AMENDMENT NO. 3 TO AMENDED AND RESTATED TRUST AGREEMENT Exeter Automobile Receivables Trust 2020-3
Exhibit 99.3
Execution Version
AMENDMENT NO. 3 TO
AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED TRUST AGREEMENT, dated as of May 31, 2023 (this “Amendment”), between EFCAR, LLC, a Delaware limited liability company, as depositor (in such capacity, the “Depositor”), and WILMINGTON TRUST
COMPANY, a Delaware trust company, as owner trustee (the “Owner Trustee”).
WHEREAS, the Depositor and the Owner Trustee are parties to that certain amended and restated trust agreement, dated as of August 31, 2020, as
amended by Amendment No. 1 thereto and Amendment No. 2 thereto, in each case dated as of January 19, 2022 (such agreement, as so amended, the “Amended and Restated Trust Agreement”),
of Exeter Automobile Receivables Trust 2020-3 (the “Trust”);
WHEREAS, the Depositor and the Owner Trustee desire to amend the Amended and Restated Trust Agreement in order to change the minimum denomination of
the Certificates and to make certain other related amendments;
WHEREAS, pursuant to, and subject to certain conditions described in, Section 10.1(a) of the Amended and Restated Trust Agreement, the Depositor and
the Owner Trustee may amend the Amended and Restated Trust Agreement for certain limited purposes;
WHEREAS, the Depositor has caused to be delivered to the Owner Trustee and the Indenture Trustee the Opinion of Counsel described in Section
10.1(a)(ii) of the Amended and Restated Trust Agreement; and
WHEREAS, the Depositor has caused to be delivered to the Owner Trustee the Opinion of Counsel described in the penultimate paragraph of Section
10.1(b) of the Amended and Restated Trust Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used but not otherwise defined herein have the meanings given to them in the Amended and Restated Trust Agreement.
SECTION 2. Amendments to the Amended and Restated Trust Agreement.
(a) The last paragraph in Section 3.2 of the Amended and Restated Trust Agreement is hereby amended by replacing the reference therein to “$14,286” with “$1,001”.
(b) The last paragraph in Section 3.7 of the Amended and Restated Trust Agreement is hereby amended and restated, as follows:
“Notwithstanding the foregoing, no sale or transfer of a Certificate (or beneficial interest therein) shall be permitted
(including, without limitation, by pledge or hypothecation), and no such sale or transfer shall be registered by the Certificate Registrar (in the case of a Definitive Certificate) or be effective hereunder, if the sale or transfer thereof
increases to more than 99 the sum of the number of Certificateholders of any Definitive Certificates and the number of Certificate Owners of any Book-Entry Certificates. For purposes of determining the total number of Certificateholders and
Certificate Owners, a beneficial owner of an interest in a partnership, grantor trust, S corporation or other flow-through entity that owns, directly or through other flow-through entities, any Definitive Certificates or Book-Entry Certificates is
treated as a Certificateholder of any Definitive Certificates or Certificate Owner of any Book-Entry Certificates if (i) substantially all of the value of such beneficial owner's interest (directly or indirectly) in the flow-through entity is
attributed to the flow-through entity's interest in such Certificates and (ii) a principal purpose of the use of the flow-through entity to hold such Certificates is to satisfy the 99-holder limitation set out above. If using a flow-through entity
to acquire a Certificate, the Certificateholder or Certificate Owner shall be deemed to have represented that it is not using the flow-through entity in order to avoid the 99-holder limitation set out above. In addition, no sale or transfer of a
Certificate shall be registered by the Certificate Registrar (in the case of a Definitive Certificate) or be effective hereunder unless, as evidenced by a written representation and covenant by the transferee in form satisfactory to the Certificate
Registrar (in the case of a Definitive Certificate) or the Depositor (in the case of a Book-Entry Certificate), upon which representation and covenant such Person may conclusively rely, no member of such transferee’s expanded group as defined in
Treasury Regulation Section 1.385-1(c)(4) (including through a controlled partnership as defined in Treasury Regulation Section 1.385-1(c)(1)) is or will become the beneficial owner of a Note. If a Certificateholder (in the case of a Definitive
Certificate) or Certificate Owner (in the case of a Book-Entry Certificate), or a member of such Certificateholder’s or Certificate Owner’s expanded group becomes the beneficial owner of a Note, the Depositor is authorized at its discretion to
compel such Certificateholder or Certificate Owner, as applicable, to sell its Certificates or beneficial interest in Certificates to a Person whose ownership or beneficial ownership complies with this paragraph so long as such sale does not
otherwise cause a material adverse effect on the Trust. Any Person that becomes a Certificate Owner shall, by acceptance of its beneficial interest, be deemed to have made the acknowledgments, representations, warranties and covenants required of
transferees in this Section 3.7 and covenants and agrees that it will abide by the transfer restrictions applicable to holders of Certificates set forth herein.”
(c) The second sentence in the first paragraph of Exhibit A to the Amended and Restated Trust Agreement is hereby amended and restated, as follows:
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“THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF $1,001 AND INTEGRAL MULTIPLES OF $1 IN EXCESS THEREOF.”
(d) The fifth paragraph of the “(Reverse of Certificate)” in Exhibit A to the Amended and Restated Trust Agreement is hereby amended and restated in its entirety, as follows:
“No sale or transfer of a Certificate (or beneficial interest therein) shall be permitted (including, without limitation, by
pledge or hypothecation), and no such sale or transfer shall be registered by the Certificate Registrar (in the case of a Definitive Certificate) or be effective under the Trust Agreement, if the sale or transfer thereof increases to more than 99
the sum of the number of Certificateholders of any Definitive Certificates and the number of Certificate Owners of any Book-Entry Certificates. For purposes of determining the total number of Certificateholders and Certificate Owners, a beneficial
owner of an interest in a partnership, grantor trust, S corporation or other flow-through entity that owns, directly or through other flow-through entities, any Definitive Certificates or Book-Entry Certificates is treated as a Certificateholder of
any Definitive Certificates or Certificate Owner of any Book-Entry Certificates if (i) substantially all of the value of such beneficial owner's interest (directly or indirectly) in the flow-through entity is attributed to the flow-through entity's
interest in such Certificates and (ii) a principal purpose of the use of the flow-through entity to hold such Certificates is to satisfy the 99-holder limitation set out above. If using a flow-through entity to acquire a Certificate, the
Certificateholder or Certificate Owner shall be deemed to have represented that it is not using the flow-through entity in order to avoid the 99-holder limitation set out above. In addition, no sale or transfer of a Certificate shall be registered
by the Certificate Registrar (in the case of a Definitive Certificate) or be effective under the Trust Agreement unless, as evidenced by a written representation and covenant by the transferee in form satisfactory to the Certificate Registrar (in
the case of a Definitive Certificate) or the Depositor (in the case of a Book-Entry Certificate), upon which representation and covenant such Person may conclusively rely, no member of such transferee’s expanded group as defined in Treasury
Regulation Section 1.385-1(c)(4) (including through a controlled partnership as defined in Treasury Regulation Section 1.385-1(c)(1)) is or will become the beneficial owner of a Note. If a Certificateholder (in the case of a Definitive
Certificate) or Certificate Owner (in the case of a Book-Entry Certificate), or a member of such Certificateholder’s or Certificate Owner’s expanded group becomes the beneficial owner of a Note, the Depositor is authorized at its discretion to
compel such Certificateholder or Certificate Owner, as applicable, to sell its Certificates or beneficial interest in Certificates to a Person whose ownership or beneficial ownership complies with this paragraph so long as such sale does not
otherwise cause a material adverse effect on the Trust. Any Person that becomes a Certificate Owner shall, by acceptance of its beneficial interest, be deemed to have made the acknowledgments, representations, warranties and covenants required of
transferees in Section 3.7 of
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the Trust Agreement and covenants and agrees that it will abide by the transfer restrictions applicable to holders of Certificates set forth
therein.”
SECTION 3. Representations and Warranties. Each of the parties hereto represents and warrants to the other parties hereto as set forth in this Section 3.
(a) The execution, delivery and performance by such party of this Amendment are within its powers, have been
duly authorized by all necessary action, and do not contravene its organizational documents or any contractual restriction, law or governmental regulation, or court decree or order binding on or affecting it.
(b) This Amendment constitutes the legal, valid and binding obligation of such party enforceable against such
party in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights and general equitable principles.
SECTION 4. Binding Effect; Ratification.
(a) This Amendment shall become effective as of the date first set forth above once counterparts hereof shall have
been executed and delivered by the parties hereto, at which time this Amendment shall become binding on the parties hereto and their respective successors and assigns.
(b) The Amended and Restated Trust Agreement, as amended hereby, remains in full force and effect. On and after the
date hereof, each reference in the Amended and Restated Trust Agreement to “this Agreement”, “hereof”, “hereunder” or words of like import, and each reference in any other Basic Document to the Amended and Restated Trust Agreement, shall mean and
be a reference to the Amended and Restated Trust Agreement, as amended hereby.
(c) Except as expressly amended hereby, the Amended and Restated Trust Agreement shall remain in full force and
effect and is hereby ratified and confirmed by the parties hereto.
SECTION 5. Miscellaneous.
(a) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b) The headings of the various Articles and Sections in this Amendment are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
(c) This Amendment may be executed by the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. Each of the parties hereto further agrees that this Amendment and any other documents to be delivered in connection herewith may
be electronically signed, and that any electronic signatures appearing on this Amendment or such
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other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. Executed counterparts of this Amendment may be
delivered electronically.
SECTION 6. Direction to Owner Trustee. Pursuant to Section 5.3 of the Amended and Restated Trust Agreement, EFCAR, LLC, in its capacity as the Certificate Owner of $62,950 nominal principal amount of Book-Entry
Certificates, hereby authorizes and directs the Owner Trustee to execute and deliver this Amendment. EFCAR, LLC hereby certifies to the Owner Trustee that (i) it is the Certificate Owner of $62,950 nominal principal amount of Book-Entry
Certificates, (ii) it has provided notice of the Amendment to the Rating Agencies, and (iii) all conditions precedent to the execution and delivery of this Amendment have been satisfied. The Depositor agrees to indemnify the Owner Trustee against
the costs, expenses and liabilities that may be incurred by the Owner Trustee in connection with this Amendment, including without limitation in connection with the waiver described in Section 8 of this Amendment.
SECTION 7. Waiver of Notice. The Depositor hereby waives the requirement that the Owner Trustee provide written notification to the Depositor, including in its capacity as a Certificate Owner of Book-Entry Certificates, of
the substance of this Amendment pursuant to Section 10.1(b) of the Amended and Restated Trust Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
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EFCAR, LLC, as Depositor and as a
Certificate Owner of Book-Entry
Certificates
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By:
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/s/ Xxx Xxxxxx
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Name:
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Xxx Xxxxxx
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Title:
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Chief Executive Officer
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WILMINGTON TRUST COMPANY, as
Owner Trustee, Certificate Paying Agent
and Certificate Registrar
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By:
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/s/ Xxxxx Xxxxxxxxxx
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Name:
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Xxxxx Xxxxxxxxxx
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Title:
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Assistant Vice President
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