Trust Agreement, identify or cause to be identified on
the books and records of the Titling Trust one or more separate Sub-Trusts to
be accounted for separately within the Titling Trust (each, a "SUBI
Sub-Trust") and identify and allocate, or cause to be identified and
allocated, to such SUBI Sub-Trust on such books and records certain Titling
Trust Assets that are not then allocated to another SUBI Sub-Trust. Upon
such allocation, such related SUBI Assets shall no longer be assets of, or
allocated to, the UTI (unless and until specifically reallocated to the UTI
from that SUBI in
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accordance with the related SUBI Supplement). Each SUBI shall constitute a
separate series of the Titling Trust pursuant to Section 3806(b)(2) of the
Delaware Act and shall represent the beneficial interest in such SUBI and the
SUBI Assets allocated thereto from time to time. Each SUBI shall be
represented by one or more separate SUBI Certificates issued pursuant to the
related SUBI Supplement. The Titling Trustee shall issue each SUBI
Certificate to or upon the order of the UTI Beneficiary.
"SUBI SUPPLEMENT" means any of the one or more supplements to the Titling
Trust Agreement, substantially in the form attached thereto as an exhibit,
the execution and delivery of which by the UTI Beneficiary and the Titling
Trustee in accordance with Section 3.01(c) of the Titling Trust Agreement
will effect the creation of a SUBI.
"SUB-TRUST" means any of the sub-trusts of the Titling Trust established
by the Titling Trustee as directed by the UTI Beneficiary from time to time,
and to which the Titling Trustee will allocate Titling Trust Assets
identified by the UTI Beneficiary, having the name and beneficiaries
designated by the UTI Beneficiary and being a separate series of the Titling
Trust pursuant to Section 3806(b)(2) of the Delaware Act.
"TITLING TRUST" means Toyota Lease Trust, a Delaware business trust,
formed pursuant to the Titling Trust Agreement.
"TITLING TRUST AGREEMENT" means the Trust and Servicing Agreement dated
as of October 1, 1996, among TMCC, TMTT, Inc., as Titling Trustee, and, for
certain limited purposes, the Trust Agent, as amended and restated by the
Amended and Restated Trust and Servicing Agreement also dated as of October
1, 1996 among TMCC, TMTT, Inc., as Titling Trustee, and, for certain limited
purposes, First Bank.
"TITLING TRUST ASSETS" means: (i) any capital contributed by the Grantor;
(ii) the Contracts and all proceeds thereof; (iii) the Leased Vehicles and
all proceeds thereof, including each Certificate of Title and the Residual
Value of each Leased Vehicle, whether realized through the exercise by
Obligors of purchase options under the Contracts, the proceeds of sale of the
Leased Vehicles to Dealers or third parties or through payments received from
any other Person (directly or indirectly) under any related Insurance Policy
(to the extent not applied to repair or otherwise paid to a third Person or
Governmental Authority by the Servicer as required by law or pursuant to its
normal servicing practices) or as a subsidy or other funding of any
modification of the related Booked Residual Value; (iv) all of the Titling
Trust's rights (but not its obligations) with respect to any Contract or
Leased Vehicle, including the right to enforce and to proceeds arising from
all Dealer repurchase obligations arising under Dealer Agreements; (v) all of
TMCC's rights (but not its obligations) with respect to any Contract or
Leased Vehicle, including the right to enforce and to proceeds arising from
all Dealer repurchase obligations arising under Dealer Agreements; (vi) any
Insurance Policy and rights thereunder or proceeds therefrom relating to any
of the Contracts, Leased Vehicles or payments of the related Obligors with
respect thereto; (vii) any portion of any Security Deposit actually and
properly applied by the Servicer against amounts due under the related
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Contract, to the extent not applied to making repairs to the related Leased
Vehicle or paid to a third party or Governmental Authority in accordance with
the Services normal servicing practices; and (viii) all proceeds of any of
the foregoing.
"TITLING TRUSTEE" means TMTT, Inc., in its capacity as such under the
Titling Trust Agreement, and any successor thereto in such capacity appointed
pursuant to the Titling Trust Agreement.
"TITLING TRUSTEE ACCOUNTS" means any of the separate UTI Collection
Account, Lease Funding Account, SUBI Collection Account and/or SUBI Lease
Funding Account established by the Titling Trustee with respect to the UTI or
the related SUBI as described in the Titling Trust Agreement and the related
SUBI Supplement and SUBI Servicing Supplement. Each such account maintained
with respect to Rated Certificates shall be an Eligible Account.
"TITLING TRUSTEE STOCK" means the issued and outstanding capital stock of
the Titling Trustee, together with any additional capital stock of the
Titling Trustee that may be issued from time to time.
"TLI" means Toyota Leasing, Inc. and its successors.
"TMCC" means Toyota Motor Credit Corporation, a California corporation,
its successors and assigns.
"TMS" means Toyota Motor Sales U.S.A., Inc., a California corporation,
its successors and assigns.
"TRANSACTION DOCUMENTS" means and includes the Titling Trust Agreement,
the UTI Supplement and, with respect to any Securitized Financing involving
the creation of a SUBI, the related SUBI Supplement, SUBI Certificate
Agreement, SUBI Servicing Supplement, SUBI Certificate(s), Securitization
Trust Agreement or indenture, trust agreement or similar instrument governing
the securitization of such SUBI and any securities offered or sold that are
secured by interests in the related SUBI, in each case as the same may be
amended, supplemented or modified from time to time but only to the extent
that any such amendment, supplement or modification relates to such SUBI.
"TRANSFEROR" means TLI in its capacity as transferor under any
Securitization Trust Agreement and each other related Transaction Document.
"TRUST AGENCY AGREEMENT" means any of the one or more agency agreements
entered into by the Titling Trustee in furtherance of its execution of any
of the trusts or powers under the Titling Trust Agreement or performance of
any duties under the Titling Trust Agreement either directly or by or through
agents or attorneys or one or more custodians as set forth in the Titling
Trust Agreement. In addition, with respect to any Securitization Trustee,
Trust Agency Agreement means any of the one or more agency agreements entered
into by such Securitization Trustee in furtherance
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of its execution of any of the trusts or powers under the related
Securitization Trust Agreement or performance of any duties under such
Securitization Trust Agreement either directly or by or through agents or
attorneys or one or more custodians as set forth in such Securitization Trust
Agreement.
"TRUST AGENT" means any of the one or more Persons, including any
Affiliate of the Titling Trustee or any Securitization Trustee, engaged by
the Titling Trustee or such Securitization Trustee pursuant to a Trust Agency
Agreement.
"TRUST ASSET TRANSFER" means the allocation to a SUBI Sub-Trust of Trust
Assets not then allocated to any other SUBI Sub-Trust pursuant to Section
3.01(c) of the Titling Trust Agreement.
"TRUST STATES" initially means California, Florida, Michigan, Ohio and
Pennsylvania and after the date of this Agreement, means those States and
such other States as designated in writing from time to time to the Titling
Trustee in which Dealers are regularly originating Contracts and assigning
them to the Titling Trust as contemplated by the Titling Trust Agreement.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
"UNITED STATES" means the United States of America, its territories and
possessions and areas subject to its jurisdiction.
"UNDIVIDED TRUST INTEREST" or "UTI" means the exclusive, undivided
beneficial interest in all Trust Assets (including Contracts and Leased
Vehicles), other than SUBI Assets, held by the UTI Beneficiary.
"UNDIVIDED TRUST INTEREST CERTIFICATE" or "UTI CERTIFICATE" means the one
or more trust certificates (together with any replacements thereof) issued by
the Titling Trust at the direction of the UTI Beneficiary substantially in
the form attached as an exhibit to the form of UTI Supplement.
"UTI ACCOUNT" means any of the separate UTI Collection Accounts and/or
Lease Funding Account established by the Titling Trustee with respect to the
UTI pursuant to Section 12.01 of the UTI Supplement.
"UTI ASSETS" means all Titling Trust Assets that have not been allocated
to a SUBI Sub-Trust.
"UTI BENEFICIARY" means TMCC, in its capacity as the initial beneficiary
of the Titling Trust on the date of the UTI Supplement, and its successors
and assigns (exclusive of any pledgee of a UTI Pledge).
"UTI COLLECTION ACCOUNT" means the separate account established by the
Titling Trustee with respect to the UTI pursuant to Section 12.01 of the UTI
Supplement.
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"UTI PLEDGE" means a pledge of and grant of a security interest in the
UTI and UTI Certificate, or any interest therein, in connection with any
Securitized Financing, and the terms and conditions thereof set forth in the
related documentation.
"UTI PORTFOLIO" means the Contracts and Leased Vehicles comprising the
Undivided Trust Interest.
"UTI SUB-TRUST" means the separate Sub-Trust of the Titling Trust
containing all Trust Assets that have not been allocated to any SUBI
Sub-Trust.
"UTI SUPPLEMENT" means any of the one or more supplements or amendments
to the Titling Trust Agreement, substantially in the form attached thereto as
an exhibit, the execution and delivery of which by the UTI Beneficiary and
the Titling Trustee in accordance with Section 3.01(b) of the Titling Trust
Agreement will effect the creation of a UTI.
"UTI CERTIFICATE" has the meaning described in Section 11.02 of the UTI
Supplement.
"UTI UNIT CERTIFICATE" has the meaning described in Section 11.02 of the
UTI Supplement.
"UTI UNIT" has the meaning described in Section 11.01 of the UTI
Supplement.
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