EXHIBIT 4.4
TOYOTA AUTO RECEIVABLES 2002-B OWNER TRUST
(a Delaware Business Trust)
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AMENDED AND RESTATED TRUST AGREEMENT
between
TOYOTA AUTO FINANCE RECEIVABLES LLC,
as Depositor,
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Owner Trustee
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Dated as of May 1, 2002
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.01 Definitions.........................................................1
Section 1.02 Usage of Terms......................................................4
ARTICLE II
CREATION OF TRUST
Section 2.01 Creation of Trust...................................................4
Section 2.02 Office..............................................................4
Section 2.03 Purposes and Powers.................................................4
Section 2.04 Power of Attorney...................................................5
Section 2.05 Declaration of Trust................................................5
Section 2.06 Liability of the Certificateholder and TMCC.........................6
Section 2.07 Title to Trust Property.............................................6
Section 2.08 Situs of Trust......................................................6
Section 2.09 Representations and Warranties of the Depositor.....................6
Section 2.10 Federal Income Tax Allocations......................................8
ARTICLE III
CERTIFICATE
Section 3.01 The Certificate.....................................................8
Section 3.02 Authentication of the Certificate...................................8
Section 3.03 Transfer Restriction................................................8
Section 3.04 Mutilated, Destroyed, Lost or Stolen Certificate....................8
Section 3.05 Maintenance of Office or Agency.....................................9
Section 3.06 Appointment of Paying Agent.........................................9
ARTICLE IV
ACTIONS BY OWNER TRUSTEE OR THE CERTIFICATEHOLDER
Section 4.01 Prior Notice to the Certificateholder with Respect to Certain
Matters............................................................10
Section 4.02 Action by the Certificateholder with Respect to Certain Matters....10
Section 4.03 Action with Respect to Bankruptcy..................................11
Section 4.04 Restrictions on the Certificateholder's Power......................11
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
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Section 5.01 Establishment of Collection Account and Payahead Account...........11
Section 5.02 Application of Amounts in Trust Accounts...........................12
Section 5.03 Method of Payment..................................................13
Section 5.04 Accounting and Reports to the Noteholders, the Certificateholder,
the Internal Revenue Service and Others............................13
Section 5.05 Signature on Returns; Tax Matters Partner..........................13
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01 General Authority..................................................14
Section 6.02 General Duties.....................................................14
Section 6.03 Duties of Owner Trustee............................................14
Section 6.04 No Duties Except as Specified in this Agreement or in
Instructions.......................................................15
Section 6.05 No Action Except Under Specified Documents or Instructions.........16
Section 6.06 Restrictions.......................................................16
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01 Rights of Owner Trustee............................................16
Section 7.02 Furnishing of Documents............................................17
Section 7.03 Representations and Warranties.....................................17
Section 7.04 Reliance; Advice of Counsel........................................18
Section 7.05 Not Acting in Individual Capacity..................................18
Section 7.06 Owner Trustee Not Liable for the Certificate or Receivables........19
Section 7.07 Owner Trustee May Own the Notes....................................19
Section 7.08 Sales Finance Company Licenses.....................................19
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01 Owner Trustee's Fees and Expenses..................................20
Section 8.02 Indemnification....................................................20
Section 8.03 Payments to the Owner Trustee......................................20
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01 Termination of Trust Agreement.....................................21
Section 9.02 Dissolution upon Insolvency of the Depositor.......................22
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ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01 Eligibility Requirements for Owner Trustee.........................22
Section 10.02 Resignation or Removal of Owner Trustee............................23
Section 10.03 Successor Owner Trustee............................................23
Section 10.04 Merger or Consolidation of Owner Trustee...........................24
Section 10.05 Appointment of Co-Trustee or Separate Trustee......................24
Section 10.06 Power of Attorney for Co-Trustee or Separate Trustee...............25
ARTICLE XI
MISCELLANEOUS
Section 11.01 Supplements and Amendments.........................................25
Section 11.02 No Legal Title to Owner Trust Estate in the Certificateholder......27
Section 11.03 Limitations on Rights of Others....................................27
Section 11.04 Notices............................................................27
Section 11.05 Severability.......................................................27
Section 11.06 Counterparts.......................................................28
Section 11.07 Successors and Assigns.............................................28
Section 11.08 No Petition........................................................28
Section 11.09 No Recourse........................................................28
Section 11.10 Headings...........................................................28
Section 11.11 Governing Law......................................................28
Section 11.12 TMCC Payment Obligation ...........................................28
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EXHIBITS
EXHIBIT A FORM OF CERTIFICATE.....................................................A-1
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AMENDED AND RESTATED TRUST AGREEMENT dated as of May 1, 2002, by and
between TOYOTA AUTO FINANCE RECEIVABLES LLC, a Delaware limited liability
company, as depositor, and U.S. BANK TRUST NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity but solely as Owner Trustee,
amending and restating in its entirety the Trust Agreement dated as of April 19,
2002, by and between TOYOTA AUTO FINANCE RECEIVABLES LLC, a Delaware limited
liability company, as depositor, and U.S. BANK TRUST NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity but solely as Owner
Trustee, and herein referred to as the "Trust Agreement" or this "Agreement."
IN CONSIDERATION of the mutual agreements herein contained, and of
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. Except as otherwise specified herein or if the
context may otherwise require, capitalized terms used but not otherwise defined
herein have the meanings ascribed thereto in the Sale and Servicing Agreement
and the Indenture for all purposes of this Trust Agreement. Except as otherwise
provided in this Agreement, whenever used herein the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
"Administration Agreement" means the Administration Agreement dated as
of May 1, 2002, by and between the Trust as issuer, TMCC as Administrator, the
Indenture Trustee and the Owner Trustee pursuant to which TMCC undertakes to
perform certain of the duties and obligations of the Trust and the Owner Trustee
hereunder, under the Sale and Servicing Agreement and under the Indenture.
"Administrator" means TMCC acting in its capacity as Administrator under
the Administration Agreement.
"Agreement" means this Amended and Restated Trust Agreement, as the same
may be amended and supplemented from time to time.
"Basic Documents" means the Receivables Purchase Agreement, this
Agreement, the Certificate of Trust, the Sale and Servicing Agreement, the
Indenture, the Administration Agreement, the Revolving Liquidity Note Agreement,
the Revolving Liquidity Note, the Securities Account Control Agreement and the
other documents and certificates delivered in connection herewith and therewith.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as the same may be amended from time to
time.
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"Certificate" means a certificate evidencing the Subordinated Seller's
Interest, substantially in the form attached hereto as Exhibit A.
"Certificate of Trust" means the Certificate of Trust filed with respect
to the formation of the Trust pursuant to Section 3810(a) of the Business Trust
Statute, as amended, corrected or restated from time to time.
"Certificateholder" or "Holder" means TAFR LLC, as holder of the
Subordinated Seller's Interest.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"Corporate Trust Office" means, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at 000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx, 00000-0000; or at such other
address as the Owner Trustee may designate by notice to the Certificateholder,
or the principal corporate trust office of any successor Owner Trustee (the
address of which the successor Owner Trustee will notify the Certificateholder).
"Depositor" means TAFR LLC in its capacity as depositor hereunder.
"Expenses" shall have the meaning assigned to such term in Section 8.02.
"Indenture" means the Indenture dated as of May 1, 2002, entered into
between the Trust and The Bank of New York, a New York State banking
institution, the Indenture Trustee named therein, pursuant to which a series of
Notes are issued.
"Non-U.S. Person" means any Person who is not (i) a citizen or resident
of the United States who is a natural person, (ii) a corporation or partnership
(or an entity treated as a corporation or partnership) organized in or under the
laws of the United States or any state thereof, including the District of
Columbia (unless, in the case of a partnership, Treasury Regulations are adopted
that provide otherwise), (iii) an estate, the income of which is subject to
United States Federal income taxation, regardless of its source or (iv) a trust,
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States persons (as such
term is defined in the Code and Treasury Regulations) have the authority to
control all substantial decisions of the trust; except that, to the extent
provided in Treasury Regulations, certain trusts in existence prior to August
20, 1996 which elected to be treated as United States Persons prior to such date
also shall be U.S. Persons.
"Notes" means the notes issued by the Trust pursuant to the Indenture,
having the payment and other terms set forth in such Indenture.
"Owner Trust Estate" means all right, title and interest of the Trust in
and to the property and rights assigned to the Trust pursuant to Article II of
the Sale and Servicing Agreement, all funds on deposit from time to time in the
accounts created pursuant to Section 5.01 of the Sale and Servicing Agreement
(excluding any net investment income with respect to amounts held in such
accounts) and all other property of the Trust from time to time, including any
rights of the
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Owner Trustee and the Trust pursuant to the Sale and Servicing Agreement and the
Administration Agreement, and as assignee of the rights and Interests of the
Depositor under the Receivables Purchase Agreement.
"Owner Trustee" means U.S. Bank Trust National Association, a national
banking association, not in its individual capacity but solely as Owner Trustee
under this Agreement, and any successor Owner Trustee hereunder.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 3.06, and shall initially be the Owner Trustee.
"Receivables Purchase Agreement" means that certain Receivables Purchase
Agreement, dated as of May 1, 2002, between TMCC, as Seller, and TAFR LLC, as
Purchaser of the Receivables.
"Record Date" means, with respect to the Notes of any Class and each
Payment Date, the calendar day immediately preceding such Payment Date or, if
Definitive Notes representing any Class of Notes have been issued, the last day
of the month immediately preceding the month in which such Payment Date occurs.
Any amount stated "as of a Record Date" or "on a Record Date" shall give effect
to (i) all applications of collections, and (ii) all payments and distributions
to any party under this Agreement, the Indenture and the Trust Agreement or to
the related Obligor, as the case may be, in each case as determined as of the
opening of business on the related Record Date.
"Revolving Liquidity Note" means the Revolving Liquidity Note issued by
the Trust pursuant to the Revolving Liquidity Note Agreement.
"Revolving Liquidity Note Agreement" means the Revolving Liquidity Note
Agreement dated as of May 23, 2002, between the Trust, as issuer of the
Revolving Liquidity Note, and TMCC, as initial Holder of the Revolving Liquidity
Note.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
dated as of May 1, 2002, among the Trust, TAFR LLC, as seller, and TMCC, as
servicer.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Securities Account Control Agreement" shall have the meaning ascribed
thereto in the Sale and Servicing Agreement.
"Subordinated Seller's Interest" means a fractional undivided interest
in the Trust that includes the right to payment of certain available amounts in
excess of those necessary to make payments on the Notes on each Payment Date
pursuant to Section 5.02(a) herein. The Subordinated Seller's Interest shall
represent the entire beneficial ownership of the Trust.
"TAFR LLC" means Toyota Auto Finance Receivables LLC, a Delaware limited
liability company, its successors and assigns.
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"TMCC" means Toyota Motor Credit Corporation, a California corporation,
its successors and assigns.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" means the Toyota Auto Receivables 2002-B Owner Trust, formed as
a Delaware business trust pursuant to this Agreement and the filing of the
Certificate of Trust.
SECTION 1.02 USAGE OF TERMS. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the term "including"
means "including without limitation."
ARTICLE II
CREATION OF TRUST
SECTION 2.01 CREATION OF TRUST. There is hereby formed in accordance
with the provisions of the Delaware Act, a Delaware business trust to be known
as the Toyota Auto Receivables 2002-B Owner Trust. The Owner Trustee is hereby
authorized and vested with the power and authority to make and execute
contracts, instruments, certificates, agreements and other writings on behalf of
the Trust as set forth herein and to sue and be sued on behalf of the Trust. The
Owner Trustee does hereby accept and agree to hold in trust, for the benefit of
the Certificateholder and such other Persons as may become beneficiaries
hereunder from time to time, all of the Owner Trust Estate conveyed or to be
conveyed to the Trust and all monies and proceeds that may be received with
respect thereto, subject to the terms of this Agreement.
SECTION 2.02 OFFICE. The principal place of business of the Trust for
purposes of Delaware law shall be in care of the Owner Trustee. The Trust may
establish additional offices located at such place or places inside or outside
of the State of Delaware as the Owner Trustee may designate from time to time in
written notice to the Certificateholder and the Servicer. Initially, the Trust
shall establish one such additional office at the offices of the Owner Trustee
set forth in Section 3.05.
SECTION 2.03 PURPOSES AND POWERS.
(a) The purpose of the Trust is to engage in the following activities:
(i) to issue Notes pursuant to the Indenture and the Certificate
pursuant to this Agreement;
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(ii) to issue the Revolving Liquidity Note pursuant to the
Revolving Liquidity Note Agreement;
(iii) to acquire the Receivables and related property from the
Depositor in exchange for the Notes and the Certificate pursuant to the
Sale and Servicing Agreement;
(iv) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to, and on the terms and conditions set forth in,
the Indenture and to hold, manage and distribute to the
Certificateholder pursuant to the terms of the Sale and Servicing
Agreement any portion of the Trust Estate released from the Lien of, and
remitted to the Trust pursuant to, the Indenture as set forth therein
and in the Sale and Servicing Agreement;
(v) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vii) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholder and the Noteholders and in respect of amounts
to be released to the Depositor, the Servicer, the Administrator and
third parties, if any.
The Trust is hereby authorized to engage in the foregoing activities.
The Trust shall not engage in any activity other than in connection with the
foregoing and as required or authorized by the terms of the Basic Documents.
SECTION 2.04 POWER OF ATTORNEY. Pursuant to the Administration
Agreement, the Owner Trustee has authorized the Administrator to perform certain
of its administrative duties hereunder, including duties with respect to the
management of the Owner Trust Estate, and in connection therewith hereby grants
the Administrator its revocable power of attorney. The Certificateholder by its
acceptance of the Certificate shall be deemed to have granted power of attorney
to the Administrator for purposes of actions taken or to be taken with respect
to the Certificate.
SECTION 2.05 DECLARATION OF TRUST. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholder,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a business trust under
the Business Trust Statute and that this Agreement constitute the governing
instrument of such business trust. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth herein and in the
Business Trust Statute with respect to accomplishing the purposes of the Trust.
At the direction of the Depositor, the Owner Trustee shall file or cause to be
filed a certificate of trust for the Issuer pursuant to the Delaware Business
Trust Statute and
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such amendments thereto as shall be necessary or appropriate to satisfy the
purposes of this agreement and as shall be consistent with the provisions
hereof.
SECTION 2.06 LIABILITY OF THE CERTIFICATEHOLDER AND TMCC.
(a) The Administrator shall be liable directly to and will, in
accordance with the Administration Agreement and the following provisions of
this Agreement, indemnify and hold harmless the Owner Trustee, any co-trustee
and the Indenture Trustee for any loss, liability, claim, action, suit, cost or
expense of the Trust (including Expenses, to the extent not paid out of the
Owner Trust Estate) to the extent that TMCC would be liable if the Trust were a
partnership under the Delaware Revised Uniform Limited Partnership Act in which
TMCC were a general partner; provided, however, that the Administrator shall not
be liable for any losses incurred by the Certificateholder in the capacity of an
investor in the Certificate or a Noteholder in the capacity of an investor in
the Notes and will not and shall not be deemed hereby to have indemnified the
Owner Trustee, the any co-trustee or Indenture Trustee against any loss,
liability or expense resulting from such trustee's own willful misfeasance, bad
faith or negligence or by reason of a breach of representation or warranty
thereof contained herein or in the Indenture, as the case may be. In addition,
any third party creditors of the Trust (other than in connection with the
obligations described in the provisions in the preceding sentence for which TMCC
shall not be liable) shall be deemed to be third party beneficiaries of this
paragraph.
(b) The Certificateholder shall not have any personal liability for any
liability or obligation of the Trust, solely by reason of it being the
Certificateholder.
SECTION 2.07 TITLE TO TRUST PROPERTY. Legal title to all of the Owner
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.08 SITUS OF TRUST. The Trust will be located and administered
in Delaware. All bank accounts maintained by the Owner Trustee on behalf of the
Trust shall be located in the State of Delaware or the State of New York. The
Trust shall not have any employees in any state other than Delaware; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee from
having employees within or without the State of Delaware. Payments will be
received by the Trust only in Delaware or New York, and payments will be made by
the Trust only from Delaware or New York.
SECTION 2.09 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
(a) The Depositor hereby represents and warrants to the Owner Trustee
that as of the Closing Date:
(i) The Depositor is duly organized and validly existing as a
limited liability company in good standing under the laws of the State
of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is presently conducted, and had
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at all relevant times and has power, authority and legal right to
acquire, own and sell the Receivables.
(ii) The Depositor is duly qualified to do business as a foreign
limited liability company in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall
require such qualifications and where the failure to so qualify will
have a material adverse effect on the ability of the Depositor to
conduct its business or perform its obligations under this Agreement.
(iii) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms and the execution,
delivery and performance of this Agreement has been duly authorized by
the Depositor by all necessary action.
(iv) This Agreement shall constitute a legal, valid and binding
obligation of the Depositor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors'
rights generally or by general principles of equity.
(v) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the limited liability company agreement of the Depositor or conflict
with or breach any of the terms or provisions or constitute (with or
without notice or lapse of time) a default under any indenture,
agreement or other instrument to which the Depositor is a party or by
which it is bound, nor result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of
any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Depositor or its properties which breach, default, conflict, lien or
violation would have a material adverse effect on the earnings, business
affairs or business prospects of the Depositor.
(vi) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or to the Depositor's knowledge, threatened, against or affecting the
Depositor: (i) asserting the invalidity of this Agreement, (ii) seeking
to prevent the consummation of any of the transactions contemplated by
this Agreement, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement
or (iv) relating to the Depositor and which
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might adversely affect the federal income tax attributes of the Trust or
the Certificate or the Notes.
SECTION 2.10 FEDERAL INCOME TAX ALLOCATIONS. To the extent required for
Federal income tax purposes, net income or net losses of the Trust for any month
as determined for Federal income tax purposes (and each item of income, gain,
loss and deduction entering into the computation thereof) shall be allocated to
the Certificateholder (to the extent not previously allocated pursuant to this
clause). The Depositor is authorized to modify the allocations in this paragraph
if necessary or appropriate, in its sole discretion for the allocations to
fairly reflect the economic income, gain or loss to the Certificateholder, as
otherwise required by the Code.
ARTICLE III
CERTIFICATE
SECTION 3.01 THE CERTIFICATE. The Certificate shall be executed on
behalf of the Trust by manual or facsimile signature of a Trust Officer of the
Owner Trustee and authenticated on behalf of the Owner Trustee by the manual or
facsimile signature of a Trust Officer. The Certificate bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be a
valid and binding obligation of the Trust, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the authentication
and delivery of the Certificate or did not hold such offices at the date of
authentication and delivery of the Certificate. The Certificate may be printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination in the form of Exhibit A hereto.
SECTION 3.02 AUTHENTICATION OF THE CERTIFICATE. Concurrently with the
initial sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Owner Trustee shall cause to be executed, authenticated and
delivered on behalf of the Trust to or upon the written order of the Depositor,
the Certificate evidencing the Subordinated Seller's Interest. The Certificate
shall not entitle its holder to any benefit under this Agreement or be valid for
any purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee or the Owner Trustee's authenticating agent, by manual or
facsimile signature of a Trust Officer, and such authentication shall constitute
conclusive evidence, and the only evidence, that such Certificate shall have
been duly authenticated and delivered hereunder. The Certificate shall be dated
the date of its authentication.
SECTION 3.03 TRANSFER RESTRICTION. The Certificate shall not be
transferable by the Certificateholder to any other Person unless such transfer
is a result of or in connection with a consolidation or merger of the
Certificateholder with such Person. Any other purported transfer of the
Certificate or any beneficial interest therein will be deemed to be void and of
no effect to the extent permitted by applicable law.
SECTION 3.04 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATE. If (a) a
mutilated Certificate shall be surrendered to the Owner Trustee, or if the Owner
Trustee shall receive
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evidence to its satisfaction of the destruction, loss or theft of the
Certificate and (b) there shall be delivered to the Owner Trustee such security
or indemnity as may be required by them to save each of them harmless, then in
the absence of notice that such Certificate shall have been acquired by a bona
fide purchaser, the Owner Trustee on behalf of the Trust shall execute and the
Owner Trustee, or the Owner Trustee's authenticating agent, shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like tenor and denomination. In
connection with the issuance of any new Certificate under this Section, the
Owner Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 3.05 MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee shall
maintain in Chicago, Illinois, an office or offices or agency or agencies where
notices and demands to or upon the Owner Trustee in respect of the Certificate
and the Basic Documents may be served. The Owner Trustee's office located at 000
X. Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxx, 00000 shall be the corporate
trust office for such purposes. The Owner Trustee shall give prompt written
notice to the Depositor and to the Certificateholder of any change in the
location of any such office or agency.
SECTION 3.06 APPOINTMENT OF PAYING AGENT. Except during any period when
the Indenture Trustee is authorized and directed to do so under the Indenture
(i.e. prior to the termination of the Indenture), the Paying Agent shall make
distributions to the Certificateholder from the Collection Account pursuant to
Section 5.02 and shall report the amounts of such distributions to the Owner
Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Collection Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Paying Agent if
the Owner Trustee determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be the Owner Trustee and any co-paying
agent chosen by the Owner Trustee and acceptable to the Owner Trustee. The Owner
Trustee shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Owner Trustee. In the event that the Owner Trustee shall no longer
be the Paying Agent, the Owner Trustee shall appoint a successor to act as
Paying Agent (which shall be a bank or trust company). By executing this
Agreement, the Owner Trustee hereby agrees in its capacity as Paying Agent to
hold all sums, if any, held by it for payment to the Certificateholder in trust
for the benefit of the Certificateholder until such sums are paid to the
Certificateholder. The Owner Trustee shall cause such successor Paying Agent or
any additional Paying Agent appointed by the Owner Trustee to execute and
deliver to the Owner Trustee an instrument in which such successor Paying Agent
or additional Paying Agent shall agree with the Owner Trustee that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Certificateholder in trust for the
benefit of the Certificateholder until such sums shall be paid to such
Certificateholder. The Paying Agent shall return all unclaimed funds to the
Owner Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Owner Trustee. The provisions of
Sections 7.01, 7.03, 7.04, 7.05, 7.06, 8.01 and 8.02 shall apply to the Owner
Trustee also in its role as Paying Agent, for so long as the Owner Trustee
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shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE OR THE CERTIFICATEHOLDER
SECTION 4.01 PRIOR NOTICE TO THE CERTIFICATEHOLDER WITH RESPECT TO
CERTAIN MATTERS. With respect to the following matters, the Owner Trustee shall
not take action unless at least 30 days before the taking of such action (or
such shorter period as shall be agreed to in writing by the Certificateholder),
the Owner Trustee shall have notified the Certificateholder in writing of the
proposed action and the Certificateholder shall not have notified the Owner
Trustee in writing prior to the 30th day (or such agreed upon shorter period)
after such notice is given that the Certificateholder has withheld consent or
provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims
or lawsuits brought in connection with the collection of the Receivables) and
the compromise of any action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for collection of
the Receivables);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Business Trust
Statute);
(c) the amendment of the Indenture, whether or not by a Supplemental
Indenture, in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture, whether or not by a Supplemental
Indenture, in circumstances where the consent of any Noteholder is not required
but such amendment materially adversely affects the interest of the
Certificateholder;
(e) the amendment, change or modification of the Administration
Agreement, other than to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially adversely
affect the interests of the Certificateholder; or
(f) the appointment (i) pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee and (ii) any consent by the Note
Registrar, Paying Agent or Indenture Trustee to the assignment of its respective
obligations under the Indenture or this Agreement, as applicable.
SECTION 4.02 ACTION BY THE CERTIFICATEHOLDER WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholder, to (a) remove the Administrator pursuant to Section 8
of the Administration Agreement, (b) appoint a successor Administrator pursuant
to Section 8 of the Administration Agreement, (c) remove the Servicer pursuant
to Section 8.01 of the Sale and Servicing Agreement or (d) except as expressly
provided in the Basic Documents, sell the Receivables after the termination of
the Indenture.
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The Owner Trustee shall take the actions referred to in the preceding sentence
only upon written instructions signed by the authorized representative of the
Certificateholder.
SECTION 4.03 ACTION WITH RESPECT TO BANKRUPTCY. The Owner Trustee shall
not have the power to commence a voluntary proceeding in bankruptcy relating to
the Trust without the prior approval of the Certificateholder and the delivery
to the Owner Trustee by the Certificateholder certifying that the
Certificateholder reasonably believes that the Trust is insolvent.
SECTION 4.04 RESTRICTIONS ON THE CERTIFICATEHOLDER'S POWER. The
Certificateholder shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligations of the Trust or of the Owner Trustee under any of the Basic
Documents or would be contrary to Section 2.03 nor shall the Owner Trustee be
obligated to follow any such direction, if given.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01 ESTABLISHMENT OF COLLECTION ACCOUNT AND PAYAHEAD ACCOUNT.
(a) The Owner Trustee, for the benefit of the Certificateholder, shall
establish and maintain, or shall cause to be established and maintained, in the
name of the Trust (or in such other name as shall be specified in the Sale and
Servicing Agreement), the Collection Account and the Payahead Account. Each such
account shall be established and maintained as an Eligible Deposit Account, and,
subject to provisions of the Sale and Servicing Agreement and the Indenture,
bearing a designation clearly indicating that, subject to Section 5.01(b), the
funds deposited therein are held by the Trust for the benefit of the
Certificateholder, in each case in accordance with Section 5.01 in the Sale and
Servicing Agreement.
Subject to Section 5.01(b), the Owner Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the Collection
Account and the Payahead Account and in all proceeds thereof (other than any net
investment earnings on Eligible Investments held therein). Except as otherwise
expressly provided herein, the Collection Account and the Payahead Account shall
be under the sole dominion and control of the Owner Trustee for the benefit of
the Certificateholder. If, at any time, the Collection Account or the Payahead
Account ceases to be an Eligible Deposit Account, the Owner Trustee (or the
Administrator on behalf of the Owner Trustee, if the Collection Account is not
then held by the Owner Trustee or an affiliate thereof) shall within 10 Business
Days establish a new equivalent Eligible Deposit Account and shall transfer any
cash and/or any investments to such new account.
(b) Notwithstanding the foregoing, concurrently with, the execution and
delivery of any Indenture pursuant to which the Notes are issued, the Servicer
shall establish and maintain, or shall cause to be established and maintained,
at the direction of the Depositor, accounts of the Trust ("Trust Accounts") in
the name of and under the control of the Indenture Trustee for the benefit of
the Holders of the Notes, in each case in accordance with Section 5.01 of the
Sale and
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Servicing Agreement. The Owner Trustee shall thereupon promptly transfer any
cash and/or investments then on deposit in the equivalent Trust Accounts
maintained by it pursuant to Section 5.01(a) to the newly established Trust
Accounts on the terms and conditions set forth in the Sale and Servicing
Agreement and the Indenture. The Indenture Trustee will be obligated to transfer
back to the equivalent Trust Accounts established pursuant to Section 5.01(a)
all funds or investments held or to be held in the Trust Accounts established
pursuant to this Section 5.01(b) on the Payment Date on which the Notes of all
Classes have been paid in full or the Indenture is otherwise terminated
(excluding any amounts to be retained for distribution in respect of Notes that
are not promptly delivered for payment on such Payment Date), and to take all
necessary or appropriate actions to transfer all right, title and interest of
the Indenture Trustee in such funds or investments and all proceeds thereof, to
the Owner Trustee for the benefit of the Certificateholder.
SECTION 5.02 APPLICATION OF AMOUNTS IN TRUST ACCOUNTS.
(a) For so long as any Notes are outstanding, on each Payment Date, the
Owner Trustee will take reasonable steps to determine that the Servicer has
properly delivered the Servicer's Certificate identifying how amounts on deposit
in the Trust Accounts are to be allocated and distributed and will instruct the
Indenture Trustee, or cause the Indenture Trustee to be instructed, to
distribute to the Certificateholder the amounts distributable thereto pursuant
to Section 5.06 of the Sale and Servicing Agreement and Section 3.01 of the
Indenture. From and after the date on which the Notes of all Classes have been
paid in full, on each Payment Date the Owner Trustee shall distribute to the
Certificateholder amounts on deposit in the Collection Account that are
distributable to the Certificateholder in accordance with the instructions of
the Servicer pursuant to Sections 5.06(c) and (d) of the Sale and Servicing
Agreement. Upon the release from the Lien of the Indenture of amounts on deposit
in any of the Trust Accounts or any other portion of the Owner Trust Estate, the
Owner Trustee will cause such property to be properly deposited into Trust
Accounts under the control of the Owner Trustee or distributed to the
Certificateholder in accordance with the provisions of this Agreement, as the
case may be.
(b) On each Payment Date, the Owner Trustee shall send to the
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 5.08 of the Sale and Servicing Agreement with respect to
such Payment Date.
(c) In the event that any withholding tax is imposed on the Trust's
distributions (or allocations of income) to the Certificateholder, such tax
shall reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Owner Trustee and Paying Agent are hereby
authorized and directed to retain from amounts otherwise distributable to the
Certificateholder sufficient funds for the payment of any tax that is legally
owed by the Trust (but such authorization shall not prevent the Owner Trustee
from contesting any such tax or the withholding requirement with respect to any
such tax in appropriate proceedings if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to the
Certificateholder shall be treated as cash distributed to the Certificateholder
at the time it is withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to any distribution (such as any distribution to a Non-U.S. Person), the
Owner Trustee may, in its sole discretion, withhold such amounts in accordance
with this paragraph (c). In the event that the
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Certificateholder wishes to apply for a refund of any such withholding tax, the
Owner Trustee shall reasonably cooperate with the Certificateholder in making
such claim so long as the Certificateholder agrees to reimburse the Owner
Trustee for any out-of-pocket expenses incurred in connection therewith.
SECTION 5.03 METHOD OF PAYMENT. Subject to Section 9.01(c),
distributions required to be made to the Certificateholder on any Payment Date
shall be made to the Certificateholder by wire transfer, in immediately
available funds, to the account of the Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided to the Owner Trustee appropriate written instructions at least
five Business Days prior to such Payment Date.
SECTION 5.04 ACCOUNTING AND REPORTS TO THE NOTEHOLDERS, THE
CERTIFICATEHOLDER, THE INTERNAL REVENUE SERVICE AND OTHERS. The Owner Trustee
shall (a) maintain (or cause to be maintained) the books of the Trust on a
calendar year basis on the accrual method of accounting, (b) deliver to the
Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required (including Schedule K-1) to
enable the Certificateholder to prepare its federal and state income tax
returns, (c) prepare (or cause to be prepared) and file any tax and information
returns, and fulfill any other reporting requirements, relating to the Trust, as
may be required by the Code and applicable Treasury Regulations (including
Treasury Regulation Section 1.6049-7), including causing such tax and
information returns to be signed in the manner required by law, (d) for any
period during which the beneficial ownership interests in the Trust are held by
more than one person, make such elections as may from time to time be required
or appropriate under any applicable state or federal statute or rule or
regulation thereunder so as to maintain the Trust's characterization as a
partnership for federal income tax purposes, and (e) collect or cause to be
collected any withholding tax as described in and in accordance with Section
5.02(c) with respect to income or distributions to the Certificateholder. The
Owner Trustee shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the Receivables. The
Owner Trustee shall not make the election provided under Section 754 of the
Code.
SECTION 5.05 SIGNATURE ON RETURNS; TAX MATTERS PARTNER.
(a) The Owner Trustee shall sign on behalf of the Trust the tax returns
of the Trust, unless applicable law requires the Certificateholder to sign such
documents, in which case such documents shall be signed by the Administrator,
pursuant to the power-of-attorney granted thereto pursuant to Section 2.04.
(b) For any period during which the beneficial ownership interests of
the Trust are held by more than one Person, the Certificateholder holding
Certificates evidencing the largest portion of the Certificates shall be
designated the "tax matters partner" of the Trust pursuant to Section
6231(a)(7)(A) of the Code and applicable Treasury Regulations, but hereby
delegates its powers and duties as such to the Administrator pursuant to the
power-of-attorney granted thereto pursuant to Section 2.04.
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ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01 GENERAL AUTHORITY. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment thereto, and, on behalf of the Trust, to direct the Indenture Trustee
to authenticate and deliver Class A-1 Notes in the aggregate principal amount of
$444,000,000, Class A-2 Notes in the aggregate principal amount of $387,000,000,
Class A-3 Notes in the aggregate principal amount of $457,000,000, Class A-4
Notes in the aggregate principal amount of $264,000,000 and to issue the
Revolving Liquidity Note. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust, pursuant to the Basic Documents.
SECTION 6.02 GENERAL DUTIES. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the Basic Documents to which the Trust is a
party and to administer the Trust in accordance with the provisions hereof and
of the Basic Documents and in the interest of the Certificateholder.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the 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 Basic Document, and the Owner Trustee shall not be held
liable for the default or failure of the Administrator to carry out such
obligations or fulfill such duties under the Administration Agreement.
SECTION 6.03 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 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, 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 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
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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 and the Basic Documents, no implied covenants or
obligations shall be read into this Agreement against the Owner Trustee,
the permissive right of the Owner Trustee to 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 Trust 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 the Basic Documents;
and
(iii) the Owner Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken in good
faith in accordance with the direction of the Certificateholder.
(e) 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.
(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 in such Receivable, the Owner Trustee shall
give prompt written notice to the Servicer, the Depositor and the Indenture
Trustee of such incorrectness. Pursuant to Section 4.08 of the Sale 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.
SECTION 6.04 NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to
15
otherwise take or refrain from taking any action under, or in connection with,
any Basic Document or otherwise contemplated hereby to which the Owner Trustee
is a party, except as expressly provided by the terms of this Agreement, any
Basic Document to which the Trust is a party or in any document or written
instruction received by the Owner Trustee pursuant to section 6.03. No implied
duties or obligations shall be read into this Agreement or any Basic Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or otherwise to perfect or maintain the perfection of any security interest or
lien granted to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any Basic
Document. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any liens
on any part of the Owner Trust Estate that result from actions by, or claims
against, the Owner Trustee that are not related to the ownership or the
administration of the Owner Trust Estate.
SECTION 6.05 NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Owner Trust Estate except (i) in accordance with the
powers granted to and the authority conferred upon the Owner Trustee pursuant to
this Agreement, (ii) in accordance with the Basic Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.03.
SECTION 6.06 RESTRICTIONS. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section
2.03 or (b) that, to the actual knowledge of the Owner Trustee, would result in
the Trust's becoming taxable as a corporation for Federal income tax purposes.
The Certificateholder shall not have the authority to and, by acceptance of an
ownership interest in the Certificate shall thereby be deemed to have covenanted
not to, direct the Owner Trustee to take action that would violate the
provisions of this Section.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01 RIGHTS OF OWNER TRUSTEE. Except as otherwise provided in
Article VI:
(a) in accordance with Section 7.04, the Owner Trustee may rely and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of an authorized signatory, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Administrator, as provided in the Administration Agreement, or the
Certificateholder, as provided herein;
(c) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement or the Sale and Servicing
Agreement, or to institute,
16
conduct or defend any litigation under this Agreement, or in relation to this
Agreement or the Sale and Servicing Agreement, at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Agreement or the Sale and Servicing Agreement, unless such Securityholders shall
have offered to the Owner Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or thereby;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes or the obligations of the Trust under
the Revolving Liquidity Note;
(e) the Owner Trustee shall not be bound to recalculate, reverify, or
make any investigation into the facts of matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in writing to
do so by the Certificateholder; provided, however, that if the payment within a
reasonable time to the Owner Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Owner Trustee, not reasonably assured to the Owner Trustee by the
security afforded to it by the terms of this Agreement, the Owner Trustee may
require reasonable indemnity against such cost, expense or liability as a
condition to so proceeding; the reasonable expense of every such examination
shall be paid by the Administrator or, if paid by the Owner Trustee, shall be
reimbursed by the Administrator upon demand; and nothing in this clause shall
derogate from the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors; and
(f) the Owner Trustee shall not be liable for the default or misconduct
of the Administrator, the Servicer, the Depositor, the Indenture Trustee or the
Holder of the Revolving Liquidity Note under any of the Basic Documents or
otherwise, and the Owner Trustee shall have no obligation or liability to
perform the obligations of the Trust under the Basic Documents that are required
to be performed by the Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture, the Servicer under the Sale and Servicing
Agreement or the Holder of the Revolving Liquidity Note under the Revolving
Liquidity Note Agreement.
SECTION 7.02 FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish
(a) to the Certificateholder promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents and (b) to Noteholders promptly upon
written request therefor, copies of the Sale and Servicing Agreement, the
Administration Agreement and the Trust Agreement.
SECTION 7.03 REPRESENTATIONS AND WARRANTIES. The Owner Trustee hereby
represents and warrants to the Depositor and for the benefit of the
Certificateholder, that:
(a) It is a national banking association duly organized and existing and
in good standing under the laws of the United States. It has full power,
authority and right to execute, deliver and perform its obligations under this
Agreement and each other Basic Document.
17
(b) It has taken all corporate action necessary to authorize the
execution and delivery of this Agreement and each other Basic Document, and this
Agreement and each other Basic Document has been executed and delivered by one
of its officers duly authorized to execute and deliver this Agreement and each
other Basic Document on its behalf.
(c) This Agreement constitutes the legal, valid and binding obligation
of the Owner Trustee, enforceable against it in accordance with its terms except
as the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
(d) It is authorized to exercise trust powers in the State of Delaware
as and to the extent contemplated herein and it has a principal place of
business in the State of Delaware.
SECTION 7.04 RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers or agents of the
relevant party, as to such fact or matter and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under the Basic Documents, the Owner
Trustee (i) may act directly or through its agents or attorneys pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents or attorneys if such agents
or attorneys shall have been selected by the Owner Trustee with reasonable care,
and (ii) may consult with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such persons and not contrary to this Agreement or any Basic Document.
SECTION 7.05 NOT ACTING IN INDIVIDUAL CAPACITY. In accepting the trusts
hereby created, U.S. Bank Trust National Association acts solely as Owner
Trustee hereunder and not in its individual capacity. Except with respect to a
claim based on the failure of the Owner Trustee to perform its duties under this
Agreement or based on the Owner Trustee's willful misconduct, bad faith or
negligence, no recourse shall be had for any claim based on any provision of
this Agreement, the Notes, the Revolving Liquidity Note or the Certificate, or
based on rights obtained through the assignment of any of the foregoing, against
the institution serving as the Owner Trustee in its individual capacity. The
Owner Trustee shall not have any personal obligation, liability or duty
whatsoever to any Securityholder or any other Person with respect to any such
claim, and any
18
such claim shall be asserted solely against the Trust or any indemnitor who
shall furnish indemnity as provided in this Indenture.
SECTION 7.06 OWNER TRUSTEE NOT LIABLE FOR THE CERTIFICATE OR
RECEIVABLES. The Owner Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificate, the Notes or the Revolving
Liquidity Note (other than the execution by the Owner Trustee on behalf of the
Trust of, and the certificate of authentication on, the Certificate, and the
direction of the Owner Trustee, on behalf of the Trust, to the Indenture Trustee
relating to the execution of the Notes and the Revolving Liquidity Note). The
Owner Trustee shall have no obligation to perform any of the duties of the
Servicer or Administrator unless explicitly set forth in this Agreement.
The Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
the Certificate, the Notes, the Revolving Liquidity Note or any Receivable, any
ownership interest in any Financed Vehicle, or the maintenance of any such
ownership interest, or for or with respect to the efficacy of the Trust or its
ability to generate the payments to be distributed to Securityholders under this
Agreement and the Indenture, including without limitation the validity of the
assignment of the Receivables to the Trust or of any intervening assignment; the
existence, condition, location and ownership of any Receivable or Financed
Vehicle; the existence and enforceability of any physical damage or credit life
or credit disability insurance; the existence and contents of any retail
installment sales contract or any computer or other record thereof; the
completeness of any retail installment sales contract; the performance or
enforcement of any retail installment sales contract; the compliance by the
Trust with any covenant or the breach by the Trust of any warranty or
representation made under this Agreement or in any related document and the
accuracy of any such warranty or representation prior to the Owner Trustee's
receipt of notice or other discovery of any noncompliance therewith or any
breach thereof; the acts or omissions of the Trust or the Servicer; or any
action by the Owner Trustee taken at the instruction of the Certificateholder,
provided, however, that the foregoing shall not relieve the Owner Trustee of its
obligation to perform its duties under this Agreement.
The Owner Trustee shall not be accountable for: (i) the use or
application by the Depositor of the proceeds of the sale of the Notes; (ii) the
use or application by the Certificateholder of the Certificate or the proceeds
of the Certificate; (iii) the use or application by the holder of any Notes of
any of the Notes or of the proceeds of such Notes; (iv) the use or application
by the Servicer of any funds obtained under the Revolving Liquidity Note; or (v)
the use or application of any funds paid to the Servicer in accordance with the
Sale and Servicing Agreement.
SECTION 7.07 OWNER TRUSTEE MAY OWN THE NOTES. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of the Notes
and may deal with the Depositor, the Company, the Administrator, the Indenture
Trustee and the Servicer in banking or other transactions with the same rights
as it would have if it were not Owner Trustee.
SECTION 7.08 SALES FINANCE COMPANY LICENSES. The Owner Trustee (or the
Administrator on its behalf, pursuant to Section 1(b) of the Administration
Agreement) shall cause the Trust to use its best efforts to maintain the
effectiveness of all licenses required under the Pennsylvania Motor Vehicle
Sales Finance Act and Maryland Sales Finance Company licensing regulations in
connection with this Agreement and the Basic Documents and the
19
transactions contemplated hereby and thereby until such time as the Trust shall
terminate in accordance with the terms hereof.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01 OWNER TRUSTEE'S FEES AND EXPENSES. The Trust shall pay or
shall cause the Servicer to pay to the Owner Trustee from time to time
compensation for its services as have been separately agreed upon before the
date hereof, and the Owner Trustee shall be entitled to be reimbursed by the
Administrator for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
SECTION 8.02 INDEMNIFICATION. The Administrator shall, pursuant to the
Administration Agreement and the following provisions, reimburse the Owner
Trustee for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Owner Trustee's agents, counsel, accountants
and experts directly related to its services hereunder ("Expenses") The
Administrator shall indemnify or shall cause the Servicer to indemnify the Owner
Trustee against any and all loss, liability or expense (including attorneys'
fees) incurred by it in connection with the administration of this trust and the
performance of its duties hereunder. The Owner Trustee shall notify the
Administrator and the Servicer promptly of any claim for which it may seek
indemnity. Failure by the Owner Trustee to so notify the Administrator and the
Servicer shall not relieve the Administrator or the Servicer of its obligations
hereunder, where such failure shall not affect the Administrator's or Servicer's
defenses in respect thereof. In case any such action is brought against the
Owner Trustee under this Section 8.02 and it notifies the Administrator of the
commencement thereof, the Administrator will assume the defense thereof, with
counsel reasonably satisfactory to the Owner Trustee (who may, unless there is,
as evidenced by an opinion of counsel to the Owner Trustee stating that there is
an unwaivable conflict of interest, be counsel to the Administrator), and the
Administrator will not be liable to the Owner Trustee under this Section for any
legal or other expenses subsequently incurred by the Owner Trustee in connection
with the defense thereof, other than reasonable costs of investigation. Neither
the Administrator nor the Servicer need reimburse any expense or indemnify
against any loss, liability or expense incurred by the Owner Trustee through the
Owner Trustee's own willful misconduct, negligence or bad faith.
SECTION 8.03 PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid to the
Owner Trustee pursuant to this Article VIII from assets in the Owner Trust
Estate shall be deemed not to be a part of the Owner Trust Estate immediately
after such payment.
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ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01 TERMINATION OF TRUST AGREEMENT.
(a) This Agreement (other than Article VIII) shall terminate and the
Trust shall dissolve and be of no further force or effect, upon the earliest of
(i) the maturity or other liquidation of the last Receivable (or other asset) in
the Owner Trust Estate and the final distribution by the Owner Trustee of all
moneys or other property or proceeds of the Owner Trust Estate in accordance
with the terms of this Agreement, the Indenture and the Sale and Servicing
Agreement (including, but not limited to, any property and proceeds to be
deposited in the Collection Account pursuant to Sections 3.02, 4.08, 5.02, 5.04,
5.05, 5.06 or 9.01 of the Sale and Servicing Agreement or to be released by the
Indenture Trustee from the Lien of the Indenture pursuant to Section 10.01 or
10.02 of the Indenture), (ii) the payment or distribution to all Securityholders
of all amounts specified in Sections 3.02, 4.08, 5.02, 5.04, 5.05, 5.06 or 9.01
of the Sale and Servicing Agreement or (iii) the dissolution of the Trust that
results from the occurrence of an Insolvency Event with respect to the Depositor
as provided in Section 9.02.
(b) Except as provided in Section 9.01(a), the Certificateholder shall
not be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date
upon which the Certificateholder shall surrender the Certificate to the Paying
Agent for payment of the final distributions and cancellation, shall be given by
the Owner Trustee to the Certificateholder mailed within five Business Days of
receipt of notice of such termination from the Servicer given pursuant to
Section 10.03 of the Sale and Servicing Agreement, stating (i) the Payment Date
upon or with respect to which final payment of the Certificate shall be made
upon presentation and surrender of the Certificate at the office of the Paying
Agent therein designated, (ii) the amount of any such final payment and (iii)
that payment to be made on such Payment Date will be made only upon presentation
and surrender of the Certificate at the office of the Paying Agent therein
specified. The Owner Trustee shall give such notice to the Paying Agent (if
other than the Owner Trustee) at the time such notice is given to the
Certificateholder. Upon presentation and surrender of the Certificate, the
Paying Agent shall cause to be distributed to the Certificateholder amounts
distributable on such Payment Date pursuant to Section 5.02.
In the event that the Certificateholder shall not surrender the
Certificate for cancellation within six months after the date specified in the
above mentioned written notice, the Owner Trustee shall give a second written
notice to the Certificateholder to surrender the Certificate for cancellation
and receive the final distribution with respect thereto. If within one year
after the second notice the Certificate shall not have been surrendered for
cancellation, the Owner Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the Certificateholder concerning
surrender of its Certificate, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Agreement. Any funds
remaining in the Trust after exhaustion of such remedies shall be distributed by
the Owner Trustee to the Depositor.
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(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3820 of the Business Trust Statute.
SECTION 9.02 DISSOLUTION UPON INSOLVENCY OF THE DEPOSITOR. In the event
that an Insolvency Event shall occur with respect to the Depositor, this
Agreement shall be terminated in accordance with Section 9.01 90 days after the
date of such Insolvency Event, unless, before the end of such 90-day period, the
Owner Trustee shall have received written instructions from the Indenture
Trustee (or the Indenture Trustee acting on behalf of the Class A Notes pursuant
to Section 5.04(c) of the Indenture) or the Holders of at least 51% of the
Outstanding Amount of the Class A Notes acting together as a single Class
(excluding for such purposes the outstanding principal amount of any Class A
Notes held of record or beneficially owned by TMCC, TAFR LLC or any of their
Affiliates) or if only the Certificate is then outstanding, the
Certificateholder, to the effect that the Receivables should not be liquidated
and the Trust should not be terminated. Promptly after the occurrence of any
Insolvency Event with respect to the Depositor, (A) the Depositor shall give the
Indenture Trustee, the Owner Trustee and each Rating Agency written notice of
such Insolvency Event and (B) upon the receipt of such written notice from the
Depositor, the Indenture Trustee and Owner Trustee, respectively, shall give
prompt written notice thereof to the Noteholders and the Certificateholder;
provided, however, that any failure to give a notice required by this sentence
to a party not then entitled to instruct the Owner Trustee that the dissolution
should not occur shall not prevent or delay, in any manner, a termination of the
Trust pursuant to the first sentence of this Section 9.02. Upon a termination
pursuant to this Section 9.02, the Owner Trustee promptly shall, or if any Notes
are outstanding, the Indenture Trustee (or relevant Indenture Trustee for the
relevant Class or Classes of Notes pursuant to Section 5.04(e) of the Indenture)
shall, promptly sell the assets of the Trust (other than funds on deposit in the
Collection Account, Payahead Account and Reserve Fund) in a commercially
reasonable manner and on commercially reasonable terms and, if any Notes are
outstanding, in accordance with the terms of the Indenture. The proceeds of such
a sale of the assets of the Trust shall be treated as collections under the Sale
and Servicing Agreement and shall be deposited in the Collection Account and
distributed pursuant to the terms of Section 5.06 of the Sale and Servicing
Agreement.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be an entity having a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by federal or
state authorities. If such entity shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section 10.01, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Owner Trustee shall resign
immediately in the manner and with the effect specified in Section 10.02.
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SECTION 10.02 RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Depositor, the Servicer and the Indenture
Trustee. Upon receiving such notice of resignation, the Servicer shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate, one copy
of which shall be delivered to each of the resigning Owner Trustee and the
successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed or shall not have accepted such appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign
promptly, or if at any time the Owner Trustee shall be legally unable to act, or
shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or
of its property shall be appointed, or any public officer shall take charge or
control of the Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Administrator may remove
the Owner Trustee by written instrument to such effect delivered to the Owner
Trustee, the Depositor and the Indenture Trustee. If the Administrator shall
remove the Owner Trustee under the authority of the immediately preceding
sentence, the Servicer shall promptly appoint a successor Owner Trustee by
written instrument in duplicate, one copy of which instrument shall be delivered
to each of the outgoing Owner Trustee so removed and the successor Owner Trustee
and shall pay or cause to be paid all fees, expenses and other compensation then
owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
SECTION 10.03 SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Administrator and the predecessor Owner Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
meet the criteria for eligibility set forth in Section 10.01.
23
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice of the successor of such Owner
Trustee to the Certificateholder, the Indenture Trustee, the Noteholders and the
Rating Agencies. If the Administrator fails to mail such notice within 10 days
after acceptance of appointment by the successor Owner Trustee, the successor
Owner Trustee shall cause such notice to be mailed at the expense of the
Administrator.
SECTION 10.04 MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such corporation shall be eligible pursuant to Section 10.01, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided,
further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
SECTION 10.05 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 25 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provision and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised
or performed by the Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to
be performed, the Owner Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers,
duties, and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
24
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as if given to each of them. Each separate trustee and co-trustee, upon its
acceptance of the powers and duties conferred thereto under this Agreement,
shall be vested with the estates or specified in its instrument of appointment,
either jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the liability
of, or affording protection to, the Owner Trustee. Each such instrument shall be
filed with the Owner Trustee and a copy thereof given to the Administrator.
SECTION 10.06 POWER OF ATTORNEY FOR CO-TRUSTEE OR SEPARATE TRUSTEE. Any
separate trustee or co-trustee may at any time appoint the Owner Trustee as its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 SUPPLEMENTS AND AMENDMENTS. This Agreement may be amended
by the Depositor, the Owner Trustee, with prior written notice to the Rating
Agencies, without the consent of any of the Noteholders, the Certificateholder
or the Holder of the Revolving Liquidity Note, to cure any ambiguity, to correct
or supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions in
this Agreement or of modifying in any manner the rights of the Noteholders, the
Certificateholder or the Holder of the Revolving Liquidity Note, if (a) the
Indenture Trustee and Owner Trustee receive an Opinion of Counsel to the effect
that such action will not adversely affect in any material respect the interests
of any Noteholder, the Certificateholder or the Holder of the Revolving
Liquidity Note, or (b) the Indenture Trustee or Owner Trustee, as the case may
be, have received the consent of (i) the Holders of at least 51% of the
Outstanding Amount of the affected Class A Notes acting as a single Class
(excluding for such purposes the outstanding principal amount of any Class A
Notes held of record or beneficially owned by TMCC, TAFR LLC or any of their
Affiliates) or (ii) if the Class A Notes have been paid in full, the
Certificateholder, if affected, provided, however, that no such amendment made
pursuant to clause (b) above shall (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that shall be required to be made for the benefit
of the Noteholders, the Certificateholder or the Holder of the Revolving
25
Liquidity Note or (ii) reduce the aforesaid percentage of the Outstanding Amount
of the Notes or the Certificate required to consent to any such amendment,
without the consent of the Holders of all the affected Notes and the
Certificate.
This Agreement may also be amended from time to time by the Depositor,
the Owner Trustee and the Indenture Trustee without the consent of any of the
Noteholders, the Certificateholder or the Holder of the Revolving Liquidity Note
for purposes of changing the formula for determining the Specified Reserve
Account Balance, the manner in which the Reserve Account is funded (e.g. to
allow the deposit of cash therein by the Depositor), changing the remittance
schedule for the deposit of collections in the Collection Account or Payahead
Account or changing the definition of Eligible Investments, if (a) the Owner
Trustee and Indenture Trustee (i) have received from each Rating Agency that has
rated any outstanding Class of Notes (excluding Xxxxx'x) of its written
confirmation that such amendment will not result in the qualification,
withdrawal or modification of the rating then assigned by such Rating Agency to
any Class of Notes and (ii) have provided Xxxxx'x with 10 days prior written
notice of such amendment and Xxxxx'x shall not have notified the Owner Trustee
and the Indenture Trustee that such amendment might or would result in the
qualification, reduction or withdrawal of the rating it has currently assigned
to any Class of Notes, without the consent of any of the Noteholders, the
Certificateholder or the Holder of the Revolving Liquidity Note, or (b) the
Indenture Trustee or Owner Trustee, as the case may be, have received the
consent of (i) the Holders of at least 51% of the Outstanding Amount of the
Class A Notes acting as a single Class (excluding for such purposes the
outstanding principal amount of any Class A Notes held of record or beneficially
owned by TMCC, TAFR LLC or any of their Affiliates) or (ii) after the Class A
Notes have been paid in full, the Certificateholder; provided, however, that no
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders, the Certificateholder or the Holder of the Revolving Liquidity Note
or (b) reduce the aforesaid percentage of the Outstanding Amount of the Notes
required to consent to any such amendment, without the consent of the Holders of
all the affected Notes and the Certificate.
Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to the Certificateholder, the Holder of the Revolving Liquidity Note,
the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of the Certificateholder, the
Noteholders, the Holder of the Revolving Liquidity Note or the Indenture Trustee
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any other
consents of Certificateholder provided for in this Agreement or in any other
Basic Document) and of evidencing the authorization of the execution thereof by
the Certificateholder shall be subject to such reasonable requirements as the
Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
26
Prior to the execution of any amendment to this Agreement or any
amendment to the Certificate of Trust, the Owner Trustee shall be entitled to
receive and rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement. The Owner Trustee shall
not be obligated to enter into any such amendment which affects the Owner
Trustee's own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.02 NO LEGAL TITLE TO OWNER TRUST ESTATE IN THE
CERTIFICATEHOLDER. The Certificateholder shall not have legal title to any part
of the Owner Trust Estate. The Certificateholder shall be entitled to receive
distributions with respect to its fractional undivided ownership interest
therein only in accordance with Articles V and IX. No transfer, by operation of
law or otherwise, of any right, title, or interest of the Certificateholder to
and in its ownership interest in the Owner Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION 11.03 LIMITATIONS ON RIGHTS OF OTHERS. Except for Section 2.06,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Depositor, TMCC (as Servicer and initial Holder of the Revolving
Liquidity Note), the Certificateholder, the Holder of the Revolving Liquidity
Note, the Administrator and, to the extent expressly provided herein the
Indenture Trustee, the Noteholders, and nothing in this Agreement, (other than
Section 2.06), whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Owner Trust
Estate or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 11.04 NOTICES.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon receipt
by the intended recipient or three Business Days after mailing if mailed by
certified mail, postage prepaid (except that notice to the Owner Trustee shall
be deemed given only upon actual receipt by the Owner Trustee), if to the Owner
Trustee, addressed to the Corporate Trust Office; if to the Depositor, addressed
to Toyota Auto Finance Receivables LLC, 00000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: President; if, to the Trust, addressed to
Toyota Auto Receivables 2002-B Owner Trust, 00000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Treasury Department: Vice President,
Treasury; or, as to each party, at such other address as shall be designated by
such party in a written notice to each other party.
(b) Any notice required or permitted to be given to the
Certificateholder shall be given by first-class mail, postage prepaid, at the
address provided by the Certificateholder. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder receives such notice.
SECTION 11.05 SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid or unenforceable in any jurisdiction, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no
27
way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificate or the rights of the Holder thereof.
SECTION 11.06 COUNTERPARTS. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed to
be an original, and all of which shall constitute but one and the same
instrument.
SECTION 11.07 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee, the Certificateholder and their respective
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the Depositor or the
Certificateholder shall bind the successors and assigns thereof.
SECTION 11.08 NO PETITION. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, hereby
covenants and agrees, and the Indenture Trustee and any Noteholder (excluding
TMCC, TAFR LLC or any of their Affiliates) by accepting the benefits of this
Agreement, are thereby deemed to covenant and agree that they will not at any
time prior to the date one year plus one day after the date on which this
Agreement is terminated institute against the Depositor or the Trust, or join in
any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law. This Section
11.08 shall survive the termination of this Agreement or the termination of the
Owner Trustee under this Agreement.
SECTION 11.09 NO RECOURSE. The Certificateholder by accepting the
Certificate acknowledges that the Certificate represents a beneficial interest
in the Trust only and does not represent an interest in or obligation of the
Depositor, TMCC (in any capacity), the Administrator, the Owner Trustee, the
Indenture Trustee or any Affiliate thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in the Certificate or the Basic Documents.
SECTION 11.10 HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11 GOVERNING LAW. THIS AGREEMENT 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.
SECTION 11.12 TMCC PAYMENT OBLIGATION. The parties hereto acknowledge
and agree that, pursuant to the Sale and Servicing Agreement and the following
provisions, the Servicer shall be responsible for payment of the Administrator's
fees under the Administration Agreement and shall reimburse the Administrator
for all expenses and liabilities of the Administrator incurred thereunder. In
addition, the parties hereto acknowledge and agree that, pursuant to the Sale
and Servicing Agreement and the following provisions, the Servicer shall be
responsible for
28
the payment of all fees and expenses of the Trust, the Owner Trustee and the
Indenture Trustee paid by any of them in connection with any of their
obligations under the Basic Documents to obtain or maintain any required license
under the Pennsylvania Motor Vehicle Sales Finance Act. The parties hereto
covenant and agree that neither of them shall look to the other for payment of
any such fees or expenses.
29
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
TOYOTA AUTO FINANCE RECEIVABLES LLC,
Depositor
By: /s/ XXXXX XXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxx
Title: President
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By: /s/ XXXXXXX X. XXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
S-1
EXHIBIT A
FORM OF CERTIFICATE EVIDENCING
SUBORDINATED SELLER'S INTEREST
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER, THE ADMINISTRATOR, TMCC, TAFR
LLC OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED
BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES. THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THE
TRUST AGREEMENT.
NUMBER R-1
TOYOTA AUTO RECEIVABLES 2002-B OWNER TRUST
SUBORDINATED SELLER'S INTEREST
THIS CERTIFIES THAT TOYOTA AUTO FINANCE RECEIVABLES LLC is the
registered owner of 100% of the nonassessable, fully-paid, fractional undivided
interest in Toyota Auto Receivables 2002-B Owner Trust (the "Trust") formed by
TAFR LLC.
The Trust was created pursuant to a Trust Agreement dated as of April
19, 2002, between TAFR LLC as depositor (the "Depositor") and U.S. Bank Trust
National Association, a national banking association, as Owner Trustee (the
"Owner Trustee"), as amended and supplemented by the Amended and Restated Trust
Agreement dated as of May 1, 2002 (as so amended, the "Trust Agreement"),
between the Depositor and the Owner Trustee, a summary of certain of the
pertinent provisions of which is set forth below. Capitalized terms used herein
and not otherwise defined have the meanings ascribed thereto in the Trust
Agreement, the Sale and Servicing Agreement dated as of May 1, 2002 (the "Sale
and Servicing Agreement"), among the Trust, the Depositor and TMCC, as servicer
(the "Servicer") or the Indenture dated as of May 1, 2002 (the "Indenture"),
among the Trust, the Depositor and TMCC, as the case may be.
This Certificate is the duly authorized Certificate (the "Certificate")
evidencing the nonassessable, fully-paid, fractional undivided interest in the
Trust issued pursuant to the Trust Agreement. Certain debt instruments
evidencing obligations of the Trust have been issued under an Indenture dated as
of May 1, 2002, between the Trust and The Bank of New York, as indenture trustee
(the "Indenture Trustee"), consisting of four classes of Notes designated as
"1.91375% Asset Backed Notes, Class A-1," "2.79% Asset Backed Notes, Class A-2,"
"3.76%
A-1
Asset Backed Notes, Class A-3," "4.39% Asset Backed Notes, Class A-4"
(collectively, the "Notes") and a Revolving Liquidity Note issued pursuant to
the Revolving Liquidity Note Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement. The
holder of this Certificate, by virtue of its acceptance hereof, assents to and
is bound by all of the provisions of the Trust Agreement.
The Trust includes a pool of retail installment sale contracts secured
by new and used automobiles and light duty trucks (the "Receivables"), all
monies due thereunder on or after April 1, 2002, in the case of Precomputed
Receivables or received after such date in the case of Simple Interest
Receivables, security interests in the vehicles financed thereby, certain bank
accounts and the proceeds thereof, proceeds from claims on certain insurance
policies and certain other rights under the Trust Agreement and the Sale and
Servicing Agreement and all proceeds of the foregoing.
It is the intent of the Depositor, TMCC and the Certificateholders that,
for purposes of federal income tax, state and local income tax, any state single
business tax and any other income taxes, the Trust will be treated as a division
or branch of the Person holding the beneficial interests in the Trust for any
period during which the beneficial interests in the Trust are held by one
person, and will be treated as a partnership, and the Certificateholders will be
treated as partners in that partnership, for any period during which the
beneficial ownership interests in the Trust are held by more than one person.
For any such period during which the beneficial ownership interests in the Trust
are held by more than one person, each Certificateholder, by acceptance of a
Certificate or any beneficial interest on a Certificate, agrees to treat, and to
take no action inconsistent with the treatment of, the Certificates as
partnership interests in the Trust for such tax purposes.
Under the Trust Agreement, there will be distributed to the Holder
hereof on the 15th day of each month or, if such 15th day is not a Business Day,
the next Business Day, (each, a "Payment Date"), commencing on June 17, 2002,
the amounts to be distributed to Certificateholder on such Payment Date in
respect of amounts distributable to the Certificateholder pursuant to Section
5.06 of the Sale and Servicing Agreement.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders and the Holder of the Revolving Liquidity Note as
described in the Sale and Servicing Agreement and the Indenture.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder without the presentation or surrender of this Certificate or
the making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in Wilmington, Delaware or the Borough of Manhattan, The City of New
York.
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Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE 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.
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IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
Dated: _________ __, 2002 TOYOTA AUTO RECEIVABLES 2002-B
OWNER TRUST
By: U.S. Bank Trust National Association,
not in its individual capacity but
solely as Owner Trustee
By:
-------------------------------------
Authorized Signatory
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OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
U.S. BANK TRUST NATIONAL ASSOCIATION, not
in its individual capacity but solely as
Owner Trustee
By: _____________________________________
Authorized Signatory
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(REVERSE OF CERTIFICATE)
The holder of this Certificate, by accepting an interest in this
Certificate, acknowledges that this Certificate represents a beneficial interest
in the Trust only and does not represent any interest in or obligation of the
Depositor, TMCC (in any capacity), the Administrator, the Owner Trustee, the
Indenture Trustee or any Affiliate thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in this Certificate or the Basic Documents. In addition, this
Certificate is not guaranteed by any governmental agency or instrumentality and
is limited in right of payment to certain collections with respect to the
Receivables (and certain other amounts), all as more specifically set forth
herein and in the Sale and Servicing Agreement. A copy of each of the Sale and
Servicing Agreement and the Trust Agreement may be examined during normal
business hours at the principal office of the Depositor, and at such other
places, if any, designated by the Depositor, by the Certificateholder upon
written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholder by the Depositor and the Owner
Trustee, with prior written notice to the Rating Agencies, without the consent
of any of the Noteholders, the Certificateholder or the Holder of the Revolving
Liquidity Note, to cure any ambiguity, to correct or supplement any provisions
in the Trust Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in the Trust
Agreement or of modifying in any manner the rights of the Noteholders, the
Certificateholder or the Holder of the Revolving Liquidity Note, if (a) the
Indenture Trustee and Owner Trustee receive an Opinion of Counsel to the effect
that such action will not adversely affect in any material respect the interests
of any Noteholder, the Certificateholder or the Holder of the Revolving
Liquidity Note, or (b) the Indenture Trustee or Owner Trustee, as the case may
be, have received the consent of (i) the Holders of at least 51% of the
Outstanding Amount of the affected Class A Notes acting as a single Class
(excluding for such purposes the outstanding principal amount of any Class A
Notes held of record or beneficially owned by TMCC, TAFR LLC or any of their
Affiliates) or (ii) if the Class A Notes have been paid in full, the
Certificateholder, if affected, provided, however, that no such amendment made
pursuant to clause (b) above shall (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that shall be required to be made for the benefit
of the Noteholders, the Certificateholder or the Holder of the Revolving
Liquidity Note or (ii) reduce the aforesaid percentage of the Outstanding Amount
of the Notes or the Certificate required to consent to any such amendment,
without the consent of the Holders of all the affected Notes and the
Certificate.
The Trust Agreement may also be amended from time to time by the
Depositor, the Owner Trustee and the Indenture Trustee without the consent of
any of the Noteholders, the Certificateholder or the Holder of the Revolving
Liquidity Note for purposes of changing the formula for determining the
Specified Reserve Account Balance, the manner in which the Reserve Account is
funded (e.g. to allow the deposit of cash therein by the Depositor), changing
the remittance schedule for the deposit of collections in the Collection Account
or Payahead Account or changing the definition of Eligible Investments, if (a)
the Owner Trustee and Indenture Trustee (i) have received from each Rating
Agency that has rated any outstanding Class of Notes (excluding Xxxxx'x) of its
written confirmation that such amendment will not
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result in the qualification, withdrawal or modification of the rating then
assigned by such Rating Agency to any Class of Notes and (ii) have provided
Xxxxx'x with 10 days prior written notice of such amendment and Xxxxx'x shall
not have notified the Owner Trustee and the Indenture Trustee that such
amendment might or would result in the qualification, reduction or withdrawal of
the rating it has currently assigned to any Class of Notes, without the consent
of any of the Noteholders, the Certificateholder or the Holder of the Revolving
Liquidity Note, or (b) the Indenture Trustee or Owner Trustee, as the case may
be, have received the consent of (i) the Holders of at least 51% of the
Outstanding Amount of the Class A Notes acting as a single Class (excluding for
such purposes the outstanding principal amount of any Class A Notes held of
record or beneficially owned by TMCC, TAFR LLC or any of their Affiliates) or
(ii) after the Class A Notes have been paid in full, the Certificateholder;
provided, however, that no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that shall be required to be made for
the benefit of the Noteholders, the Certificateholder or the Holder of the
Revolving Liquidity Note or (b) reduce the aforesaid percentage of the
Outstanding Amount of the Notes required to consent to any such amendment,
without the consent of the Holders of all the affected Notes and the
Certificate.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to the
Certificateholder of all amounts required to be paid to it pursuant to the Trust
Agreement and the Sale and Servicing Agreement and the disposition of all
property held as part of the Owner Trust Estate. TMCC, as servicer of the
Receivables under the Sale and Servicing Agreement, or any successor servicer,
may at its option purchase the Owner Trust Estate at a price specified in the
Sale and Servicing Agreement, and any such purchase of the Receivables and other
property of the Trust will effect early retirement of the Certificate; however,
such right of purchase is exercisable only after the last day of the Collection
Period as of which the Pool Balance is less than or equal to 10% of the Original
Pool Balance.
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