EXHIBIT 4.4
TOYOTA AUTO RECEIVABLES 2001-B OWNER TRUST
(a Delaware Business Trust)
--------------------------------------
AMENDED AND RESTATED TRUST AGREEMENT
between
TOYOTA AUTO FINANCE RECEIVABLES LLC,
as Depositor,
and
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
as Owner Trustee
----------------------------------------------
Dated as of April 1, 2001
TABLE OF CONTENTS
PAGE
----
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............................9
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
-i-
PAGE
----
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
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
-ii-
PAGE
----
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01 Termination of Trust Agreement.............................................21
Section 9.02 Dissolution upon Insolvency of the Depositor...............................22
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
-iii-
EXHIBITS
EXHIBIT A FORM OF CERTIFICATE.......................................A-1
-iv-
AMENDED AND RESTATED TRUST AGREEMENT dated as of April 1,
2001, by and between TOYOTA AUTO FINANCE RECEIVABLES LLC, a Delaware limited
liability company, as depositor, and FIRST UNION TRUST COMPANY, 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 March 23, 2001, by and between TOYOTA AUTO FINANCE
RECEIVABLES LLC, a Delaware limited liability company, as depositor, FIRST UNION
TRUST COMPANY, 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 April 1, 2001, 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.
"ASSIGNMENT AGREEMENT" means the Assignment of Swap Agreement dated as
of May 15, 2001, by and among the Trust, the Indenture Trustee and the Swap
Counterparty.
"BASIC DOCUMENTS" means the Receivables Purchase Agreement, this
Agreement, the Certificate of Trust, the Sale and Servicing Agreement, the
Indenture, the Administration Agreement and 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.
"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.
"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 ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇; 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 April 1, 2001, entered into
between the Trust and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, the
Indenture Trustee named therein, pursuant to which a series of Notes are issued.
"INTEREST RATE SWAP AGREEMENT" means 1992 ISDA Master Agreement dated
as of May 15, 2001 (the "1992 ISDA Master Agreement"), including all schedules
and confirmations thereto, between the Issuer and the Swap Counterparty, as the
same may be amended, supplemented, renewed, extended or replaced from time to
time.
"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
2
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 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 First Union Trust Company, 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 upon execution of the Indenture shall be the
Indenture Trustee and after termination of the Indenture, the Owner Trustee.
"RECEIVABLES PURCHASE AGREEMENT" means that certain Receivables
Purchase Agreement, dated as of April 1, 2001, 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.
"SALE AND SERVICING AGREEMENT" means the Sale and Servicing Agreement
dated as of April 1, 2001, 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.
"SWAP COUNTERPARTY" shall mean Toyota Motor Credit Corporation, as swap
counterparty under the Interest Rate Swap Agreement, or any successor or
replacement swap counterparty from time to time under the Interest Rate Swap
Agreement.
"TAFR LLC" means Toyota Auto Finance Receivables LLC, a Delaware
limited liability company, its successors and assigns.
3
"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 2001-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 2001-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.
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;
4
(ii) 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;
(iii) 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;
(iv) to enter into and perform its obligations under
the Basic Documents, the Interest Rate Swap Agreement and the
Assignment Agreement to which it is to be a party;
(v) 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
(vi) 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 Act and
such amendments
5
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,
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, 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
6
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
7
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 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
8
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 Wilmington, Delaware, 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 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ shall be the principal 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 upon execution
of the Indenture shall be the Indenture Trustee and after termination of the
Indenture, 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
9
role as Paying Agent, for so long as the Owner Trustee 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.
10
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 Securityholders, in each case in
accordance with Section 5.01 of the Sale and
11
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
12
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.
13
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 $417,840,000, Class A-2 Notes in the aggregate
principal amount of $500,000,000, Class A-3 Notes in the aggregate principal
amount of $360,000,000 and Class A-4 Notes in the aggregate principal amount
of $175,000,000. 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 Trust. Such direction may be
exercised at any time by written instruction of the Certificateholder
pursuant to Article IV.
(b) The Owner Trustee accepts the trusts ▇▇▇▇▇▇ 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
14
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;
(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 or the Indenture
Trustee 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 or the Servicer under the Sale and Servicing 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.
(b) It has taken all corporate action necessary to authorize
the execution and delivery of this Agreement and each other Basic
17
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, First Union Trust Company, 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 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 such claim shall be asserted solely against the Trust
or any indemnitor who shall furnish indemnity as provided in this Indenture.
18
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 or of the Notes (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). 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 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; or (iv)
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
transactions contemplated hereby and thereby until such time as the Trust
shall terminate in accordance with the terms hereof.
19
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.
20
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.
21
(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.
22
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 and the Owner Trustee, with prior written notice to
the Rating Agencies, without the consent of any of the Noteholders or the
Certificateholder, 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 or the
Certificateholder, 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 or the
Certificateholder, 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 or the Certificateholder or (ii) reduce the
aforesaid percentage of the Outstanding Amount of the
25
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 or the Certificateholder 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 ▇▇▇▇▇'▇) 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
▇▇▇▇▇'▇ with 10 days prior written notice of such amendment and ▇▇▇▇▇'▇ 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 or the Certificateholder, 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 or the Certificateholder 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 Indenture Trustee and each of
the Rating Agencies.
It shall not be necessary for the consent of the Certificateholder, the
Noteholders 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.
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
26
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, the Certificateholder, 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, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President; if, to the Trust, addressed to
Toyota Auto Receivables 2001-B Owner Trust, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificate or the rights of the Holder thereof.
27
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
12.08 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 interests
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 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
28
Act. The parties hereto covenant and agree that neither of them shall look to
the other for payment of any such fees or expenses.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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 2001-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 2001-B Owner Trust (the "Trust") formed by
TAFR LLC.
The Trust was created pursuant to a Trust Agreement dated as of March
23, 2001, between TAFR LLC as depositor (the "Depositor") and First Union Trust
Company, National Association, as Owner Trustee (the "Owner Trustee"), as
amended and supplemented by the Amended and Restated Trust Agreement dated as of
April 1, 2001 (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 April 1, 2001 (the "Sale and Servicing Agreement"), among
the Trust, the Depositor and TMCC, as servicer (the "Servicer") or the Indenture
dated as of April 1, 2001 (the "Sale and Servicing Agreement"), 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 April 1, 2001, between the Trust and ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as indenture trustee (the "Indenture Trustee"), consisting of four
classes of
A-1
Notes designated as "4.300% Asset Backed Notes, Class A-1," "Floating Rate
Asset Backed Notes, Class A-2," "Floating Rate Asset Backed Notes, Class A-3"
and "Floating Rate Asset Backed Notes, Class A-4" (collectively, the
"Notes"). 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 property of 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, 2001, 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 ownership interests in
the Trust for any period during which the beneficial ownership 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 15, 2001,
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 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.
A-2
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.
A-3
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: April 1, 2001 TOYOTA AUTO RECEIVABLES 2001-B
OWNER TRUST
By: FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely an Owner Trustee
By:
----------------------------------
Authorized Signatory
A-4
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely an Owner Trustee
By:
----------------------------------
Authorized Signatory
A-5
(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 under the Trust Agreement at
any time by (i) the Depositor and the Owner Trustee, with prior written notice
to the Rating Agencies, without the consent of any of the Noteholders or the
Certificateholder, 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 or the
Certificateholder, 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 or the Certificateholder,
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) after 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 or the Certificateholder
or (ii) 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 Trust Agreement may also be amended from time to time by the
Depositor, the Owner Trustee and the Indenture Trustee for purposes of changing
the formula for determining the Specified Reserve Account Balance, the manner in
which the Reserve Account is funded (i.e., to allow the deposit of cash therein
by any Person, but not to change any order of priority of payments and
distributions specified in Section 5.06 of the Sale and Servicing Agreement),
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 have received from
each Rating Agency that has rated any outstanding Class of Notes 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
A-6
any Class of Notes, without the consent of any of the Noteholders or the
Certificateholder, 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 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 or the Certificateholder 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 corpus of the Trust 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.
A-7