Duties of Owner Trustee. The Owner Trustee, both prior to and after the occurrence of an Event of Servicer Default, shall undertake to perform such duties as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and the Owner Trustee has received notice of such Event of Servicer Default, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party and on behalf of the Trust, file and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided in the documents to which the Trust is a party, the Owner Trustee shall have no obligation to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivables.
Appears in 2 contracts
Samples: Trust and Servicing Agreement (Bay View Deposit CORP), Trust and Servicing Agreement (Bay View Deposit CORP)
Duties of Owner Trustee. The Owner Trustee, both prior to and after the occurrence of an Event of Servicer Default, shall undertake to perform such duties as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and and, in the case of an Event of Servicer Default described in clause (i) of Section 13.01, the Owner Trustee has received notice of such Event of Servicer Default, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party and shall on behalf of the Trust, Trust file and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided in the documents to which the Trust is a party, the Owner Trustee shall have no obligation to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivables. The Owner Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Owner Trustee that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. TRUST AND SERVICING AGREEMENT No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own negligent action, its own negligent failure to act, or its own bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Servicer Default, and after the curing of all such Events of Servicer Default that may have occurred, the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as shall be specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Owner Trustee and, in the absence of bad faith on the part of the Owner Trustee, or manifest error, the Owner Trustee may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Owner Trustee and conforming to the requirements of this Agreement;
(ii) The Owner Trustee shall not be liable for an error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Owner Trustee shall have been negligent in ascertaining the pertinent facts;
(iii) The Owner Trustee shall not be liable with respect to any action taken, suffered, or omitted to be taken in good faith in accordance with this Agreement or at the direction of the Certificates relating to the time, method, and place of conducting any proceeding for any remedy available to the Owner Trustee, or exercising any trust or power conferred upon the Owner Trustee, under this Agreement;
(iv) The Owner Trustee shall not be charged with knowledge of any failure by the Servicer to comply with the obligations of the Servicer referred to in clauses (i) or (ii) of Section 13.01, or of any failure by the Transferor to comply with the obligations of the Transferor referred to in clause (ii) of Section 13.01, unless a Responsible Officer of the Owner Trustee receives written notice of such failure (it being understood that knowledge of the Servicer or the Servicer as custodian, in its capacity as agent for the Owner Trustee, is not attributable to the Owner Trustee) from the Servicer or the Transferor, as the case may be; and
(v) Without limiting the generality of this Section or Section 14.04, the Owner Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to therein or any financing statement evidencing a security interest in the Receivables or the Financed Vehicles, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance of the Financed Vehicles or Obligors or to effect or maintain any such insurance, (C) to see to the payment or TRUST AND SERVICING AGREEMENT discharge of any tax, assessment, or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed, or levied against, any part of the Trust, (D) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Owner Trustee pursuant to this Agreement believed by the Owner Trustee to be genuine and to have been signed or presented by the proper party or parties, or (E) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Transferor's or the Servicer's representations, warranties or covenants or the Servicer's duties and obligations as Servicer and as custodian of the Receivable Files under this Agreement. The Owner 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 hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Owner Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Owner Trustee shall be the successor to, and be vested with the rights, duties, powers, and privileges of, the Servicer in accordance with the terms of this Agreement. Except for actions expressly authorized by this Agreement, the Owner Trustee shall take no action reasonably likely to impair the security interests created or existing under any Receivable or to impair the value of any Receivable.
Appears in 2 contracts
Samples: Trust and Servicing Agreement (Bay View Deposit CORP), Trust and Servicing Agreement (Bay View Transaction Corp)
Duties of Owner Trustee. The Owner Trustee, both prior to and after the occurrence of an Event of Servicer Default, shall undertake to perform such duties as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and the Owner Trustee has received notice of such Event of Servicer Default, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates Certificate in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the CertificateholdersCertificateholder, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party Certificateholder and on behalf of the Trust, file and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided in the documents to which the Trust is a party, the Owner Trustee shall have no obligation to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivables.
Appears in 1 contract
Samples: Trust and Servicing Agreement (Bay View Deposit CORP)
Duties of Owner Trustee. (a) The Owner Trustee, both prior to and after the occurrence of an Event of Servicer Default, shall undertake Trustee undertakes to perform such duties duties, and only such duties, as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and the Owner Trustee has received notice of such Event of Servicer Default, the Owner Trustee shall exercise such of the rights Pooling and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Servicing Agreement and the other documents to which Basic Documents, including the Trust is a party and to administer administration of the Trust in the interest of the Residual Interest Holders and the CertificateholdersRegistered Owners, subject to the Basic Documents and in accordance with the provisions of this Agreement and the other documents to which the Trust is a partyPooling and Servicing Agreement. Without limiting the foregoingNo implied covenants or obligations shall be read into this Agreement, the Owner Trustee shall, upon written direction of the Instructing Party Pooling and on behalf of the Trust, file and prove Servicing Agreement or any claim or claims that may exist on behalf of the Trust other Basic Document against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Owner Trustee.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party Basic Documents to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a partyBasic Document, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided The Owner Trustee shall not be obligated to monitor the performance of the Administrator.
(c) In the absence of bad faith on its part, the Owner Trustee may conclusively rely upon certificates or opinions furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the documents to which truth of the Trust is a partystatements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have no obligation examined such certificates or opinions so as to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection determine compliance of the Receivablessame with the requirements of this Agreement.
(d) The Owner Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect of subsection 6.1(a) or (b):
(ii) the Owner Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Owner Trustee was grossly negligent in ascertaining the pertinent facts; and
(iii) the Owner Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 4.1, 4.2 or 6.4 or any other provision of this Agreement or in accordance with any Basic Document.
(e) Subject to Section 5.1, monies received by the Owner Trustee hereunder need not be segregated in any manner except to the extent required by law or the Pooling and Servicing Agreement and the other Basic Documents and may be deposited under such general conditions as may be prescribed by law, and the Owner Trustee shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is inconsistent with the purposes of the Trust set forth in Section 2.3 or (ii) would, to the actual knowledge of a Responsible Officer of the Owner Trustee, result in the Trust's becoming taxable as a corporation for federal income tax purposes.
(g) The Registered Owners shall not direct the Owner Trustee to take action that would violate the provisions of this Section 6.1.
Appears in 1 contract
Duties of Owner Trustee. (a) Subject to Article IV and in accordance with the terms of the Basic Documents, the Certificateholder may by written instruction direct the Owner Trustee in the management of the Owner Trust Estate. Such direction may be exercised at any time by written instruction of the Certificateholder pursuant to Article IV.
(b) The Owner Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with respect xx xxch trusts but only upon the terms of this Agreement.
(c) The Owner Trustee, both prior upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to and after the occurrence Owner Trustee that shall be specifically required to be furnished pursuant to any provision of an Event of Servicer Defaultthis Agreement, shall undertake examine them to perform determine whether they conform on their face to the requirements of this Agreement.
(d) No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own negligent action, its own negligent failure to act, its own bad faith or its own willful misfeasance; provided, however, that:
(i) the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement and the Basic Documents, the Owner Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured Agreement and the Basic Documents, no implied covenants or obligations shall be read into this Agreement against the Owner Trustee has received notice of such Event of Servicer DefaultTrustee, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty permissive right of the Owner Trustee to discharge do things enumerated in this Agreement and the Basic Documents shall not be construed as a duty and, in the absence of bad faith on the part of the Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Owner Trustee and conforming on their face to the requirements of this Agreement and the Basic Documents;
(or cause to ii) the Owner Trustee shall not be discharged) all personally liable for an error of judgment made in good faith by a Trust Officer, unless it shall be proved that the Owner Trustee was negligent in performing its responsibilities pursuant to duties in accordance with the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party and on behalf of the Trust, file and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and Basic Documents; and
(iii) the Owner Trustee shall not be held personally liable for with respect to any action taken, suffered or omitted to be taken in good faith in accordance with the default or failure direction of the Administrator Certificateholder.
(e) The Owner Trustee shall not be required to carry out expend or risk its obligations under the Administration Agreement. Except as expressly provided own funds or otherwise incur financial liability in the documents 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 which it.
(f) All information obtained by the Owner Trustee regarding the Obligors and the Receivables contained in the Trust, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Owner Trustee in confidence and shall not be disclosed to any other Person, unless such disclosure is required by any applicable law or regulation or pursuant to subpoena.
(g) Pursuant to Section 3.02 of the Sale and Servicing Agreement, in the event that the Owner Trustee discovers that a representation or warranty with respect to a Receivable was incorrect as of the time specified with respect to such representation and warranty and such incorrectness materially and adversely affects the interests of the Trust is a partyin such Receivable, the Owner Trustee shall have no obligation give prompt written notice to administerthe Servicer, service or collect the Receivables or Depositor and the Indenture Trustee of such incorrectness. Pursuant to maintain, monitor or otherwise supervise the administration, servicing or collection Section 4.08 of the ReceivablesSale and Servicing Agreement, in the event that the Owner Trustee discovers that any covenant of the Servicer set forth in Section 4.06 or 4.07 of the Sale and Servicing Agreement has been breached by the Servicer and such incorrectness materially and adversely affects the interests of the Trust in any Receivable, the Owner Trustee shall give prompt written notice to the Servicer, the Depositor and the Indenture Trustee of such breach.
Appears in 1 contract
Duties of Owner Trustee. The Owner Trustee, both prior to and after the occurrence of an Event of Servicer Default, shall undertake to perform such duties as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and the Owner Trustee has received notice of such Event of Servicer Default, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates Certificate in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the CertificateholdersCertificateholder, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party Certificateholder and on behalf of the Trust, file and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided in the documents to which the Trust is a party, the Owner Trustee shall have no obligation to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivables.. TRUST AND SERVICING AGREEMENT
Appears in 1 contract
Samples: Trust and Servicing Agreement (Bay View Transaction Corp)
Duties of Owner Trustee. (a) Subject to Article IV and in accordance with the terms of the Basic Documents, the Certificateholders may by written instruction direct the Owner Trustee in the management of the Trust. Such direction may be exercised at any time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall take such action or refrain from taking such action under this Agreement as it may be directed in writing by the Certificateholders from time to time; provided, however, that the Owner Trustee shall not be required to take or refrain from taking any such action if it shall have determined, or shall have been advised by counsel, that such performance is likely to involve the Owner Trustee in personal liability or is contrary to the terms of this Agreement or of any document contemplated hereby to which the Trust is a party or is otherwise contrary to law. If at any time the Owner Trustee determines that it requires or desires guidance regarding the application of any provision of this Agreement or any other document, then the Owner Trustee may deliver a notice to the Certificateholders requesting written instructions as to the course of action desired by the Certificateholders and such instructions shall constitute full and complete authorization and protection for actions taken by the Owner Trustee in reliance thereon. If the Owner Trustee does not receive such instructions within five (5) Business Days after it has delivered to the Certificateholders such notice requesting instructions, or such shorter period of time as may be set forth in such notice, it shall refrain from taking any action with respect to the matters described in such notice. Each instruction delivered by the Certificateholders to the Owner Trustee shall certify to the Owner Trustee that any actions to be taken pursuant to such instruction comply with the terms of this Agreement and the Owner Trustee may rely on such certification and instruction without inquiry except to the extent it has actual knowledge to the contrary.
(c) The Owner Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with respect to such trusts but only upon the terms of this Agreement.
(d) The Owner Trustee, both prior upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to and after the occurrence Owner Trustee that shall be specifically required to be furnished pursuant to any provision of an Event of Servicer Defaultthis Agreement, shall undertake examine them to perform determine whether they conform on their face to the requirements of this Agreement.
(e) No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act, its own bad faith or its own willful misfeasance; provided, however, that:
(i) the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. If an Event of Servicer Default , no implied covenants or obligations shall have occurred and shall not have been cured and be read into this Agreement against the Owner Trustee has received notice of such Event of Servicer DefaultTrustee, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty permissive right of the Owner Trustee to discharge do things enumerated in this Agreement and the Basic Documents shall not be construed as a duty and, in the absence of bad faith on the part of the Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Owner Trustee and conforming on their face to the requirements of this Agreement and the Basic Documents;
(or cause to ii) the Owner Trustee shall not be discharged) all personally liable for an error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Owner Trustee was grossly negligent in performing its responsibilities pursuant to duties in accordance with the terms of this Agreement and the other documents Basic Documents;
(iii) the Owner Trustee shall not be personally liable with respect to which the Trust is a party and any action taken, suffered or omitted to administer the Trust be taken in the interest of the Residual Interest Holders and the Certificateholders, subject to and good faith in accordance with the provisions direction of the Holders of the Certificates representing at least a majority of the Percentage Interest (or such larger or smaller percentage of the Percentage Interest as may be required by any other provision of this Agreement or the other Basic Documents); and
(iv) in no event shall the Owner Trustee be personally liable for (x) special consequential or punitive damages, however styled, including, without limitation, lost profits, (y) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Trust’s securities or assets or (z) any losses due to forces beyond the reasonable control of the Owner Trustee, including without limitation, strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
(f) The Owner 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.
(g) All information obtained by the Owner Trustee regarding the Obligors and the Receivables contained in the Trust, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Owner Trustee in confidence and shall not be disclosed to any other documents Person, unless such disclosure is required by any applicable law or regulation or pursuant to which the Trust is subpoena.
(h) The Owner Trustee shall provide prompt notice to Toyota Motor Credit Corporation and Toyota Auto Finance Receivables LLC (each, a party. Without limiting the foregoing“TMCC Party,” and together, the “TMCC Parties”) of all demands received by an officer in the Corporate Trust Services Department of the Owner Trustee for the repurchase or replacement of any Receivable for breach of the representations and warranties concerning such Receivable (each, a “Demand”). If any such Demand is made in non-written form, the Owner Trustee shall request that such Demand be put into writing and delivered to it; provided, however, that the Owner Trustee shall notify the TMCC Parties regardless of whether any such Demand is made in writing. The obligations of the Owner Trustee under the first two sentences of this Section 6.03(h) to notify the TMCC Parties of any such Demand made in non-written form shall not be applicable during such time as the interpretations of the requirements of the Repurchase Rules and Regulations (as defined below) explicitly require reporting by TMCC Parties solely with respect to Demands in written form. The Owner Trustee shall, upon written direction request of either TMCC Party, provide notification to the TMCC Parties with respect to any actions taken by the Owner Trustee with respect to any such Demand received by the Owner Trustee in respect of any Receivables, such notifications to be provided by the Owner Trustee promptly after receipt by the Owner Trustee of such request but not more than once each calendar month or such other time frame as may be mutually agreed to by the Owner Trustee and the applicable TMCC Party. The Owner Trustee and the Depositor acknowledge and agree that the purpose of this Section 6.03(h) is to facilitate compliance by the TMCC Parties with Rule 15Ga-1 under the Securities Exchange Act of 1934, as amended, and Items 1104(e) and 1121(c) of Regulation AB (the “Repurchase Rules and Regulations”). The Owner Trustee shall cooperate with reasonable written requests received by it from the TMCC Parties to deliver any and all records and any other information in the possession of the Instructing Party and on behalf Owner Trustee that is necessary in the good faith determination of the Trust, file TMCC Parties to permit the TMCC Parties to comply with the provisions of Repurchase Rules and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the TransferorRegulations. Notwithstanding the foregoingSubject to its duties explicitly set forth herein, the Owner Trustee shall not have any responsibility or liability in connection with the compliance of either TMCC Party or a securitizer with the Securities Exchange Act of 1934, as amended, or Regulation AB or any filing required to be deemed to have discharged its duties and responsibilities hereunder and made by a TMCC Party or a securitizer under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act Securities Exchange Act of 1934, as amended, or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided in the documents to which the Trust is a party, the Owner Trustee shall have no obligation to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the ReceivablesRegulation AB.
Appears in 1 contract
Samples: Trust Agreement (Toyota Auto Finance Receivables LLC)
Duties of Owner Trustee. (a) Subject to Article IV and in accordance with the terms of the Basic Documents, the Servicer may direct the Owner Trustee pursuant to Sections 4.01 and 4.04 of the Sale and Servicing Agreement and the Certificateholders may by written instruction direct the Owner Trustee in the management of the Trust. Such direction may be exercised at any time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall take such action or refrain from taking such action under this Agreement as it may be directed in writing by the Certificateholders from time to time; provided, however, that the Owner Trustee shall not be required to take or refrain from taking any such action if it shall have determined, or shall have been advised by counsel, that such performance is likely to involve the Owner Trustee in personal liability or is contrary to the terms of this Agreement or of any document contemplated hereby to which the Trust is a party or is otherwise contrary to law. If at any time the Owner Trustee determines that it requires or desires guidance regarding the application of any provision of this Agreement or any other document, then the Owner Trustee may deliver a notice to the Certificateholders requesting written instructions as to the course of action desired by the Certificateholders and such instructions shall constitute full and complete authorization and protection for actions taken by the Owner Trustee in reliance thereon. If the Owner Trustee does not receive such instructions within five (5) Business Days after it has delivered to the Certificateholders such notice requesting instructions, or such shorter period of time as may be set forth in such notice, it shall refrain from taking any action with respect to the matters described in such notice and will have no liability for such inaction. Each instruction delivered by the Certificateholders to the Owner Trustee shall certify to the Owner Trustee that any actions to be taken pursuant to such instruction comply with the terms of this Agreement and the Owner Trustee may rely on such certification and instruction without inquiry except to the extent it has actual knowledge to the contrary.
(c) The Owner Trustee accepts the trusts xxxxxx created and agrees to perform its duties hereunder with respect to such trusts but only upon the terms of this Agreement.
(d) The Owner Trustee, both prior upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to and after the occurrence of an Event of Servicer DefaultOwner Trustee that shall be specifically required to be furnished pursuant to Sections 3.03(c) or (f), shall undertake examine them to perform determine whether they conform on their face to the requirements of Sections 3.03(c) or (f), as applicable, of this Agreement.
(e) The Owner Trustee shall not be liable hereunder for other than, and no provision of this Agreement shall be construed to relieve the Owner Trustee from liability for, its own grossly negligent action, its own grossly negligent failure to act, its own bad faith or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. If an Event of Servicer Default , no implied covenants or obligations shall have occurred and shall not have been cured and be read into this Agreement against the Owner Trustee has received notice of such Event of Servicer DefaultTrustee, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty permissive right of the Owner Trustee to discharge do things enumerated in this Agreement and the Basic Documents shall not be construed as a duty and, in the absence of bad faith on the part of the Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Owner Trustee and conforming on their face to the requirements of this Agreement and the Basic Documents;
(ii) the Owner Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or cause to employee, unless it shall be discharged) all proved that the Owner Trustee was grossly negligent in performing its responsibilities pursuant to duties in accordance with the terms of this Agreement and the other documents Basic Documents;
(iii) the Owner Trustee shall not be personally liable with respect to which the Trust is a party and any action taken, suffered or omitted to administer the Trust be taken in the interest of the Residual Interest Holders and the Certificateholders, subject to and good faith in accordance with the provisions direction of the Servicer under the Sale and Servicing Agreement or the Holders of the Certificates representing at least a majority of the Percentage Interest (or such larger or smaller percentage of the Percentage Interest as may be required by any other provision of this Agreement or the other Basic Documents); and
(iv) in no event shall the Owner Trustee be personally liable for (x) special, consequential, indirect or punitive damages, however styled, including, without limitation, lost profits, (y) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Trust’s securities or assets or (z) any losses due to forces beyond the reasonable control of the Owner Trustee, including without limitation, strikes, work stoppages, acts of war or terrorism, insurrection, revolution, pandemics, nuclear or natural catastrophes or acts of God, quarantines, shelter-in-place orders and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
(f) The Owner 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.
(g) All information obtained by the Owner Trustee regarding the Obligors and the Receivables contained in the Trust, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Owner Trustee in confidence and shall not be disclosed to any other documents Person, unless such disclosure is required by any applicable law or regulation or pursuant to which the Trust is subpoena.
(h) The Owner Trustee shall provide prompt notice to Toyota Motor Credit Corporation and Toyota Auto Finance Receivables LLC (each, a party. Without limiting the foregoing“TMCC Party,” and together, the “TMCC Parties”), in the form of Exhibit D, of all demands received by a Responsible Officer in the [Corporate Trust Administration Department] of the Owner Trustee for the repurchase of any Receivable for breach of the representations and warranties concerning such Receivable (each, a “Demand”). If any such Demand is made in non-written form, the Owner Trustee shall request that such Demand be put into writing and delivered to it; provided, however, that the Owner Trustee shall notify the TMCC Parties regardless of whether any such Demand is made in writing. The obligations of the Owner Trustee under the first two sentences of this Section 6.03(h) to notify the TMCC Parties of any such Demand made in non-written form shall not be applicable during such time as the interpretations of the requirements of the Repurchase Rules and Regulations (as defined below) explicitly require reporting by the TMCC Parties solely with respect to Demands in written form. The Owner Trustee shall, upon written direction request of either TMCC Party, provide notification to the TMCC Parties with respect to any actions taken by the Owner Trustee with respect to any such Demand received by the Owner Trustee in respect of any Receivables, such notifications to be provided by the Owner Trustee promptly after receipt by the Owner Trustee of such request but not more than once each calendar month or such other time frame as may be mutually agreed to by the Owner Trustee and the applicable TMCC Party. The Owner Trustee and the Depositor acknowledge and agree that the purpose of this Section 6.03(h) is to facilitate compliance by the TMCC Parties with Rule 15Ga-1 under the Securities Exchange Act of 1934, as amended, and Items 1104(e) and 1121(c) of Regulation AB (the “Repurchase Rules and Regulations”). The Owner Trustee shall cooperate with reasonable written requests received by it from the TMCC Parties to deliver any and all records and any other information in the possession of the Instructing Party and on behalf Owner Trustee that is necessary in the good faith determination of the Trust, file TMCC Parties to permit the TMCC Parties to comply with the provisions of Repurchase Rules and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the TransferorRegulations. Notwithstanding the foregoingSubject to its duties explicitly set forth herein, the Owner Trustee shall not have any responsibility or liability in connection with the compliance of either TMCC Party or a securitizer with the Securities Exchange Act of 1934, as amended, or Regulation AB or any filing required to be deemed to have discharged its duties and responsibilities hereunder and made by a TMCC Party or a securitizer under the Securities Exchange Act of 1934, as amended, or Regulation AB.
(i) The Owner Trustee hereby agrees to cooperate with the Administrator in connection with any regulatory, administrative, governmental, investigative or other documents to which the Trust is a party proceeding or inquiry relating in any way to the extent Trust, its assets or the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty conduct of its business. In connection therewith, the Owner Trustee hereunder further agrees to comply with any reasonable request made by the Administrator for the delivery of information or under any other document documents in the Owner Trustee’s actual possession. It shall be the Administrator’s duty and responsibility, and not the Owner Trustee’s duty or responsibility, to which cause the Trust is a partyto comply with, and respond to, defend, participate in or otherwise act in connection with any regulatory, administrative, governmental, investigative or other proceeding, obligation or inquiry relating in any way to the Trust, its assets or the conduct of its business.
(j) For the avoidance of doubt, the Owner Trustee shall not be held liable for have any duty or obligation to monitor or enforce the default Sponsor’s compliance with any applicable risk retention rules or failure of the Administrator to carry out its obligations under the Administration Agreementregulations. Except as expressly provided in the documents to which the Trust is a party, the The Owner Trustee shall have no obligation not be charged with knowledge of any such rules or regulations, and it shall not be liable to administer, service any Noteholder or collect the Receivables any other Person for any violation of any such rules or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivablesregulations.
Appears in 1 contract
Samples: Trust Agreement (Toyota Auto Finance Receivables LLC)
Duties of Owner Trustee. (a) Subject to Article IV and in accordance with the terms of the Basic Documents, the Certificateholder may by written instruction direct the Owner Trustee in the management of the Trust. Such direction may be exercised at any time by written instruction of the Certificateholder pursuant to Article IV.
(b) The Owner Trustee accepts the trusts xxxxxx created and agrees to perform its duties hereunder with respect to such trusts but only upon the terms of this Agreement.
(c) The Owner Trustee, both prior upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to and after the occurrence Owner Trustee that shall be specifically required to be furnished pursuant to any provision of an Event of Servicer Defaultthis Agreement, shall undertake examine them to perform determine whether they conform on their face to the requirements of this Agreement.
(d) No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own negligent action, its own negligent failure to act, its own bad faith or its own willful misfeasance; PROVIDED, HOWEVER, that:
(i) the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement and the Basic Documents, the Owner Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured Agreement and the Basic Documents, no implied covenants or obligations shall be read into this Agreement against the Owner Trustee has received notice of such Event of Servicer DefaultTrustee, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty permissive right of the Owner Trustee to discharge do things enumerated in this Agreement and the Basic Documents shall not be construed as a duty and, in the absence of bad faith on the part of the Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Owner Trustee and conforming on their face to the requirements of this Agreement and the Basic Documents;
(or cause to ii) the Owner Trustee shall not be discharged) all personally liable for an error of judgment made in good faith by a Trust Officer, unless it shall be proved that the Owner Trustee was negligent in performing its responsibilities pursuant to duties in accordance with the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party and on behalf of the Trust, file and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and Basic Documents; and
(iii) the Owner Trustee shall not be held personally liable for with respect to any action taken, suffered or omitted to be taken in good faith in accordance with the default or failure direction of the Administrator Certificateholder.
(e) The Owner Trustee shall not be required to carry out expend or risk its obligations under the Administration Agreement. Except as expressly provided own funds or otherwise incur financial liability in the documents 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 which it.
(f) All information obtained by the Owner Trustee regarding the Obligors and the Receivables contained in the Trust, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Owner Trustee in confidence and shall not be disclosed to any other Person, unless such disclosure is required by any applicable law or regulation or pursuant to subpoena.
(g) Pursuant to Section 3.02 of the Sale and Servicing Agreement, in the event that the Owner Trustee discovers that a representation or warranty with respect to a Receivable was incorrect as of the time specified with respect to such representation and warranty and such incorrectness materially and adversely affects the interests of the Trust is a partyin such Receivable, the Owner Trustee shall have no obligation give prompt written notice to administerthe Servicer, service or collect the Receivables or Depositor and the Indenture Trustee of such incorrectness. Pursuant to maintain, monitor or otherwise supervise the administration, servicing or collection Section 4.08 of the ReceivablesSale and Servicing Agreement, in the event that the Owner Trustee discovers that any covenant of the Servicer set forth in Section 4.06 or 4.07 of the Sale and Servicing Agreement has been breached by the Servicer and such incorrectness materially and adversely affects the interests of the Trust in any Receivable, the Owner Trustee shall give prompt written notice to the Servicer, the Depositor and the Indenture Trustee of such breach.
Appears in 1 contract
Duties of Owner Trustee. The Owner Trustee, both prior to and after the occurrence of an Event of Servicer Default, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and and, in the case of an Event of Servicer Default described in clause (i) of Section 14.01, the Owner Trustee has received notice of such Event of Servicer Default, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the CertificateholdersCertificateholder, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party Certificateholder and on behalf of the Trust, file and prove any claim or claims that may exist on behalf of the Trust against the Transferor Seller in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the TransferorSeller. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Trust or the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided in the documents to which the Trust is a party, the Owner Trustee shall have no obligation to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivables. The Owner Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Owner Trustee that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own negligent action, its own negligent failure to act, or its own bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Servicer Default, and after the curing of all such Events of Servicer Default that may have occurred, the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as shall be specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Owner Trustee and, in the absence of bad faith on the part of the Owner Trustee, or manifest error, the Owner Trustee may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Owner Trustee and conforming to the requirements of this Agreement;
(ii) The Owner Trustee shall not be liable for an error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Owner Trustee shall have been negligent in ascertaining the pertinent facts;
(iii) The Owner Trustee shall not be liable with respect to any action taken, suffered, or omitted to be taken in good faith in accordance with this Agreement or at the direction of the Certificateholder relating to the time, method, and place of conducting any proceeding for any remedy available to the Owner Trustee, or exercising any trust or power conferred upon the Owner Trustee, under this Agreement;
(iv) The Owner Trustee shall not be charged with knowledge of any failure by the Servicer to comply with the obligations of the Servicer referred to in clauses (i) or (ii) of Section 14.01, or of any failure by the Seller to comply with the obligations of the Seller referred to in clause (ii) of Section 14.01, unless a Responsible Officer of the Owner Trustee receives written notice of such failure (it being understood that knowledge of the Servicer or the Servicer as custodian, in its capacity as agent for the Owner Trustee, is not attributable to the Owner Trustee) from the Servicer or the Seller, as the case may be; and
(v) Without limiting the generality of this Section or Section 15.04, the Owner Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to therein or any financing statement evidencing a security interest in the Receivables or the Financed Vehicles, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance of the Financed Vehicles or Obligors or to effect or maintain any such insurance, (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed, or levied against, any part of the Trust, (D) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Trust pursuant to this Agreement believed by the Owner Trustee to be genuine and to have been signed or presented by the proper party or parties, or (E) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Seller's or the Servicer's representations, warranties or covenants or the Servicer's duties and obligations as Servicer and as custodian of the Receivable Files under this Agreement. The Owner 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 hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Owner Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Owner Trustee shall be the successor to, and be vested with the rights, duties, powers, and privileges of, the Servicer in accordance with the terms of this Agreement. Except for actions expressly authorized by this Agreement, the Owner Trustee shall take no action reasonably likely to impair the security interests created or existing under any Receivable or to impair the value of any Receivable.
Appears in 1 contract
Samples: Trust and Servicing Agreement (Uacsc 1999-B Owner Tr Auto Rec Bk Notes)
Duties of Owner Trustee. The Owner Trustee, both prior to and after the occurrence of an Event of Servicer Default, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and and, in the case of an Event of Servicer Default described in clause (i) of Section 13.01, the Owner Trustee has received notice of such Event of Servicer Default, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the CertificateholdersCertificateholder, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party Certificateholder and on behalf of the Trust, file and prove any claim or claims that may exist on behalf of the Trust against the Transferor Seller in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the TransferorSeller. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Trust or the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided in the documents to which the Trust is a party, the Owner Trustee shall have no obligation to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivables. The Owner Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Owner Trustee that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own negligent action, its own negligent failure to act, or its own bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Servicer Default, and after the curing of all such Events of Servicer Default that may have occurred, the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as shall be specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Owner Trustee and, in the absence of bad faith on the part of the Owner Trustee, or manifest error, the Owner Trustee may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Owner Trustee and conforming to the requirements of this Agreement;
(ii) The Owner Trustee shall not be liable for an error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Owner Trustee shall have been negligent in ascertaining the pertinent facts;
(iii) The Owner Trustee shall not be liable with respect to any action taken, suffered, or omitted to be taken in good faith in accordance with this Agreement or at the direction of the Certificateholder relating to the time, method, and place of conducting any proceeding for any remedy available to the Owner Trustee, or exercising any trust or power conferred upon the Owner Trustee, under this Agreement;
(iv) The Owner Trustee shall not be charged with knowledge of any failure by the Servicer to comply with the obligations of the Servicer referred to in clauses (i) or (ii) of Section 13.01, or of any failure by the Seller to comply with the obligations of the Seller referred to in clause (ii) of Section 13.01, unless a Responsible Officer of the Owner Trustee receives written notice of such failure (it being understood that knowledge of the Servicer or the Servicer as custodian, in its capacity as agent for the Owner Trustee, is not attributable to the Owner Trustee) from the Servicer or the Seller, as the case may be; and
(v) Without limiting the generality of this Section or Section 14.04, the Owner Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to therein or any financing statement (or continuation statement) evidencing a security interest in the Receivables or the Financed Vehicles, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance of the Financed Vehicles or Obligors or to effect or maintain any such insurance, (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed, or levied against, any part of the Trust, (D) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Trust pursuant to this Agreement believed by the Owner Trustee to be genuine and to have been signed or presented by the proper party or parties, or (E) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Seller's or the Servicer's representations, warranties or covenants or the Servicer's duties and obligations as Servicer and as custodian of the Receivable Files under this Agreement. The Owner 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 hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Owner Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Owner Trustee shall be the successor to, and be vested with the rights, duties, powers, and privileges of, the Servicer in accordance with the terms of this Agreement. Except for actions expressly authorized by this Agreement, the Owner Trustee shall take no action reasonably likely to impair the security interests created or existing under any Receivable or to impair the value of any Receivable.
Appears in 1 contract
Samples: Trust and Servicing Agreement (United Fidelity Finance LLC)
Duties of Owner Trustee. (a) Subject to Article IV and in accordance with the terms of the Basic Documents, the Servicer may direct the Owner Trustee pursuant to Sections 4.01 and 4.04 of the Sale and Servicing Agreement and the Certificateholders may by written instruction direct the Owner Trustee in the management of the Trust. Such direction may be exercised at any time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall take such action or refrain from taking such action under this Agreement as it may be directed in writing by the Certificateholders from time to time; provided, however, that the Owner Trustee shall not be required to take or refrain from taking any such action if it shall have determined, or shall have been advised by counsel, that such performance is likely to involve the Owner Trustee in personal liability or is contrary to the terms of this Agreement or of any document contemplated hereby to which the Trust is a party or is otherwise contrary to law. If at any time the Owner Trustee determines that it requires or desires guidance regarding the application of any provision of this Agreement or any other document, then the Owner Trustee may deliver a notice to the Certificateholders requesting written instructions as to the course of action desired by the Certificateholders and such instructions shall constitute full and complete authorization and protection for actions taken by the Owner Trustee in reliance thereon. If the Owner Trustee does not receive such instructions within five (5) Business Days after it has delivered to the Certificateholders such notice requesting instructions, or such shorter period of time as may be set forth in such notice, it shall refrain from taking any action with respect to the matters described in such notice and will have no liability for such inaction. Each instruction delivered by the Certificateholders to the Owner Trustee shall certify to the Owner Trustee that any actions to be taken pursuant to such instruction comply with the terms of this Agreement and the Owner Trustee may rely on such certification and instruction without inquiry except to the extent it has actual knowledge to the contrary.
(c) The Owner Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with respect to such trusts but only upon the terms of this Agreement.
(d) The Owner Trustee, both prior upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to and after the occurrence of an Event of Servicer DefaultOwner Trustee that shall be specifically required to be furnished pursuant to Sections 3.03(c) or (f), shall undertake examine them to perform determine whether they conform on their face to the requirements of Sections 3.03(c) or (f), as applicable, of this Agreement.
(e) The Owner Trustee shall not be liable hereunder for other than, and no provision of this Agreement shall be construed to relieve the Owner Trustee from liability for, its own grossly negligent action, its own grossly negligent failure to act, its own bad faith or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. If an Event of Servicer Default , no implied covenants or obligations shall have occurred and shall not have been cured and be read into this Agreement against the Owner Trustee has received notice of such Event of Servicer DefaultTrustee, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty permissive right of the Owner Trustee to discharge do things enumerated in this Agreement and the Basic Documents shall not be construed as a duty and, in the absence of bad faith on the part of the Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Owner Trustee and conforming on their face to the requirements of this Agreement and the Basic Documents;
(ii) the Owner Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or cause to employee, unless it shall be discharged) all proved that the Owner Trustee was grossly negligent in performing its responsibilities pursuant to duties in accordance with the terms of this Agreement and the other documents Basic Documents;
(iii) the Owner Trustee shall not be personally liable with respect to which the Trust is a party and any action taken, suffered or omitted to administer the Trust be taken in the interest of the Residual Interest Holders and the Certificateholders, subject to and good faith in accordance with the provisions direction of the Servicer under the Sale and Servicing Agreement or the Holders of the Certificates representing at least a majority of the Percentage Interest (or such larger or smaller percentage of the Percentage Interest as may be required by any other provision of this Agreement or the other Basic Documents); and
(iv) in no event shall the Owner Trustee be personally liable for (x) special, consequential, indirect or punitive damages, however styled, including, without limitation, lost profits, (y) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Trust’s securities or assets or (z) any losses due to forces beyond the reasonable control of the Owner Trustee, including without limitation, strikes, work stoppages, acts of war or terrorism, insurrection, revolution, pandemics, nuclear or natural catastrophes or acts of God, quarantines, shelter-in-place order and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
(f) The Owner 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.
(g) All information obtained by the Owner Trustee regarding the Obligors and the Receivables contained in the Trust, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Owner Trustee in confidence and shall not be disclosed to any other documents Person, unless such disclosure is required by any applicable law or regulation or pursuant to which the Trust is subpoena.
(h) The Owner Trustee shall provide prompt notice to Toyota Motor Credit Corporation and Toyota Auto Finance Receivables LLC (each, a party. Without limiting the foregoing“TMCC Party,” and together, the “TMCC Parties”), in the form of Exhibit D, of all demands received by a Responsible Officer in the Corporate Trust Administration Department of the Owner Trustee for the repurchase of any Receivable for breach of the representations and warranties concerning such Receivable (each, a “Demand”). If any such Demand is made in non-written form, the Owner Trustee shall request that such Demand be put into writing and delivered to it; provided, however, that the Owner Trustee shall notify the TMCC Parties regardless of whether any such Demand is made in writing. The obligations of the Owner Trustee under the first two sentences of this Section 6.03(h) to notify the TMCC Parties of any such Demand made in non-written form shall not be applicable during such time as the interpretations of the requirements of the Repurchase Rules and Regulations (as defined below) explicitly require reporting by TMCC Parties solely with respect to Demands in written form. The Owner Trustee shall, upon written direction request of either TMCC Party, provide notification to the TMCC Parties with respect to any actions taken by the Owner Trustee with respect to any such Demand received by the Owner Trustee in respect of any Receivables, such notifications to be provided by the Owner Trustee promptly after receipt by the Owner Trustee of such request but not more than once each calendar month or such other time frame as may be mutually agreed to by the Owner Trustee and the applicable TMCC Party. The Owner Trustee and the Depositor acknowledge and agree that the purpose of this Section 6.03(h) is to facilitate compliance by the TMCC Parties with Rule 15Ga-1 under the Securities Exchange Act of 1934, as amended, and Items 1104(e) and 1121(c) of Regulation AB (the “Repurchase Rules and Regulations”). The Owner Trustee shall cooperate with reasonable written requests received by it from the TMCC Parties to deliver any and all records and any other information in the possession of the Instructing Party and on behalf Owner Trustee that is necessary in the good faith determination of the Trust, file TMCC Parties to permit the TMCC Parties to comply with the provisions of Repurchase Rules and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the TransferorRegulations. Notwithstanding the foregoingSubject to its duties explicitly set forth herein, the Owner Trustee shall not have any responsibility or liability in connection with the compliance of either TMCC Party or a securitizer with the Securities Exchange Act of 1934, as amended, or Regulation AB or any filing required to be deemed to have discharged its duties and responsibilities hereunder and made by a TMCC Party or a securitizer under the Securities Exchange Act of 1934, as amended, or Regulation AB.
(i) The Owner Trustee hereby agrees to cooperate with the Administrator in connection with any regulatory, administrative, governmental, investigative or other documents to which the Trust is a party proceeding or inquiry relating in any way to the extent Trust, its assets or the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty conduct of its business. In connection therewith, the Owner Trustee hereunder further agrees to comply with any reasonable request made by the Administrator for the delivery of information or under any other document documents in the Owner Trustee’s actual possession. It shall be the Administrator’s duty and responsibility, and not the Owner Trustee’s duty or responsibility, to which cause the Trust is a partyto respond to, and defend, participate in or otherwise act in connection with any regulatory, administrative, governmental, investigative or other proceeding or inquiry relating in any way to the Trust, its assets or the conduct of its business.
(j) For the avoidance of doubt, the Owner Trustee shall not be held liable for have any duty or obligation to monitor or enforce the default Sponsor’s compliance with any applicable risk retention rules or failure of the Administrator to carry out its obligations under the Administration Agreementregulations. Except as expressly provided in the documents to which the Trust is a party, the The Owner Trustee shall have no obligation not be charged with knowledge of any such rules or regulations, and it shall not be liable to administer, service any Noteholder or collect the Receivables any other Person for any violation of any such rules or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivablesregulations.
Appears in 1 contract
Samples: Trust Agreement (Toyota Auto Receivables 2021-a Owner Trust)
Duties of Owner Trustee. (a) Subject to Article IV and in accordance with the terms of the Basic Documents, the Certificateholders may by written instruction direct the Owner Trustee in the management of the Trust. Such direction may be exercised at any time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall take such action or refrain from taking such action under this Agreement as it may be directed in writing by the Certificateholders from time to time; provided, however, that the Owner Trustee shall not be required to take or refrain from taking any such action if it shall have determined, or shall have been advised by counsel, that such performance is likely to involve the Owner Trustee in personal liability or is contrary to the terms of this Agreement or of any document contemplated hereby to which the Trust is a party or is otherwise contrary to law. If at any time the Owner Trustee determines that it requires or desires guidance regarding the application of any provision of this Agreement or any other document, then the Owner Trustee may deliver a notice to the Certificateholders requesting written instructions as to the course of action desired by the Certificateholders and such instructions shall constitute full and complete authorization and protection for actions taken by the Owner Trustee in reliance thereon. If the Owner Trustee does not receive such instructions within five (5) Business Days after it has delivered to the Certificateholders such notice requesting instructions, or such shorter period of time as may be set forth in such notice, it shall refrain from taking any action with respect to the matters described in such notice. Each instruction delivered by the Certificateholders to the Owner Trustee shall certify to the Owner Trustee that any actions to be taken pursuant to such instruction comply with the terms of this Agreement and the Owner Trustee may rely on such certification and instruction without inquiry except to the extent it has actual knowledge to the contrary.
(c) The Owner Trustee accepts the trusts hxxxxx created and agrees to perform its duties hereunder with respect to such trusts but only upon the terms of this Agreement.
(d) The Owner Trustee, both prior upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to and after the occurrence Owner Trustee that shall be specifically required to be furnished pursuant to any provision of an Event of Servicer Defaultthis Agreement, shall undertake examine them to perform determine whether they conform on their face to the requirements of this Agreement.
(e) No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act, its own bad faith or its own willful misfeasance; provided, however, that:
(i) the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. If an Event of Servicer Default , no implied covenants or obligations shall have occurred and shall not have been cured and be read into this Agreement against the Owner Trustee has received notice of such Event of Servicer DefaultTrustee, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty permissive right of the Owner Trustee to discharge do things enumerated in this Agreement and the Basic Documents shall not be construed as a duty and, in the absence of bad faith on the part of the Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Owner Trustee and conforming on their face to the requirements of this Agreement and the Basic Documents;
(or cause to ii) the Owner Trustee shall not be discharged) all personally liable for an error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Owner Trustee was grossly negligent in performing its responsibilities pursuant to duties in accordance with the terms of this Agreement and the other documents Basic Documents;
(iii) the Owner Trustee shall not be personally liable with respect to which the Trust is a party and any action taken, suffered or omitted to administer the Trust be taken in the interest of the Residual Interest Holders and the Certificateholders, subject to and good faith in accordance with the provisions direction of the Holders of the Certificates representing at least a majority of the Percentage Interest (or such larger or smaller percentage of the Percentage Interest as may be required by any other provision of this Agreement or the other Basic Documents); and
(iv) in no event shall the Owner Trustee be personally liable for (x) special consequential or punitive damages, however styled, including, without limitation, lost profits, (y) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Trust’s securities or assets or (z) any losses due to forces beyond the reasonable control of the Owner Trustee, including without limitation, strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
(f) The Owner 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.
(g) All information obtained by the Owner Trustee regarding the Obligors and the Receivables contained in the Trust, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Owner Trustee in confidence and shall not be disclosed to any other documents Person, unless such disclosure is required by any applicable law or regulation or pursuant to which the Trust is subpoena.
(h) The Owner Trustee shall provide prompt notice to Toyota Motor Credit Corporation and Toyota Auto Finance Receivables LLC (each, a party. Without limiting the foregoing“TMCC Party,” and together, the “TMCC Parties”) of all demands received by an officer in the Corporate Trust Services Department of the Owner Trustee for the repurchase or replacement of any Receivable for breach of the representations and warranties concerning such Receivable (each, a “Demand”). If any such Demand is made in non-written form, the Owner Trustee shall request that such Demand be put into writing and delivered to it; provided, however, that the Owner Trustee shall notify the TMCC Parties regardless of whether any such Demand is made in writing. The obligations of the Owner Trustee under the first two sentences of this Section 6.03(h) to notify the TMCC Parties of any such Demand made in non-written form shall not be applicable during such time as the interpretations of the requirements of the Repurchase Rules and Regulations (as defined below) explicitly require reporting by TMCC Parties solely with respect to Demands in written form. The Owner Trustee shall, upon written direction request of either TMCC Party, provide notification to the TMCC Parties with respect to any actions taken by the Owner Trustee with respect to any such Demand received by the Owner Trustee in respect of any Receivables, such notifications to be provided by the Owner Trustee promptly after receipt by the Owner Trustee of such request but not more than once each calendar month or such other time frame as may be mutually agreed to by the Owner Trustee and the applicable TMCC Party. The Owner Trustee and the Depositor acknowledge and agree that the purpose of this Section 6.03(h) is to facilitate compliance by the TMCC Parties with Rule 15Ga-1 under the Securities Exchange Act of 1934, as amended, and Items 1104(e) and 1121(c) of Regulation AB (the “Repurchase Rules and Regulations”). The Owner Trustee shall cooperate with reasonable written requests received by it from the TMCC Parties to deliver any and all records and any other information in the possession of the Instructing Party and on behalf Owner Trustee that is necessary in the good faith determination of the Trust, file TMCC Parties to permit the TMCC Parties to comply with the provisions of Repurchase Rules and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the TransferorRegulations. Notwithstanding the foregoingSubject to its duties explicitly set forth herein, the Owner Trustee shall not have any responsibility or liability in connection with the compliance of either TMCC Party or a securitizer with the Securities Exchange Act of 1934, as amended, or Regulation AB or any filing required to be deemed to have discharged its duties and responsibilities hereunder and made by a TMCC Party or a securitizer under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act Securities Exchange Act of 1934, as amended, or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided in the documents to which the Trust is a party, the Owner Trustee shall have no obligation to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the ReceivablesRegulation AB.
Appears in 1 contract
Samples: Trust Agreement (Toyota Auto Receivables 2013-a Owner Trust)
Duties of Owner Trustee. (a) Subject to Article IV and in accordance with the terms of the Basic Documents, the Servicer may direct the Owner Trustee pursuant to Sections 4.01 and 4.04 of the Sale and Servicing Agreement and the Certificateholders may by written instruction direct the Owner Trustee in the management of the Trust. Such direction may be exercised at any time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall take such action or refrain from taking such action under this Agreement as it may be directed in writing by the Certificateholders from time to time; provided, however, that the Owner Trustee shall not be required to take or refrain from taking any such action if it shall have determined, or shall have been advised by counsel, that such performance is likely to involve the Owner Trustee in personal liability or is contrary to the terms of this Agreement or of any document contemplated hereby to which the Trust is a party or is otherwise contrary to law. If at any time the Owner Trustee determines that it requires or desires guidance regarding the application of any provision of this Agreement or any other document, then the Owner Trustee may deliver a notice to the Certificateholders requesting written instructions as to the course of action desired by the Certificateholders and such instructions shall constitute full and complete authorization and protection for actions taken by the Owner Trustee in reliance thereon. If the Owner Trustee does not receive such instructions within five (5) Business Days after it has delivered to the Certificateholders such notice requesting instructions, or such shorter period of time as may be set forth in such notice, it shall refrain from taking any action with respect to the matters described in such notice and will have no liability for such inaction. Each instruction delivered by the Certificateholders to the Owner Trustee shall certify to the Owner Trustee that any actions to be taken pursuant to such instruction comply with the terms of this Agreement and the Owner Trustee may rely on such certification and instruction without inquiry except to the extent it has actual knowledge to the contrary.
(c) The Owner Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with respect to such trusts but only upon the terms of this Agreement.
(d) The Owner Trustee, both prior upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to and after the occurrence of an Event of Servicer DefaultOwner Trustee that shall be specifically required to be furnished pursuant to Sections 3.03(c) or (f), shall undertake examine them to perform determine whether they conform on their face to the requirements of Sections 3.03(c) or (f), as applicable, of this Agreement.
(e) The Owner Trustee shall not be liable hereunder for other than, and no provision of this Agreement shall be construed to relieve the Owner Trustee from liability for, its own grossly negligent action, its own grossly negligent failure to act, its own bad faith or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. If an Event of Servicer Default , no implied covenants or obligations shall have occurred and shall not have been cured and be read into this Agreement against the Owner Trustee has received notice of such Event of Servicer DefaultTrustee, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty permissive right of the Owner Trustee to discharge do things enumerated in this Agreement and the Basic Documents shall not be construed as a duty and, in the absence of bad faith on the part of the Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Owner Trustee and conforming on their face to the requirements of this Agreement and the Basic Documents;
(ii) the Owner Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or cause to employee, unless it shall be discharged) all proved that the Owner Trustee was grossly negligent in performing its responsibilities pursuant to duties in accordance with the terms of this Agreement and the other documents Basic Documents;
(iii) the Owner Trustee shall not be personally liable with respect to which the Trust is a party and any action taken, suffered or omitted to administer the Trust be taken in the interest of the Residual Interest Holders and the Certificateholders, subject to and good faith in accordance with the provisions direction of the Servicer under the Sale and Servicing Agreement or the Holders of the Certificates representing at least a majority of the Percentage Interest (or such larger or smaller percentage of the Percentage Interest as may be required by any other provision of this Agreement or the other Basic Documents); and
(iv) in no event shall the Owner Trustee be personally liable for (x) special, consequential, indirect or punitive damages, however styled, including, without limitation, lost profits, (y) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Trust’s securities or assets or (z) any losses due to forces beyond the reasonable control of the Owner Trustee, including without limitation, strikes, work stoppages, acts of war or terrorism, insurrection, revolution, pandemics, nuclear or natural catastrophes or acts of God, quarantines, shelter-in-place orders and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
(f) The Owner 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.
(g) All information obtained by the Owner Trustee regarding the Obligors and the Receivables contained in the Trust, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Owner Trustee in confidence and shall not be disclosed to any other documents Person, unless such disclosure is required by any applicable law or regulation or pursuant to which the Trust is subpoena.
(h) The Owner Trustee shall provide prompt notice to Toyota Motor Credit Corporation and Toyota Auto Finance Receivables LLC (each, a party. Without limiting the foregoing“TMCC Party,” and together, the “TMCC Parties”), in the form of Exhibit D, of all demands received by a Responsible Officer in the [Corporate Trust Administration Department] of the Owner Trustee for the repurchase of any Receivable for breach of the representations and warranties concerning such Receivable (each, a “Demand”). If any such Demand is made in non-written form, the Owner Trustee shall request that such Demand be put into writing and delivered to it; provided, however, that the Owner Trustee shall notify the TMCC Parties regardless of whether any such Demand is made in writing. The obligations of the Owner Trustee under the first two sentences of this Section 6.03(h) to notify the TMCC Parties of any such Demand made in non-written form shall not be applicable during such time as the interpretations of the requirements of the Repurchase Rules and Regulations (as defined below) explicitly require reporting by the TMCC Parties solely with respect to Demands in written form. The Owner Trustee shall, upon written direction request of either TMCC Party, provide notification to the TMCC Parties with respect to any actions taken by the Owner Trustee with respect to any such Demand received by the Owner Trustee in respect of any Receivables, such notifications to be provided by the Owner Trustee promptly after receipt by the Owner Trustee of such request but not more than once each calendar month or such other time frame as may be mutually agreed to by the Owner Trustee and the applicable TMCC Party. The Owner Trustee and the Depositor acknowledge and agree that the purpose of this Section 6.03(h) is to facilitate compliance by the TMCC Parties with Rule 15Ga-1 under the Securities Exchange Act of 1934, as amended, and Items 1104(e) and 1121(c) of Regulation AB (the “Repurchase Rules and Regulations”). The Owner Trustee shall cooperate with reasonable written requests received by it from the TMCC Parties to deliver any and all records and any other information in the possession of the Instructing Party and on behalf Owner Trustee that is necessary in the good faith determination of the Trust, file TMCC Parties to permit the TMCC Parties to comply with the provisions of Repurchase Rules and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the TransferorRegulations. Notwithstanding the foregoingSubject to its duties explicitly set forth herein, the Owner Trustee shall not have any responsibility or liability in connection with the compliance of either TMCC Party or a securitizer with the Securities Exchange Act of 1934, as amended, or Regulation AB or any filing required to be deemed to have discharged its duties and responsibilities hereunder and made by a TMCC Party or a securitizer under the Securities Exchange Act of 1934, as amended, or Regulation AB.
(i) The Owner Trustee hereby agrees to cooperate with the Administrator in connection with any regulatory, administrative, governmental, investigative or other documents to which the Trust is a party proceeding or inquiry relating in any way to the extent Trust, its assets or the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty conduct of its business. In connection therewith, the Owner Trustee hereunder further agrees to comply with any reasonable request made by the Administrator for the delivery of information or under any other document documents in the Owner Trustee’s actual possession. It shall be the Administrator’s duty and responsibility, and not the Owner Trustee’s duty or responsibility, to which cause the Trust is a partyto respond to, and defend, participate in or otherwise act in connection with any regulatory, administrative, governmental, investigative or other proceeding or inquiry relating in any way to the Trust, its assets or the conduct of its business.
(j) For the avoidance of doubt, the Owner Trustee shall not be held liable for have any duty or obligation to monitor or enforce the default Sponsor’s compliance with any applicable risk retention rules or failure of the Administrator to carry out its obligations under the Administration Agreementregulations. Except as expressly provided in the documents to which the Trust is a party, the The Owner Trustee shall have no obligation not be charged with knowledge of any such rules or regulations, and it shall not be liable to administer, service any Noteholder or collect the Receivables any other Person for any violation of any such rules or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivablesregulations.
Appears in 1 contract
Samples: Trust Agreement (Toyota Auto Finance Receivables LLC)
Duties of Owner Trustee. (a) Subject to Article IV and in accordance with the terms of the Basic Documents, the Certificateholders may by written instruction direct the Owner Trustee in the management of the Trust. Such direction may be exercised at any time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall take such action or refrain from taking such action under this Agreement as it may be directed in writing by the Certificateholders from time to time; provided, however, that the Owner Trustee shall not be required to take or refrain from taking any such action if it shall have determined, or shall have been advised by counsel, that such performance is likely to involve the Owner Trustee in personal liability or is contrary to the terms of this Agreement or of any document contemplated hereby to which the Trust is a party or is otherwise contrary to law. If at any time the Owner Trustee determines that it requires or desires guidance regarding the application of any provision of this Agreement or any other document, then the Owner Trustee may deliver a notice to the Certificateholders requesting written instructions as to the course of action desired by the Certificateholders and such instructions shall constitute full and complete authorization and protection for actions taken by the Owner Trustee in reliance thereon. If the Owner Trustee does not receive such instructions within five (5) Business Days after it has delivered to the Certificateholders such notice requesting instructions, or such shorter period of time as may be set forth in such notice, it shall refrain from taking any action with respect to the matters described in such notice. Each instruction delivered by the Certificateholders to the Owner Trustee shall certify to the Owner Trustee that any actions to be taken pursuant to such instruction comply with the terms of this Agreement and the Owner Trustee may rely on such certification and instruction without inquiry except to the extent it has actual knowledge to the contrary.
(c) The Owner Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with respect to such trusts but only upon the terms of this Agreement.
(d) The Owner Trustee, both prior upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to and after the occurrence Owner Trustee that shall be specifically required to be furnished pursuant to any provision of an Event of Servicer Defaultthis Agreement, shall undertake examine them to perform determine whether they conform on their face to the requirements of this Agreement.
(e) No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act, its own bad faith or its own willful misfeasance; provided, however, that:
(i) the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. If an Event of Servicer Default , no implied covenants or obligations shall have occurred and shall not have been cured and be read into this Agreement against the Owner Trustee has received notice of such Event of Servicer DefaultTrustee, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty permissive right of the Owner Trustee to discharge do things enumerated in this Agreement and the Basic Documents shall not be construed as a duty and, in the absence of bad faith on the part of the Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Owner Trustee and conforming on their face to the requirements of this Agreement and the Basic Documents;
(or cause to ii) the Owner Trustee shall not be discharged) all personally liable for an error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Owner Trustee was grossly negligent in performing its responsibilities pursuant to duties in accordance with the terms of this Agreement and the other documents Basic Documents;
(iii) the Owner Trustee shall not be personally liable with respect to which the Trust is a party and any action taken, suffered or omitted to administer the Trust be taken in the interest of the Residual Interest Holders and the Certificateholders, subject to and good faith in accordance with the provisions direction of the Holders of the Certificates representing at least a majority of the Percentage Interest (or such larger or smaller percentage of the Percentage Interest as may be required by any other provision of this Agreement or the other Basic Documents); and
(iv) in no event shall the Owner Trustee be personally liable for (x) special consequential, indirect or punitive damages, however styled, including, without limitation, lost profits, (y) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Trust’s securities or assets or (z) any losses due to forces beyond the reasonable control of the Owner Trustee, including without limitation, strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
(f) The Owner 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.
(g) All information obtained by the Owner Trustee regarding the Obligors and the Receivables contained in the Trust, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Owner Trustee in confidence and shall not be disclosed to any other documents Person, unless such disclosure is required by any applicable law or regulation or pursuant to which the Trust is subpoena.
(h) The Owner Trustee shall provide prompt notice to Toyota Motor Credit Corporation and Toyota Auto Finance Receivables LLC (each, a party. Without limiting the foregoing“TMCC Party,” and together, the “TMCC Parties”) of all demands received by an officer in the Corporate Trust Services Department of the Owner Trustee for the repurchase or replacement of any Receivable for breach of the representations and warranties concerning such Receivable (each, a “Demand”). If any such Demand is made in non-written form, the Owner Trustee shall request that such Demand be put into writing and delivered to it; provided, however, that the Owner Trustee shall notify the TMCC Parties regardless of whether any such Demand is made in writing. The obligations of the Owner Trustee under the first two sentences of this Section 6.03(h) to notify the TMCC Parties of any such Demand made in non-written form shall not be applicable during such time as the interpretations of the requirements of the Repurchase Rules and Regulations (as defined below) explicitly require reporting by TMCC Parties solely with respect to Demands in written form. The Owner Trustee shall, upon written direction request of either TMCC Party, provide notification to the TMCC Parties with respect to any actions taken by the Owner Trustee with respect to any such Demand received by the Owner Trustee in respect of any Receivables, such notifications to be provided by the Owner Trustee promptly after receipt by the Owner Trustee of such request but not more than once each calendar month or such other time frame as may be mutually agreed to by the Owner Trustee and the applicable TMCC Party. The Owner Trustee and the Depositor acknowledge and agree that the purpose of this Section 6.03(h) is to facilitate compliance by the TMCC Parties with Rule 15Ga-1 under the Securities Exchange Act of 1934, as amended, and Items 1104(e) and 1121(c) of Regulation AB (the “Repurchase Rules and Regulations”). The Owner Trustee shall cooperate with reasonable written requests received by it from the TMCC Parties to deliver any and all records and any other information in the possession of the Instructing Party and on behalf Owner Trustee that is necessary in the good faith determination of the Trust, file TMCC Parties to permit the TMCC Parties to comply with the provisions of Repurchase Rules and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the TransferorRegulations. Notwithstanding the foregoingSubject to its duties explicitly set forth herein, the Owner Trustee shall not have any responsibility or liability in connection with the compliance of either TMCC Party or a securitizer with the Securities Exchange Act of 1934, as amended, or Regulation AB or any filing required to be deemed to have discharged its duties and responsibilities hereunder and made by a TMCC Party or a securitizer under the Securities Exchange Act of 1934, as amended, or Regulation AB.
(i) The Owner Trustee hereby agrees to cooperate with the Administrator in connection with any regulatory, administrative, governmental, investigative or other documents to which the Trust is a party proceeding or inquiry relating in any way to the extent Trust, its assets or the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty conduct of the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreementbusiness. Except as expressly provided in the documents to which the Trust is a partyIn connection therewith, the Owner Trustee shall have no obligation further agrees to administer, service comply with any reasonable request made by the Administrator for the delivery of information or collect documents in the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the ReceivablesOwner Trustee’s actual possession.
Appears in 1 contract
Samples: Trust Agreement (Toyota Auto Receivables 2016-a Owner Trust)
Duties of Owner Trustee. (a) The Owner Trustee, both prior to and after the occurrence of an Event of Servicer Default, shall undertake Trustee undertakes to perform such duties duties, and only such duties, as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured Agreement and the Owner Trustee has received notice of such Event of Servicer Default, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each other Basic Document Documents to which the Trust is a party and all certificatesparty, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate including the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty administration of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to the Basic Documents and in accordance with the provisions of this Agreement and the other documents Basic Documents to which the Trust is a party. Without limiting No implied covenants or obligations shall be read into this Agreement on the foregoing, part of the Owner Trustee. The Owner Trustee is authorized from time to time to take such action as the Servicer directs in writing with respect to the Basic Documents and shall, upon the written direction of the Instructing Party Servicer, execute and on behalf deliver any amendments to this Agreement or any of the Trust, file and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Basic Documents.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party Basic Documents to the extent the Administrator Servicer has agreed in the Administration Sale and Servicing Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a partyBasic Document, and the Owner Trustee shall not be held liable for the default or failure of the Administrator Servicer to carry out its obligations under the Administration Sale and Servicing Agreement. Except as expressly provided .
(c) In the absence of bad faith on its part, the Owner Trustee may conclusively rely upon certificates or opinions specifically required to be furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the documents to which truth of the Trust is a partystatements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have no obligation examined such certificates or opinions so as to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection determine compliance of the Receivablessame with the requirements of this Agreement.
(d) The Owner Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect of subsection 6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Owner Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Owner Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 4.1, 4.2 or 6.4.
(e) Subject to Sections 5.1 and 5.2, monies received by the Owner Trustee hereunder need not be segregated in any manner except to the extent required by law or the Sale and Servicing Agreement and may be deposited under such general conditions as may be prescribed by law, and the Owner Trustee shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is inconsistent with the purposes of the Trust set forth in Section 2.3 or (ii) would, to the actual knowledge of a Responsible Officer of the Owner Trustee, result in the Trust's becoming taxable as a corporation for federal income tax purposes. The Certificateholders shall not direct the Owner Trustee to take action that would violate the provisions of this Section 6.1 and any such direction shall be null and void.
Appears in 1 contract
Duties of Owner Trustee. The Owner Trustee(a) Subject to Article Four and in accordance with the terms of the Basic Documents, both prior to and after the occurrence of an Event of Servicer Default, shall undertake to perform such duties as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and Certificateholders may by written instruction direct the Owner Trustee has received notice in the management of the Issuer. Such direction may be exercised at any time by written instruction of the Certificateholders pursuant to Article Four.
(b) The Owner Trustee shall not be required to take any action hereunder or under any other Basic Document if the Owner Trustee shall have reasonably determined, or shall have been advised by counsel, that such Event action is likely to result in liability on the part of Servicer Defaultthe Owner Trustee or is contrary to the terms hereof or of any other Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement or under any other Basic Document, the Owner Trustee shall exercise promptly give notice (in such form as shall be appropriate under the circumstances) to the Certificateholders requesting instruction as to the course of the rights and powers vested in it by this Agreementaction to be adopted, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party and on behalf of the Trust, file and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed Owner Trustee acts in the Administration Agreement to perform good faith in accordance with any act or to discharge any duty written instruction of the Owner Trustee hereunder or under any other document to which the Trust is a partyCertificateholder received, and the Owner Trustee shall not be held liable for on account of such action to any Person. If the default Owner Trustee shall not have received appropriate instruction within ten days of such notice (or failure within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Agreement and the other Basic Documents, as it shall deem to be in the best interests of the Administrator Certificateholders, and shall have no liability to carry out any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the application of any provision of this Agreement or any other Basic Document or any such provision is ambiguous as to its obligations application, or is, or appears to be, in conflict with any other applicable provision, or in the event that this Agreement permits any determination by the Owner Trustee or is silent or is incomplete as to the course of action that the Owner Trustee is required to take with respect to a particular set of facts, the Owner Trustee may give notice (in such form as shall be appropriate under the Administration Agreement. Except as expressly provided circumstances) to the Certificateholders requesting instruction and, to the extent that the Owner Trustee acts or refrains from acting in the documents to which the Trust is a partygood faith in accordance with any such instruction received, the Owner Trustee shall not be liable, on account of such action or inaction, to any Person. If the Owner Trustee shall not have received appropriate instruction within ten days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Agreement or the other Basic Documents, as it shall deem to be in the best interests of the Certificateholders, and shall have no obligation liability to administer, service any Person for such action or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivablesinaction.
Appears in 1 contract
Duties of Owner Trustee. (a) Subject to Article IV and in accordance with the terms of the Basic Documents, the Certificateholders may by written instruction direct the Owner Trustee in the management of the Trust. Such direction may be exercised at any time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall take such action or refrain from taking such action under this Agreement as it may be directed in writing by the Certificateholders from time to time; provided, however, that the Owner Trustee shall not be required to take or refrain from taking any such action if it shall have determined, or shall have been advised by counsel, that such performance is likely to involve the Owner Trustee in personal liability or is contrary to the terms of this Agreement or of any document contemplated hereby to which the Trust is a party or is otherwise contrary to law. If at any time the Owner Trustee determines that it requires or desires guidance regarding the application of any provision of this Agreement or any other document, then the Owner Trustee may deliver a notice to the Certificateholders requesting written instructions as to the course of action desired by the Certificateholders and such instructions shall constitute full and complete authorization and protection for actions taken by the Owner Trustee in reliance thereon. If the Owner Trustee does not receive such instructions within five (5) Business Days after it has delivered to the Certificateholders such notice requesting instructions, or such shorter period of time as may be set forth in such notice, it shall refrain from taking any action with respect to the matters described in such notice. Each instruction delivered by the Certificateholders to the Owner Trustee shall certify to the Owner Trustee that any actions to be taken pursuant to such instruction comply with the terms of this Agreement and the Owner Trustee may rely on such certification and instruction without inquiry except to the extent it has actual knowledge to the contrary.
(c) The Owner Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with respect to such trusts but only upon the terms of this Agreement.
(d) The Owner Trustee, both prior upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to and after the occurrence Owner Trustee that shall be specifically required to be furnished pursuant to any provision of an Event of Servicer Defaultthis Agreement, shall undertake examine them to perform determine whether they conform on their face to the requirements of this Agreement.
(e) No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act, its own bad faith or its own willful misfeasance; provided, however, that:
(i) the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. If an Event of Servicer Default , no implied covenants or obligations shall have occurred and shall not have been cured and be read into this Agreement against the Owner Trustee has received notice of such Event of Servicer DefaultTrustee, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty permissive right of the Owner Trustee to discharge do things enumerated in this Agreement and the Basic Documents shall not be construed as a duty and, in the absence of bad faith on the part of the Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Owner Trustee and conforming on their face to the requirements of this Agreement and the Basic Documents;
(or cause to ii) the Owner Trustee shall not be discharged) all personally liable for an error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Owner Trustee was grossly negligent in performing its responsibilities pursuant to duties in accordance with the terms of this Agreement and the other documents Basic Documents;
(iii) the Owner Trustee shall not be personally liable with respect to which the Trust is a party and any action taken, suffered or omitted to administer the Trust be taken in the interest of the Residual Interest Holders and the Certificateholders, subject to and good faith in accordance with the provisions direction of the Holders of the Certificates representing at least a majority of the Percentage Interest (or such larger or smaller percentage of the Percentage Interest as may be required by any other provision of this Agreement or the other Basic Documents); and
(iv) in no event shall the Owner Trustee be personally liable for (x) special consequential, indirect or punitive damages, however styled, including, without limitation, lost profits, (y) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Trust’s securities or assets or (z) any losses due to forces beyond the reasonable control of the Owner Trustee, including without limitation, strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
(f) The Owner 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.
(g) All information obtained by the Owner Trustee regarding the Obligors and the Receivables contained in the Trust, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Owner Trustee in confidence and shall not be disclosed to any other documents Person, unless such disclosure is required by any applicable law or regulation or pursuant to which the Trust is subpoena.
(h) The Owner Trustee shall provide prompt notice to Toyota Motor Credit Corporation and Toyota Auto Finance Receivables LLC (each, a party. Without limiting the foregoing“TMCC Party,” and together, the “TMCC Parties”) of all demands received by an officer in the Corporate Trust Services Department of the Owner Trustee for the repurchase or replacement of any Receivable for breach of the representations and warranties concerning such Receivable (each, a “Demand”). If any such Demand is made in non-written form, the Owner Trustee shall request that such Demand be put into writing and delivered to it; provided, however, that the Owner Trustee shall notify the TMCC Parties regardless of whether any such Demand is made in writing. The obligations of the Owner Trustee under the first two sentences of this Section 6.03(h) to notify the TMCC Parties of any such Demand made in non-written form shall not be applicable during such time as the interpretations of the requirements of the Repurchase Rules and Regulations (as defined below) explicitly require reporting by TMCC Parties solely with respect to Demands in written form. The Owner Trustee shall, upon written direction request of either TMCC Party, provide notification to the TMCC Parties with respect to any actions taken by the Owner Trustee with respect to any such Demand received by the Owner Trustee in respect of any Receivables, such notifications to be provided by the Owner Trustee promptly after receipt by the Owner Trustee of such request but not more than once each calendar month or such other time frame as may be mutually agreed to by the Owner Trustee and the applicable TMCC Party. The Owner Trustee and the Depositor acknowledge and agree that the purpose of this Section 6.03(h) is to facilitate compliance by the TMCC Parties with Rule 15Ga-1 under the Securities Exchange Act of 1934, as amended, and Items 1104(e) and 1121(c) of Regulation AB (the “Repurchase Rules and Regulations”). The Owner Trustee shall cooperate with reasonable written requests received by it from the TMCC Parties to deliver any and all records and any other information in the possession of the Instructing Party and on behalf Owner Trustee that is necessary in the good faith determination of the Trust, file TMCC Parties to permit the TMCC Parties to comply with the provisions of Repurchase Rules and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the TransferorRegulations. Notwithstanding the foregoingSubject to its duties explicitly set forth herein, the Owner Trustee shall not have any responsibility or liability in connection with the compliance of either TMCC Party or a securitizer with the Securities Exchange Act of 1934, as amended, or Regulation AB or any filing required to be deemed to have discharged its duties and responsibilities hereunder and made by a TMCC Party or a securitizer under the Securities Exchange Act of 1934, as amended, or Regulation AB.
(i) The Owner Trustee hereby agrees to cooperate with the Administrator in connection with any regulatory, administrative, governmental, investigative or other documents to which the Trust is a party proceeding or inquiry relating in any way to the extent Trust, its assets or the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty conduct of its business. In connection therewith, the Owner Trustee hereunder further agrees to comply with any reasonable request made by the Administrator for the delivery of information or under any other document to which documents in the Trust is a partyOwner Trustee’s actual possession.
(j) For the avoidance of doubt, and the Owner Trustee shall not be held liable for have any duty or obligation to monitor or enforce the default Sponsor’s compliance with any applicable risk retention rules or failure of the Administrator to carry out its obligations under the Administration Agreementregulations. Except as expressly provided in the documents to which the Trust is a party, the The Owner Trustee shall have no obligation not be charged with knowledge of any such rules or regulations, and it shall not be liable to administer, service any Noteholder or collect the Receivables any other Person for any violation of any such rules or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivablesregulations.
Appears in 1 contract
Samples: Trust Agreement (Toyota Auto Finance Receivables LLC)
Duties of Owner Trustee. (a) Subject to Article IV and in accordance with the terms of the Basic Documents, the Certificateholders may by written instruction direct the Owner Trustee in the management of the Trust. Such direction may be exercised at any time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall take such action or refrain from taking such action under this Agreement as it may be directed in writing by the Certificateholders from time to time; provided, however, that the Owner Trustee shall not be required to take or refrain from taking any such action if it shall have determined, or shall have been advised by counsel, that such performance is likely to involve the Owner Trustee in personal liability or is contrary to the terms of this Agreement or of any document contemplated hereby to which the Trust is a party or is otherwise contrary to law. If at any time the Owner Trustee determines that it requires or desires guidance regarding the application of any provision of this Agreement or any other document, then the Owner Trustee may deliver a notice to the Certificateholders requesting written instructions as to the course of action desired by the Certificateholders and such instructions shall constitute full and complete authorization and protection for actions taken by the Owner Trustee in reliance thereon. If the Owner Trustee does not receive such instructions within five (5) Business Days after it has delivered to the Certificateholders such notice requesting instructions, or such shorter period of time as may be set forth in such notice, it shall refrain from taking any action with respect to the matters described in such notice. Each instruction delivered by the Certificateholders to the Owner Trustee shall certify to the Owner Trustee that any actions to be taken pursuant to such instruction comply with the terms of this Agreement and the Owner Trustee may rely on such certification and instruction without inquiry except to the extent it has actual knowledge to the contrary.
(c) The Owner Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with respect to such trusts but only upon the terms of this Agreement.
(d) The Owner Trustee, both prior upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to and after the occurrence Owner Trustee that shall be specifically required to be furnished pursuant to any provision of an Event of Servicer Defaultthis Agreement, shall undertake examine them to perform determine whether they conform on their face to the requirements of this Agreement.
(e) No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act, its own bad faith or its own willful misfeasance; provided, however, that:
(i) the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. If an Event of Servicer Default , no implied covenants or obligations shall have occurred and shall not have been cured and be read into this Agreement against the Owner Trustee has received notice of such Event of Servicer DefaultTrustee, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty permissive right of the Owner Trustee to discharge do things enumerated in this Agreement and the Basic Documents shall not be construed as a duty and, in the absence of bad faith on the part of the Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Owner Trustee and conforming on their face to the requirements of this Agreement and the Basic Documents;
(or cause to ii) the Owner Trustee shall not be discharged) all personally liable for an error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Owner Trustee was grossly negligent in performing its responsibilities pursuant to duties in accordance with the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party and on behalf of the Trust, file and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and Basic Documents;
(iii) the Owner Trustee shall not be held personally liable for with respect to any action taken, suffered or omitted to be taken in good faith in accordance with the default or failure direction of the Administrator to carry out its obligations under Holders of the Administration Agreement. Except Certificates representing at least a majority of the Percentage Interest (or such larger or smaller percentage of the Percentage Interest as expressly provided may be required by any other provision of this Agreement or the other Basic Documents); and
(iv) in the documents to which the Trust is a party, no event shall the Owner Trustee be personally liable for (x) special consequential or punitive damages, however styled, including, without limitation, lost profits, (y) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Trust’s securities or assets or (z) any losses due to forces beyond the reasonable control of the Owner Trustee, including without limitation, strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
(f) The Owner Trustee shall have no obligation not be required to administerexpend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, service or collect 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.
(g) All information obtained by the Owner Trustee regarding the Obligors and the Receivables contained in the Trust, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Owner Trustee in confidence and shall not be disclosed to maintainany other Person, monitor unless such disclosure is required by any applicable law or otherwise supervise the administration, servicing regulation or collection of the Receivablespursuant to subpoena.
Appears in 1 contract
Samples: Trust Agreement (Toyota Auto Finance Receivables LLC)
Duties of Owner Trustee. The Owner Trustee, both prior to and after the occurrence of an Event of Servicer Default, shall undertake to perform such duties as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and and, in the case of an Event of Default described in clause (i) of Section 14.01, the Owner Trustee has received notice of such Event of Servicer Default, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The ; provided, however, that if the Owner Trustee shall execute and deliver, on behalf assume the duties of the TrustServicer pursuant to Section 14.02, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee in performing such duties shall execute use the degree of skill and authenticate the Certificates in accordance attention customarily exercised by a servicer with this Agreement and shall execute the Notes in accordance with the Indenturerespect to automobile receivables that it services for itself or others. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party and shall on behalf of the Trust, Trust file and prove any claim or claims that may exist on behalf of the Trust against the Transferor Seller in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the TransferorSeller. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided in the documents to which the Trust is a party, the Owner Trustee shall have no obligation to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivables. The Owner Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Owner Trustee that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own negligent action, its own negligent failure to act, or its own bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing of all such Events of Servicer Default that may have occurred, the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as shall be specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Owner Trustee and, in the absence of bad faith on the part of the Owner Trustee, or manifest error, the Owner Trustee may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Owner Trustee and conforming to the requirements of this Agreement;
(ii) The Owner Trustee shall not be liable for an error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Owner Trustee shall have been negligent in ascertaining the pertinent facts;
(iii) The Owner Trustee shall not be liable with respect to any action taken, suffered, or omitted to be taken in good faith in accordance with this Agreement or at the direction of the Certificates relating to the time, method, and place of conducting any proceeding for any remedy available to the Owner Trustee, or exercising any trust or power conferred upon the Owner Trustee, under this Agreement; 42
(iv) The Owner Trustee shall not be charged with knowledge of any failure by the Servicer to comply with the obligations of the Servicer referred to in clauses (i) or (ii) of Section 14.01, or of any failure by the Seller to comply with the obligations of the Seller referred to in clause (ii) of Section 14.01, unless a Responsible Officer of the Owner Trustee receives written notice of such failure (it being understood that knowledge of the Servicer or the Servicer as custodian, in its capacity as agent for the Owner Trustee, is not attributable to the Owner Trustee) from the Servicer or the Seller, as the case may be; and
(v) Without limiting the generality of this Section or Section 15.04, the Owner Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to therein or any financing statement evidencing a security interest in the Receivables or the Financed Vehicles, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance of the Financed Vehicles or Obligors or to effect or maintain any such insurance, (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed, or levied against, any part of the Trust, (D) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Owner Trustee pursuant to this Agreement believed by the Owner Trustee to be genuine and to have been signed or presented by the proper party or parties, or (E) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Seller's or the Servicer's representations, warranties or covenants or the Servicer's duties and obligations as Servicer and as custodian of the Receivable Files under this Agreement. The Owner 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 hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Owner Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Owner Trustee shall be the successor to, and be vested with the rights, duties, powers, and privileges of, the Servicer in accordance with the terms of this Agreement. Except for actions expressly authorized by this Agreement, the Owner Trustee shall take no action reasonably likely to impair the security interests created or existing under any Receivable or to impair the value of any Receivable.
Appears in 1 contract
Duties of Owner Trustee. The Owner Trustee, both prior to and after the occurrence of an Event of Servicer Default, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and the Owner Trustee has received notice of such Event of Servicer Default, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates Certificate in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the CertificateholdersCertificateholder, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party Certificateholder and on behalf of the Trust, Trust file and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Trust or the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided in the documents to which the Trust is a party, the Owner Trustee shall have no obligation to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivables.
Appears in 1 contract
Samples: Trust and Servicing Agreement (Bay View Securitization Corp)
Duties of Owner Trustee. (a) The Owner Trustee, both prior to and after the occurrence of an Event of Servicer Default, shall undertake Trustee undertakes to perform such duties duties, and only such duties, as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and the Owner Trustee has received notice of such Event of Servicer Default, the Owner Trustee shall exercise such of the rights Pooling and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Servicing Agreement and the other documents to which Basic Documents, including the Trust is a party and to administer administration of the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to the Basic Documents and in accordance with the provisions of this Agreement and the other documents to which the Trust is a partyPooling and Servicing Agreement. Without limiting the foregoingNo implied covenants or obligations shall be read into this Agreement, the Owner Trustee shall, upon written direction of the Instructing Party Pooling and on behalf of the Trust, file and prove Servicing Agreement or any claim or claims that may exist on behalf of the Trust other Basic Document against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Owner Trustee.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party Basic Documents to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a partyBasic Document, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided .
(c) In the absence of bad faith on its part, the Owner Trustee may conclusively rely upon certificates or opinions furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the documents to which truth of the Trust is a partystatements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have no obligation examined such certificates or opinions so as to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection determine compliance of the Receivablessame with the requirements of this Agreement.
(d) The Owner Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
Appears in 1 contract
Samples: Trust Agreement (Navistar Financial Retail Receivables Corporation)
Duties of Owner Trustee. The Owner Trustee, both prior (a) Subject to and after the occurrence of an Event of Servicer Default, shall undertake to perform such duties as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and the Owner Trustee has received notice of such Event of Servicer DefaultSection 2.08 hereof, the Owner Trustee shall exercise such of the rights and powers vested in it is hereby authorized to take all actions required or permitted to be taken by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with under this Agreement and shall execute the Notes in accordance is hereby directed to comply with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a partyAgreement. Without limiting the foregoingIn addition, the Owner Trustee shall, upon written direction of the Instructing Party is authorized and on behalf of the Trust, file directed to execute and prove any claim or claims that may exist deliver on behalf of the Trust against on the Transferor in connection with any claims paying procedure Closing Date the Administration Agreement and each certificate or other document attached as part of an insolvency exhibit to or a receivership proceeding involving the Transferor. Notwithstanding contemplated by the foregoing, in each case, in such form as the Depositor shall approve as evidenced conclusively by the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Trustee’s execution thereof.
(b) The Owner Trustee shall not be held liable for have any duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the default Trust Property, to prepare or failure file any document or report (including any UCC financing statements and continuation statements), or otherwise to take or refrain from taking any action under or in connection with this Agreement or any other Underlying Transaction Document, except as expressly required by the terms of this Agreement, any of the Administrator to carry out its obligations under the Administration Agreement. Except Underlying Transaction Documents or as expressly provided directed in written instructions pursuant to Section 2.08; and no implied duties or obligations shall be read into this Agreement or any other Underlying Transaction Document against the documents Owner Trustee. Deutsche Bank Trust Company Delaware nevertheless agrees that it will, at its own cost and expense, promptly take all actions as may be necessary to which discharge any Liens on any part of the Trust is a party, Property which result from actions by or claims against Deutsche Bank Trust Company Delaware that are not related to the ownership of the Trust Property or any other part of the Trust or the administration of the Trust Property or the transactions contemplated by the Underlying Transaction Documents.
(c) The Owner Trustee shall not have no any duty to enforce any obligation or promise of any Certificateholder to administercontribute cash, service property or collect perform services to and for the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the ReceivablesTrust.
Appears in 1 contract
Samples: Trust Agreement (AFS Funding Trust)
Duties of Owner Trustee. (a) The Owner Trustee, both prior to and after the occurrence of an Event of Servicer Default, shall undertake Trustee undertakes to perform such duties duties, and only such duties, as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and the Owner Trustee has received notice of such Event of Servicer Default, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement Indenture and the other documents to which Issuing Entity Documents, including the Trust is a party and to administer administration of the Trust Issuing Entity in the interest of the Residual Interest Holders and the Certificateholders, subject to the Issuing Entity Documents and in accordance with the provisions of this Agreement and the other documents to which the Trust is a partyIndenture. Without limiting the foregoingNo implied covenants or obligations shall be read into this Agreement, the Owner Trustee shall, upon written direction of the Instructing Party and on behalf of the Trust, file and prove Indenture or any claim or claims that may exist on behalf of the Trust other Issuing Entity Document against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Owner Trustee.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party Issuing Entity Documents to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a partyIssuing Entity Document, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided .
(c) In the absence of bad faith on its part, the Owner Trustee may conclusively rely upon certificates or opinions furnished to the Owner Trustee and conforming to the requirements of this Agreement in determining the documents to which truth of the Trust is a partystatements and the correctness of the opinions contained therein; provided, however, that the Owner Trustee shall have no obligation examined such certificates or opinions so as to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection determine compliance of the Receivablessame with the requirements of this Agreement.
(d) The Owner Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect of subsection 6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any error of judgment made in good faith by an Owner Trustee Authorized Officer unless it is proved that the Owner Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Owner Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 4.1, 4.2 or 6.4.
(e) Subject to Sections 5.1 and 5.2, monies received by the Owner Trustee hereunder need not be segregated in any manner except to the extent required by law or the Indenture and may be deposited under such general conditions as may be prescribed by law, and the Owner Trustee shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is inconsistent with the purposes of the Issuing Entity set forth in Section 2.3 or (ii) would, to the actual knowledge of an Owner Trustee Authorized Officer, result in the Issuing Entity becoming taxable as a corporation for federal income tax purposes.
(g) The Certificateholders shall not direct the Owner Trustee to take action that would violate the provisions of this Section 6.1.
Appears in 1 contract
Duties of Owner Trustee. The Owner Trustee, both prior to and after the occurrence of an Event of Servicer Default, shall undertake to perform such duties as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and and, in the case of an Event of Default described in clause (i) of Section 14.01, the Owner Trustee has received notice of such Event of Servicer Default, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The ; provided, however, that if the Owner Trustee shall execute and deliver, on behalf assume the duties of the TrustServicer pursuant to Section 14.02, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee in performing such duties shall execute use the degree of skill and authenticate the Certificates in accordance attention customarily exercised by a servicer with this Agreement and shall execute the Notes in accordance with the Indenturerespect to automobile receivables that it services for itself or others. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party and shall on behalf of the Trust, Trust file and prove any claim or claims that may exist on behalf of the Trust against the Transferor Seller in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the TransferorSeller. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Except as expressly provided in the documents to which the Trust is a party, the Owner Trustee shall have no obligation to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivables. The Owner Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Owner Trustee that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own negligent action, its own negligent failure to act, or its own bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing of all such Events of Servicer Default that may have occurred, the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as shall be specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Owner Trustee and, in the absence of bad faith on the part of the Owner Trustee, or manifest error, the Owner Trustee may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Owner Trustee and conforming to the requirements of this Agreement;
(ii) The Owner Trustee shall not be liable for an error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Owner Trustee shall have been negligent in ascertaining the pertinent facts;
(iii) The Owner Trustee shall not be liable with respect to any action taken, suffered, or omitted to be taken in good faith in accordance with this Agreement or at the direction of the Certificates relating to the time, method, and place of conducting any proceeding for any remedy available to the Owner Trustee, or exercising any trust or power conferred upon the Owner Trustee, under this Agreement;
(iv) The Owner Trustee shall not be charged with knowledge of any failure by the Servicer to comply with the obligations of the Servicer referred to in clauses (i) or (ii) of Section 14.01, or of any failure by the Seller to comply with the obligations of the Seller referred to in clause (ii) of Section 14.01, unless a Responsible Officer of the Owner Trustee receives written notice of such failure (it being understood that knowledge of the Servicer or the Servicer as custodian, in its capacity as agent for the Owner Trustee, is not attributable to the Owner Trustee) from the Servicer or the Seller, as the case may be; and
(v) Without limiting the generality of this Section or Section 15.04, the Owner Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to therein or any financing statement evidencing a security interest in the Receivables or the Financed Vehicles, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance of the Financed Vehicles or Obligors or to effect or maintain any such insurance, (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed, or levied against, any part of the Trust, (D) to confirm or verify the contents of any reports or certificates of the Servicer delivered to the Owner Trustee pursuant to this Agreement believed by the Owner Trustee to be genuine and to have been signed or presented by the proper party or parties, or (E) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of any of the Seller's or the Servicer's representations, warranties or covenants or the Servicer's duties and obligations as Servicer and as custodian of the Receivable Files under this Agreement. The Owner 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 hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability shall not be reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Owner Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Owner Trustee shall be the successor to, and be vested with the rights, duties, powers, and privileges of, the Servicer in accordance with the terms of this Agreement. Except for actions expressly authorized by this Agreement, the Owner Trustee shall take no action reasonably likely to impair the security interests created or existing under any Receivable or to impair the value of any Receivable.
Appears in 1 contract
Samples: Trust and Servicing Agreement (Bay View Securitization Corp)
Duties of Owner Trustee. (a) Subject to Article IV and in accordance with the terms of the Basic Documents, the Certificateholders may by written instruction direct the Owner Trustee in the management of the Trust. Such direction may be exercised at any time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall take such action or refrain from taking such action under this Agreement as it may be directed in writing by the Certificateholders from time to time; provided, however, that the Owner Trustee shall not be required to take or refrain from taking any such action if it shall have determined, or shall have been advised by counsel, that such performance is likely to involve the Owner Trustee in personal liability or is contrary to the terms of this Agreement or of any document contemplated hereby to which the Trust is a party or is otherwise contrary to law. If at any time the Owner Trustee determines that it requires or desires guidance regarding the application of any provision of this Agreement or any other document, then the Owner Trustee may deliver a notice to the Certificateholders requesting written instructions as to the course of action desired by the Certificateholders and such instructions shall constitute full and complete authorization and protection for actions taken by the Owner Trustee in reliance thereon. If the Owner Trustee does not receive such instructions within five (5) Business Days after it has delivered to the Certificateholders such notice requesting instructions, or such shorter period of time as may be set forth in such notice, it shall refrain from taking any action with respect to the matters described in such notice. Each instruction delivered by the Certificateholders to the Owner Trustee shall certify to the Owner Trustee that any actions to be taken pursuant to such instruction comply with the terms of this Agreement and the Owner Trustee may rely on such certification and instruction without inquiry except to the extent it has actual knowledge to the contrary.
(c) The Owner Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with respect to such trusts but only upon the terms of this Agreement.
(d) The Owner Trustee, both prior upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to and after the occurrence Owner Trustee that shall be specifically required to be furnished pursuant to any provision of an Event of Servicer Defaultthis Agreement, shall undertake examine them to perform determine whether they conform on their face to the requirements of this Agreement.
(e) No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act, its own bad faith or its own willful misfeasance; provided, however, that:
(i) the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement, the Owner Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. If an Event of Servicer Default , no implied covenants or obligations shall have occurred and shall not have been cured and be read into this Agreement against the Owner Trustee has received notice of such Event of Servicer DefaultTrustee, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty permissive right of the Owner Trustee to discharge do things enumerated in this Agreement and the Basic Documents shall not be construed as a duty and, in the absence of bad faith on the part of the Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Owner Trustee and conforming on their face to the requirements of this Agreement and the Basic Documents;
(or cause to ii) the Owner Trustee shall not be discharged) all personally liable for an error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Owner Trustee was grossly negligent in performing its responsibilities pursuant to duties in accordance with the terms of this Agreement and the other documents Basic Documents;
(iii) the Owner Trustee shall not be personally liable with respect to which the Trust is a party and any action taken, suffered or omitted to administer the Trust be taken in the interest of the Residual Interest Holders and the Certificateholders, subject to and good faith in accordance with the provisions direction of the Holders of the Certificates representing at least a majority of the Percentage Interest (or such larger or smaller percentage of the Percentage Interest as may be required by any other provision of this Agreement or the other Basic Documents); and
(iv) in no event shall the Owner Trustee be personally liable for (x) special consequential or punitive damages, however styled, including, without limitation, lost profits, (y) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Trust’s securities or assets or (z) any losses due to forces beyond the reasonable control of the Owner Trustee, including without limitation, strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
(f) The Owner 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.
(g) All information obtained by the Owner Trustee regarding the Obligors and the Receivables contained in the Trust, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Owner Trustee in confidence and shall not be disclosed to any other documents Person, unless such disclosure is required by any applicable law or regulation or pursuant to which the Trust is subpoena.
(h) The Owner Trustee shall provide prompt notice to Toyota Motor Credit Corporation and Toyota Auto Finance Receivables LLC (each, a party. Without limiting the foregoing“TMCC Party,” and together, the “TMCC Parties”) of all demands received by an officer in the Corporate Trust Services Department of the Owner Trustee for the repurchase or replacement of any Receivable for breach of the representations and warranties concerning such Receivable (each, a “Demand”). If any such Demand is made in non-written form, the Owner Trustee shall request that such Demand be put into writing and delivered to it; provided, however, that the Owner Trustee shall notify the TMCC Parties regardless of whether any such Demand is made in writing. The obligations of the Owner Trustee under the first two sentences of this Section 6.03(h) to notify the TMCC Parties of any such Demand made in non-written form shall not be applicable during such time as the interpretations of the requirements of the Repurchase Rules and Regulations (as defined below) explicitly require reporting by TMCC Parties solely with respect to Demands in written form. The Owner Trustee shall, upon written direction request of either TMCC Party, provide notification to the TMCC Parties with respect to any actions taken by the Owner Trustee with respect to any such Demand received by the Owner Trustee in respect of any Receivables, such notifications to be provided by the Owner Trustee promptly after receipt by the Owner Trustee of such request but not more than once each calendar month or such other time frame as may be mutually agreed to by the Owner Trustee and the applicable TMCC Party. The Owner Trustee and the Depositor acknowledge and agree that the purpose of this Section 6.03(h) is to facilitate compliance by the TMCC Parties with Rule 15Ga-1 under the Securities Exchange Act of 1934, as amended, and Items 1104(e) and 1121(c) of Regulation AB (the “Repurchase Rules and Regulations”). The Owner Trustee shall cooperate with reasonable written requests received by it from the TMCC Parties to deliver any and all records and any other information in the possession of the Instructing Party and on behalf Owner Trustee that is necessary in the good faith determination of the Trust, file TMCC Parties to permit the TMCC Parties to comply with the provisions of Repurchase Rules and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the TransferorRegulations. Notwithstanding the foregoingSubject to its duties explicitly set forth herein, the Owner Trustee shall not have any responsibility or liability in connection with the compliance of either TMCC Party or a securitizer with the Securities Exchange Act of 1934, as amended, or Regulation AB or any filing required to be deemed to have discharged its duties and responsibilities hereunder and made by a TMCC Party or a securitizer under the Securities Exchange Act of 1934, as amended, or Regulation AB.
(i) The Owner Trustee hereby agrees to cooperate with the Administrator in connection with any regulatory, administrative, governmental, investigative or other documents to which the Trust is a party proceeding or inquiry relating in any way to the extent Trust, its assets or the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty conduct of the Owner Trustee hereunder or under any other document to which the Trust is a party, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreementbusiness. Except as expressly provided in the documents to which the Trust is a partyIn connection therewith, the Owner Trustee shall have no obligation further agrees to administer, service comply with any reasonable request made by the Administrator for the delivery of information or collect documents in the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the ReceivablesOwner Trustee’s actual possession.
Appears in 1 contract
Samples: Trust Agreement (Toyota Auto Finance Receivables LLC)
Duties of Owner Trustee. The Owner Trustee, both prior (a) Subject to and after the occurrence of an Event of Servicer Default, shall undertake to perform such duties as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured and the Owner Trustee has received notice of such Event of Servicer DefaultSection 2.09 hereof, the Owner Trustee shall exercise such of the rights and powers vested in it is hereby authorized to take all actions required or permitted to be taken by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with under this Agreement and shall execute the Notes in accordance is hereby directed to comply with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a partyAgreement. Without limiting the foregoingIn addition, the Owner Trustee shall, upon written direction of the Instructing Party is authorized and on behalf of the Trust, file directed to execute and prove any claim or claims that may exist deliver on behalf of the Trust against on the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving Closing Date the Transferor. Notwithstanding the foregoingPooling and Administration Agreement, the Purchase Agreement, the NAFCO Note, the Certificates, each Certificate Purchase Agreement and each certificate or other document attached as an exhibit to or contemplated by the foregoing documents, in each case, in such form as the Depositor shall approve as evidenced conclusively by the Owner Trustee's execution thereof. The Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent that the Servicer, the Administrator has or the Co-Trustees have agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and the such duties.
(b) The Owner Trustee shall not be held liable for have any duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the default Trust Property, to prepare or failure file any document or report, or otherwise to take or refrain from taking any action under or in connection with this Agreement, any other Related Agreement or any other Transaction Document (as such term is defined in the Pooling and Administration Agreement), except as expressly required by the terms of this Agreement, any of the Administrator to carry out its obligations under the Administration Agreement. Except Transaction Documents or as expressly provided directed in written instructions pursuant to Section 2.09; and no implied duties or obligations shall be read into this Agreement or any other Related Agreement against the documents Owner Trustee. The Chase Manhattan Bank (USA) nevertheless agrees that it will, at its own cost and expense, promptly take all actions as may be necessary to which discharge any Liens on any part of the Trust is a party, Property which result from actions by or claims against The Chase Manhattan Bank (USA) that are not related to the ownership of the Trust Property or any other part of the Trust or the administration of the Trust Property or the transactions contemplated by the Related Agreements.
(c) The Owner Trustee shall not have no any duty to enforce any obligation or promise of any Certificateholder to administercontribute cash, service property or collect perform services to and for the Receivables Trust. The Administrator shall have the duty to enforce any such obligation or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivablespromise.
Appears in 1 contract
Duties of Owner Trustee. (a) The Owner Trustee, both prior to and after the occurrence of an a 1997-B Servicer Event of Servicer DefaultDefault under the Servicing Agreement and the 1997-B Servicing Supplement, shall undertake undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event .
(b) The Owner Trustee, upon receipt of Servicer Default shall have occurred and shall not have been cured and all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Owner Trustee has received notice that shall be specifically required to be furnished pursuant to any provision of such Event this Agreement, shall examine them to determine whether they conform on their face to the requirements of Servicer Default, this Agreement.
(c) No provision of this Agreement shall be construed to relieve the Owner Trustee shall exercise such from liability for its own negligent action, its own negligent failure to act, its own bad faith or its own willful misfeasance; provided, however, that
(i) the duties and obligations of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all its responsibilities pursuant to the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party and on behalf of the Trust, file and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under determined solely by the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty express provisions of the Owner Trustee hereunder or under any other document to which the Trust is a partythis Agreement, and the Owner Trustee shall not be held liable except for the default performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or failure obligations shall be read into this Agreement against the Owner Trustee, the permissive right of the Administrator Owner Trustee to carry out its obligations under the Administration Agreement. Except do things enumerated in this Agreement shall not be construed as expressly provided a duty and, in the documents to which absence of bad faith on the Trust is a partypart of the Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Owner Trustee and conforming to the requirements of this Agreement;
(ii) the Owner Trustee shall have no obligation not be personally liable for an error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Owner Trustee was negligent in performing its duties in accordance with the terms of this Agreement; and
(iii) the Owner Trustee shall not be personally liable with respect to administerany action taken, service suffered or collect omitted to be taken in good faith in accordance with the Receivables direction of the Transferor relating to the time, method and place of conducting any proceeding for any remedy available to the Owner Trustee, or exercising any trust or power conferred upon the Owner Trustee, under this Agreement or the Origination Trust Agreement (as supplemented by the 1997-B SUBI Supplement).
(d) The Owner Trustee shall not be required to maintain, monitor expend or risk its own funds or otherwise supervise incur financial liability in the administrationperformance of any of its duties under this Agreement, servicing or collection in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the Receivablesrepayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(e) All information obtained by the Owner Trustee regarding the Obligors and the Leases contained in the 1997-B SUBI, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Owner Trustee in confidence and shall not be disclosed to any other Person, unless such disclosure is required by any applicable law or regulation or pursuant to subpoena.
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Samples: Securitization Trust Agreement (World Omni Lease Securitization L P /De/)
Duties of Owner Trustee. (a) Subject to Article IV and in accordance with the terms of the Basic Documents, the Certificateholder may by written instruction direct the Owner Trustee in the management of the Owner Trust Estate. Such direction may be exercised at any time by written instruction of the Certificateholder pursuant to Article IV. Subject to Section 2.11 and Article IV, and in accordance with the terms of the Basic Documents, the Sub-Trust Supplement and the Operating Agreement, the Administrator may be written instruction direct the Owner Trustee in the management of the Sub-Trust Assets. Such direction may be exercised at any time by written instruction of the Administrator pursuant to the terms of the Sub-Trust Supplement and the Operating Agreement.
(b) The Owner Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with respect to such trusts but only upon the terms of this Agreement.
(c) The Owner Trustee, both prior upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to and after the occurrence Owner Trustee that shall be specifically required to be furnished pursuant to any provision of an Event of Servicer Defaultthis Agreement, shall undertake examine them to perform determine whether they conform on their face to the requirements of this Agreement.
(d) No provision of this Agreement shall be construed to relieve the Owner Trustee from liability for its own negligent action, its own negligent failure to act, its own bad faith or its own willful misfeasance; provided, however, that:
(i) the duties and obligations of the Owner Trustee shall be determined solely by the express provisions of this Agreement and the Basic Documents, the Owner Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement. If an Event of Servicer Default shall have occurred and shall not have been cured Agreement and the Basic Documents, no implied covenants or obligations shall be read into this Agreement against the Owner Trustee has received notice of such Event of Servicer DefaultTrustee, the Owner Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs. The Owner Trustee shall execute and deliver, on behalf of the Trust, each Basic Document to which the Trust is a party and all certificates, instruments and agreements contemplated thereby. The Owner Trustee shall execute and authenticate the Certificates in accordance with this Agreement and shall execute the Notes in accordance with the Indenture. It shall be the duty permissive right of the Owner Trustee to discharge do things enumerated in this Agreement and the Basic Documents shall not be construed as a duty and, in the absence of bad faith on the part of the Owner Trustee, the Owner Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Owner Trustee and conforming on their face to the requirements of this Agreement and the Basic Documents;
(or cause to ii) the Owner Trustee shall not be discharged) all personally liable for an error of judgment made in good faith by a Trust Officer, unless it shall be proved that the Owner Trustee was negligent in performing its responsibilities pursuant to duties in accordance with the terms of this Agreement and the other documents to which the Trust is a party and to administer the Trust in the interest of the Residual Interest Holders and the Certificateholders, subject to and in accordance with the provisions of this Agreement and the other documents to which the Trust is a party. Without limiting the foregoing, the Owner Trustee shall, upon written direction of the Instructing Party and on behalf of the Trust, file and prove any claim or claims that may exist on behalf of the Trust against the Transferor in connection with any claims paying procedure as part of an insolvency or a receivership proceeding involving the Transferor. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other documents to which the Trust is a party to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other document to which the Trust is a party, and Basic Documents; and
(iii) the Owner Trustee shall not be held personally liable for with respect to any action taken, suffered or omitted to be taken in good faith in accordance with the default or failure direction of the Administrator Certificateholder.
(e) The Owner Trustee shall not be required to carry out expend or risk its obligations under the Administration Agreement. Except as expressly provided own funds or otherwise incur financial liability in the documents 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 which it.
(f) All information obtained by the Owner Trustee regarding the Obligors and the Receivables contained in the Trust and concerning the Sub-Trust Assets, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Owner Trustee in confidence and shall not be disclosed to any other Person, unless such disclosure is required by any applicable law or regulation or pursuant to subpoena.
(g) Pursuant to Section 3.02 of the Sale and Servicing Agreement, in the event that the Owner Trustee discovers that a partyrepresentation or warranty with respect to a Receivable was incorrect as of the time specified with respect to such representation and warranty and such incorrectness materially and adversely affects the interests of the Trust in such Receivable, the Owner Trustee shall have no obligation give prompt written notice to administerthe Servicer, service or collect the Receivables or Depositor and the Indenture Trustee of such incorrectness. Pursuant to maintain, monitor or otherwise supervise the administration, servicing or collection Section 4.08 of the ReceivablesSale and Servicing Agreement, in the event that the Owner Trustee discovers that any covenant of the Servicer set forth in Section 4.06 or 4.07 of the Sale and Servicing Agreement has been breached by the Servicer and such incorrectness materially and adversely affects the interests of the Trust in any Receivable, the Owner Trustee shall give prompt written notice to the Servicer, the Depositor and the Indenture Trustee of such breach.
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