EXHIBIT 4.1
TRUST AGREEMENT
between
HOUSEHOLD AUTO RECEIVABLES CORPORATION
and
[Name of Owner Trustee]
Owner Trustee
Dated as of ____ __, ____
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS....................................................................................1
Section 1.1. Capitalized Terms...................................................................1
Section 1.2. Other Definitional Provisions.......................................................2
Section 1.3. Action by or Consent of Noteholders and Certificate-holders.........................3
Section 1.4. Material Adverse Effect.............................................................3
ARTICLE II ORGANIZATION..................................................................................4
Section 2.1. Name................................................................................4
Section 2.2. Office..............................................................................4
Section 2.3. Purposes and Powers.................................................................4
Section 2.4. Appointment of Owner Trustee........................................................5
Section 2.5. Initial Capital Contribution of Trust Estate........................................5
Section 2.6. Declaration of Trust................................................................5
Section 2.7. Liability...........................................................................5
Section 2.8. Title to Trust Property.............................................................5
Section 2.9. Situs of Trust......................................................................6
Section 2.10. Representations and Warranties of the Depositor.....................................6
Section 2.11. Federal Income Tax Allocations......................................................8
Section 2.12. Covenants of the Depositor..........................................................8
Section 2.13. Covenants of the Certificateholders.................................................9
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS.......................................................9
Section 3.1. Initial Ownership...................................................................9
Section 3.2. The Certificates...................................................................10
Section 3.3. Authentication of Certificates.....................................................11
Section 3.4. Registration of Transfer and Exchange of Certificates..............................12
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificates..................................13
Section 3.6. Persons Deemed Certificateholders..................................................13
Section 3.7. Access to List of Certificateholders'Names and Addresses...........................13
Section 3.8. Maintenance of Office or Agency....................................................14
Section 3.9. ERISA Restrictions.................................................................14
Section 3.10. Securities Matters.................................................................14
Section 3.11. Distributions......................................................................14
Section 3.12. Paying Agent.......................................................................14
ARTICLE IV VOTING RIGHTS AND OTHER ACTIONS..............................................................15
Section 4.1. Prior Notice to Holders with Respect to Certain Matters............................15
Section 4.2. Action by Certificateholders with Respect to Certain Matters.......................16
i
Page
Section 4.3. Action by Certificateholders with Respect to Bankruptcy............................16
Section 4.4. Restrictions on Certificateholders'Power...........................................16
Section 4.5. Majority Control...................................................................17
ARTICLE V CERTAIN DUTIES................................................................................17
Section 5.1. Accounting and Records to the Noteholders, Certificate-holders, the Internal
Revenue Service and Others.....................................................17
Section 5.2. Signature on Returns; Tax Matters Partner..........................................18
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE........................................................18
Section 6.1. General Authority..................................................................18
Section 6.2. General Duties.....................................................................18
Section 6.3. Action upon Instruction............................................................19
Section 6.4. No Duties Except as Specified in this Agreement or in Instructions.................20
Section 6.5. No Action Except under Specified Documents or Instructions.........................20
Section 6.6. Restrictions.......................................................................20
ARTICLE VII CONCERNING THE OWNER TRUSTEE................................................................21
Section 7.1. Acceptance of Trusts and Duties....................................................21
Section 7.2. Furnishing of Documents............................................................22
Section 7.3. Representations and Warranties.....................................................22
Section 7.4. Reliance; Advice of Counsel........................................................22
Section 7.5. Not Acting in Individual Capacity..................................................23
Section 7.6. Owner Trustee Not Liable for Certificates or Receivables...........................24
Section 7.7. Owner Trustee May Own Certificates and Notes.......................................24
Section 7.8. Payments from Owner Trust Estate...................................................24
Section 7.9. Doing Business in Other Jurisdictions..............................................24
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE..............................................................25
Section 8.1. Owner Trustee's Fees and Expenses..................................................25
Section 8.2. Indemnification....................................................................25
Section 8.3. Payments to the Owner Trustee......................................................26
Section 8.4. Non-recourse Obligations...........................................................26
ARTICLE IX TERMINATION OF AGREEMENT.....................................................................26
Section 9.1. Termination of Agreement...........................................................26
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES........................................28
Section 10.1. Eligibility Requirements for Owner Trustee.........................................28
Section 10.2. Resignation or Removal of Owner Trustee............................................28
Section 10.3. Successor Owner Trustee............................................................29
Section 10.4. Merger or Consolidation of Owner Trustee...........................................29
(ii)
Page
Section 10.5. Appointment of Co-Trustee or Separate Trustee......................................30
ARTICLE XI MISCELLANEOUS................................................................................31
Section 11.1. Supplements and Amendments.........................................................31
Section 11.2. No Legal Title to Owner Trust Estate in Certificateholders.........................32
Section 11.3. Limitations on Rights of Others....................................................32
Section 11.4. Notices............................................................................32
Section 11.5. Severability.......................................................................33
Section 11.6. Separate Counterparts..............................................................33
Section 11.7. Assignments; Series Support Provider...............................................33
Section 11.8. Covenants of the Depositor.........................................................33
Section 11.9. No Petition........................................................................33
Section 11.10. No Recourse........................................................................34
Section 11.11. Headings...........................................................................34
Section 11.12. GOVERNING LAW......................................................................34
Section 11.13. Master Servicer....................................................................34
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
(iii)
THIS TRUST AGREEMENT, dated as of ____ __, ____, is by and
between HOUSEHOLD AUTO RECEIVABLES CORPORATION, a Nevada corporation (the
"Depositor"), and ______________________, a Delaware banking corporation, as
Owner Trustee (the "Owner Trustee").
ARTICLE I
DEFINITIONS
.1. CAPITALIZED TERMS. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
"Agreement" shall mean this Amended and Restated Agreement, as the
same may be amended and supplemented from time to time.
"Benefit Plan" shall have the meaning assigned to such term in
Section 3.9.
"Business Trust Statute" shall mean 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.
"Certificates" means, if the Depositor elects (i) to evidence
its interest in certificated form pursuant to Section 3.2, the certificate
substantially in the form of Exhibit A or (ii) to have its interest be
uncertified pursuant to Section 3.2, such uncertificated interest.
"Certificate Majority" shall have the meaning assigned to such term in
Section 4.1.
"Certificate Paying Agent" means ________________.
"Certificate Register" and "Certificate Registrar" shall mean
the register mentioned and the registrar appointed pursuant to Section 3.4.
"Certificate of Trust" shall mean the Certificate of Trust in the
form of Exhibit B to be filed for the Trust pursuant to Section 3810(a) of
the Business Trust Statute.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
_______________________________________________, Attention: ______________, or
at such other address as the Owner Trustee may designate by notice to the
Certificateholders and the Depositor, or the principal corporate trust office of
any successor Owner Trustee (the address of which the successor owner trustee
will notify the Certificateholders and the Depositor).
"Depositor" shall mean Household Auto Receivables Corporation
in its capacity as Depositor hereunder.
"ERISA" shall have the meaning assigned to such term in Section 3.9.
"Expenses" shall have the meaning assigned to such term in Section
8.2.
"Holder" or "Certificateholder" shall mean a Person in whose name a
Certificate is registered on the Certificate Register.
"Household" shall mean Household Finance Corporation.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.2.
"Owner Trust Estate" shall mean 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 Master Sale and Servicing Agreement, all funds on deposit
from time to time in the Trust 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 Master Sale and Servicing Agreement, each Basic Document and
each Series Related Document.
"Owner Trustee" shall mean ___________________, a Delaware
banking corporation, not in its individual capacity but solely as owner trustee
under this Agreement, and any successor Owner Trustee hereunder.
"Percentage Interest" shall mean, with respect to a Certificate,
the portion of the interests in the Trust represented by a Certificate, as
reflected in the Certificate Register.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities Act" shall have the meaning assigned to such term in
Section 3.4.
"Series Trust Estate" shall mean the property granted to the Owner
Trustee on behalf of the Trust pursuant to Section 1.02 of the Series _______
Supplement.
"Treasury Regulations" shall mean 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" shall mean the trust established by this Agreement.
.2. OTHER DEFINITIONAL PROVISIONS. (a) Capitalized terms used
herein and not otherwise defined have the meanings assigned to them in the
Master Sale and Servicing Agreement or, if not defined therein, in the
Indenture, PROVIDED THAT, as used herein, Series means only the Series of
Notes and Series of Certificates with respect to
2
which the Trust is the Issuer and only such Series Trust Estates included in
the Owner Trust Estate.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any Certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any Certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate
or other document to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles as in
effect on the date of this Agreement or any such certificate or other
document, as applicable. To the extent that the definitions of accounting
terms in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
.3. ACTION BY OR CONSENT OF NOTEHOLDERS AND CERTIFICATE-HOLDERS.
Whenever any provision of this Agreement refers to action to be taken, or
consented to, by Noteholders or Certificateholders, such provision shall be
deemed to refer to the Certificateholder or Noteholder, as the case may be,
of record as of the Record Date immediately preceding the date on which such
action is to be taken, or consent given, by Noteholders or
Certificateholders. Solely for the purposes of any action to be taken, or
consented to, by Noteholders, any Note registered in the name of the
Depositor or any Affiliate thereof shall be deemed not to be outstanding;
provided, however, that, solely for the purpose of determining whether the
Trustee is entitled to rely upon any such action or consent, only Notes which
the Owner Trustee or the Trustee knows to be so owned shall be so disregarded.
.4. MATERIAL ADVERSE EFFECT. Whenever a determination is to be made
under this Agreement as to whether a given event, action, course of conduct
or set of facts or circumstances could or would have a material adverse
effect on the Noteholders or Certificateholders (or any similar or analogous
determination), such determination shall be made without taking into account
the funds available from claims under any policy or other Series Support.
3
ARTICLE II
ORGANIZATION
.1. NAME. There is hereby formed a trust to be known as "Household
Automotive Trust ___", in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
.2. OFFICE. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address as the Owner
Trustee may designate by written notice to the Certificateholders and the
Depositor.
.3. PURPOSES AND POWERS. (a) The purpose of the Trust is, and the
Trust shall have the power and authority, to engage in the following
activities:
(i) to issue the Notes pursuant to the Indenture and each
Series Supplement and the Certificates pursuant to this Agreement
and each Series Supplement, and to sell the Notes;
(ii) with the proceeds of the sale of the Notes, to fund the
expense of obtaining any Series Support and to pay the
organizational, start-up and transactional expenses of the Trust
and to pay the balance to the Depositor pursuant to the Master Sale
and Servicing Agreement;
(iii) with respect to each Series Trust Estate, to assign,
grant, transfer, pledge, mortgage and convey each Series Trust
Estate to the Trustee pursuant to the Indenture and the related
Series Supplement for the benefit of the Noteholders;
(iv) to enter into and perform its obligations under the
Basic Documents and the Series Related Documents with respect to
each Series, in each case, to which it is a party;
(v) to acquire, hold and manage the Owner Trust Estate;
(vi) to make distributions on the Certificates in accordance
with their respective terms;
(vii) to own Class SV Preferred Stock of the Depositor;
(viii) 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
(ix) subject to compliance with the Basic Documents and the
Series Related Documents with respect to each Series, 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 Certificateholders and the Noteholders.
4
(b) 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 or other than as required or authorized by the
terms of this Agreement, the Basic Documents or any Series Related Documents.
.4. APPOINTMENT OF OWNER TRUSTEE. The Depositor hereby appoints the
Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
.5. INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee,
on behalf of the Trust, as of the date hereof, the sum of $1,000 and one
share of Class SV Preferred Stock of the Depositor. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of
the foregoing contribution, which shall constitute the initial Owner Trust
Estate. The Depositor shall pay organizational expenses of the Trust as they
may arise.
.6. 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, on behalf of the Trust, for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the Basic
Documents and the Series Related Documents with respect to each Series. 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. It is the intention of the
parties hereto that, solely for income and franchise tax purposes, the Trust
shall be treated as a branch; PROVIDED, HOWEVER, that in the event
Certificates are owned by more than one Certificateholder, it is the
intention of the parties hereto that, solely for income and franchise tax
purposes, the Trust shall then be treated as a partnership and that, unless
otherwise required by appropriate tax authorities, only after such time the
Trust will file or cause to be filed annual or other necessary returns,
reports and other forms consistent with the characterization of the Trust as
a partnership for such tax purposes. Effective as of the date hereof, the
Owner Trustee shall have all rights, powers and duties set forth herein and
to the extent not inconsistent herewith, in the Business Trust Statute with
respect to accomplishing the purposes of the Trust. The Owner Trustee shall
file the Certificate of Trust with the Secretary of State.
.7. LIABILITY. (a) The Depositor shall pay organizational expenses
of the Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by
the Owner Trustee.
(b) No Holder, other than to the extent set forth in clause (a),
shall have any personal liability for any liability or obligation of the
Trust.
.8. TITLE TO TRUST PROPERTY. (a) Legal title to all 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
5
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.
(b) The holders of the Certificates shall not have legal title to
any part of the related Series Trust Estate. The Holders of the Certificates
shall be entitled to receive distributions with respect to their undivided
ownership interest therein in accordance with the terms hereof and the
related Series Supplement. No transfer, by operation of law or otherwise, of
any right, title or interest by any Certificateholder of 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 any Series Trust Estate.
.9. SITUS OF TRUST. The Trust will be located and administered in
the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located with the Certificate Paying Agent in the
State of _______. Payments will be received by the Certificate Paying Agent
on behalf of the Trust in _______ and payments will be made by the Trust from
________. 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, the Master Servicer or any agent of the Trust from having
employees within or without the State of Delaware. The only office of the
Trust will be at the Corporate Trust Office in Delaware.
.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The Depositor
makes the following representations and warranties on which the Owner Trustee
relies in accepting the Owner Trust Estate in trust and executing the
Certificates and Notes and upon which any Series Support Provider relies in
providing any Series Support. Each of the following representations and
warranties shall be deemed to be made on each date on which a Series Trust
Estate is pledged under the Indenture.
(a) ORGANIZATION AND GOOD STANDING. The Depositor is duly organized
and validly existing as a Nevada corporation 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 is proposed to be
conducted pursuant to this Agreement and the Basic Documents.
(b) DUE QUALIFICATION. It is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of its
property, the conduct of its business and the performance of its obligations
under this Agreement and the Basic Documents requires such qualification and
in which the failure to so qualify would have a material adverse effect on
the business, properties, assets or condition (financial or otherwise) of the
Depositor.
(c) POWER AND AUTHORITY. The Depositor has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms;
the Depositor has full power and authority to sell and assign the property to
be sold and assigned to and deposited with the Trust; the Depositor has duly
authorized such sale, assignment and
6
deposit to the Trust by all necessary corporate action; and the execution,
delivery and performance of this Agreement has been duly authorized by the
Depositor by all necessary corporate action.
(d) BINDING OBLIGATIONS. This Agreement, when duly executed and
delivered, shall constitute legal, valid and binding obligations of the
Depositor enforceable against the Depositor in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(e) NO CONSENT REQUIRED. To the best knowledge of the Depositor, no
consent, license, approval or authorization or registration or declaration
with, any Person or with any governmental authority, bureau or agency is
required in connection with the execution, delivery or performance of this
Agreement, the Basic Documents and the applicable Series Related Documents,
except for such as have been obtained, effected or made or as to which a
failure to obtain, effect or make would not have a material adverse effect on
the business, properties, assets or condition (financial or other) of the
Depositor.
(f) NO VIOLATION. 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
articles of incorporation or by-laws of the Depositor, or any material
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 or
any applicable Series Related 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.
(g) NO PROCEEDINGS. To the best of the Depositor's knowledge, there
are no proceedings or investigations pending or, to its knowledge threatened
against it before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over it or its
properties (A) asserting the invalidity of this Agreement or any of the Basic
Documents, (B) seeking to prevent the issuance of the Certificates or the
Notes or the consummation of any of the transactions contemplated by this
Agreement or any of the Basic Documents, (C) seeking any determination or
ruling that might materially and adversely affect its performance of its
obligations under, or the validity or enforceability of, this Agreement, any
of the Basic Documents or any Series Related Documents, or (D) seeking to
adversely affect the federal income tax or other federal, state or local tax
attributes of any of the Notes or Certificates.
7
.11. FEDERAL INCOME TAX ALLOCATIONS. (a) For so long as the Trust
has a single owner for federal income tax purposes, it will, pursuant to
Treasury Regulations promulgated under section 7701 of the Code, be
disregarded as an entity distinct from the Certificateholder for all federal
income tax purposes. Accordingly, for federal income tax purposes, the
Certificateholder will be treated as (i) owning all assets owned by the
Trust, (ii) having incurred all liabilities incurred by the Trust, and (iii)
all transactions between the Trust and the Certificateholder will be
disregarded.
(b) In the event that the Trust has two equity owners for federal
income tax purposes, the Trust will be treated as a partnership. At any such
time that the Trust has two equity owners, this Agreement will be amended, in
accordance with Section 11.1 herein, and appropriate provisions will be added
so as to provide for treatment of the Trust as a partnership.
.12. COVENANTS OF THE DEPOSITOR. The Depositor agrees and covenants
for the benefit of the Owner Trustee and the Trustee for the benefit of the
Noteholders, during the term of this Agreement, and to the fullest extent
permitted by applicable law, that:
(a) it shall not create, incur or suffer to exist any indebtedness
or engage in any business, except, in each case, as permitted by its
certificate of incorporation, the Basic Documents and the Series Related
Documents;
(b) it shall not, for any reason, institute proceedings for the
Trust to be adjudicated a bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Trust, or
file a petition seeking or consenting to reorganization or relief under any
applicable federal or state law relating to the bankruptcy of the Trust, or
consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Trust or a substantial part
of the property of the Trust or cause or permit the Trust to make any
assignment for the benefit of creditors, or admit in writing the inability of
the Trust to pay its debts generally as they become due, or declare or effect
a moratorium on the debt of the Trust or take any action in furtherance of
any such action;
(c) it shall obtain from each counterparty to each Basic Document
to which it or the Trust is a party and each other agreement entered into on
or after the date hereof to which it or the Trust is a party, an agreement by
each such counterparty that prior to the occurrence of the event specified in
Section 9.1(e) such counterparty shall not institute against, or join any
other Person in instituting against, it or the Trust, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United States or any state of the
United States; and
(d) it shall not, for any reason, withdraw or attempt to withdraw
from this Agreement, dissolve, institute proceedings for it to be adjudicated
a bankrupt or insolvent, or consent to the institution of bankruptcy or
insolvency proceedings against it, or file a petition seeking or consenting
to reorganization or relief under any applicable
8
federal or state law relating to bankruptcy, or consent to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of it or a substantial part of its property, or make any assignment
for the benefit of creditors, or admit in writing its inability to pay its
debts generally as they become due, or declare or effect a moratorium on its
debt or take any action in furtherance of any such action.
.13. COVENANTS OF THE CERTIFICATEHOLDERS. Each Certificateholder
agrees:
(a) to be bound by the terms and conditions of the related
Certificates, of this Agreement and, with respect to the holders of
Certificates, of the related Series Supplement, including any supplements or
amendments hereto and to perform the obligations of a Certificateholder as
set forth therein or herein, in all respects as if it were a signatory
hereto. This undertaking is made for the benefit of the Trust, the Owner
Trustee and the Noteholders;
(b) to hereby appoint the Depositor as such Certificateholder's
agent and attorney-in-fact to sign any federal income tax information return
filed on behalf of the Trust, if any, and agree that, if requested by the
Trust, it will sign such federal income tax information return in its
capacity as holder of an interest in the Trust. Each Certificateholder also
hereby agrees that in its tax returns it will not take any position
inconsistent with those taken in any tax returns that may be filed by the
Trust;
(c) if such Certificateholder is other than an individual or other
entity holding its Certificate through a broker who reports securities sales
on Form 1099-B, to notify the Owner Trustee of any transfer by it of a
Certificate in a taxable sale or exchange, within 30 days of the date of the
transfer;
(d) until the completion of the events specified in Section 9.1(e),
not to, for any reason, institute proceedings for the Trust or the Depositor
to be adjudicated a bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against the Trust, or file a petition
seeking or consenting to reorganization or relief under any applicable
federal or state law relating to bankruptcy, or consent to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Trust or a substantial part of its property, or cause or
permit the Trust to make any assignment for the benefit of its creditors, or
admit in writing its inability to pay its debts generally as they become due,
or declare or effect a moratorium on its debt or take any action in
furtherance of any such action; and
(e) that there shall not be more than 98 other holders of
Certificates.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
.1. INITIAL OWNERSHIP. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5, the Trust shall issue
an uncertificated ownership interest in the Trust (the "Uncertificated
Certificate") to the Depositor. Unless
9
and until the Depositor transfers all or a portion of the Percentage Interest
represented by such Uncertificated Certificate, such Uncertificated
Certificate shall represent one hundred percent (100%) of the Percentage
Interest.
.2. THE CERTIFICATES. (a) The Certificates shall be in
uncertificated form with records of interest ownership maintained by the
Certificate Registrar in the Certificate Register. If, on or after the
Closing Date, the holder of any Uncertificated Certificate delivers to the
Owner Trustee a written request that the Uncertificated Certificate specified
in such request be issued in certificated form (a related "Certification
Request"), the Owner Trustee shall promptly issue such Certificate to the
holder thereof in certificated form. If a Certification Request has been
delivered, the Certificate will be issued in registered form, substantially
in the form of Exhibit A, and shall upon issue, be executed and delivered by
the Depositor to the Owner Trustee for authentication and redelivery as
provided in Section 3.3.
(b) If the Certificates are in certificated form, they shall be
executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee. Certificates 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 validly issued and entitled to the benefit of this Agreement,
notwithstanding that such individuals or any of them shall have ceased to be
so authorized prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of authentication and delivery of
such Certificates.
(c) A transferee of a Certificate (whether in certificated or
uncertificated form) shall become a Certificateholder, and shall be entitled
to the rights and subject to the obligations of a Certificateholder
hereunder, upon due registration of such Certificate in such transferee's
name pursuant to Section 3.4.
(d) No Certificates shall be issued under this Agreement unless
such Certificates have been authorized pursuant to a Series Supplement and
all conditions precedent to the issuance thereof, as specified in the related
Series Supplement shall have been satisfied. All Certificates of each Series
issued under this Agreement shall be in all respects entitled to the benefits
hereof and of the related Series Trust Estate.
(e) Upon the written direction of the Depositor, the Owner Trustee
and the Depositor shall enter into one or more Supplements, providing for the
issuance of separate Series of Certificates. Each Series shall be a separate
Series of the Trust within the meaning of Section 3806(b)(2) of the Business
Trust Statute. Separate and distinct records (including tax records) shall be
maintained for each Series and the Owner Trust Estate associated with each
such Series shall be maintained for each Series and the Owner Trust Estate
associated with each such Series shall be held in Trust and accounted for
separately from the Owner Trust Estate of any other Series. Except as
specified in this Agreement or in any Supplement, the Owner Trust Estate of
any Series shall not be subject to claims, debts, liabilities, expenses or
obligations arising from or with respect to the Trust or any other Series.
The debts, obligations and expenses incurred, contracted
10
for or otherwise existing with respect to a particular Series shall be
enforceable against the related Owner Trust Estate only and not against the
assets of the Trust generally or any other Series. Notice of this limitation
on inter-series liabilities shall be set forth in the Certificate of Trust
(whether originally or by amendment) as filed with the Secretary of State
pursuant to the Business Trust Statute, and upon the giving of such notice in
the Certificate of Trust, the statutory provisions of Section 3804 of the
Business Trust Statute relating to limitations on inter-series liabilities
(and the statutory effect under Section 3804 of setting forth such notice in
the Certificate of Trust) shall become applicable to the Trust and each
Series of Certificates.
(f) Each Supplement shall contain provisions requiring that neither
the Depositor nor any Holder of a Certificate of the related Series of
Certificates shall direct the Owner Trustee to (i) take any action that would
cause the Owner Trust Estate of the related Series to be substantively
consolidated into any other Owner Trust Estate of any other Series such that
it will have its separate existence disregarded in the event of an insolvency
event with respect to any Certificateholder of such Series, the Trust or
another Series, (ii) to commingle any of the Owner Trust Estate of the
related Series with the Owner Trust Estate of any other Series, (iii) to
maintain the corporate, financial and accounting books and records and
statements of the related Series, if any, in a manner such that they cannot
be separated from those of any other Series, (iv) to take any action that
would cause (a) the funds and other assets of the related Series, if any, not
to be identifiable or the bank accounts, corporate records and books of
account, if any, of the related Series not to be inseparable from those of
any other Series and (b) the Trust to pay, other than from assets of the
related Series, any obligations or indebtedness of any kind incurred by the
related Series and payable by the Trust pursuant to this Agreement, (v) to
maintain the assets and liabilities of the related Series so that they are
not readily ascertainable from those of any other Series and subject to
segregation without requiring substantial time or expense to effect and
account for such segregated assets and liabilities, (vi) to take any actions
with respect to the related Series except in its capacity as Owner Trustee in
respect of such Series. The Master Servicer shall have the right to take any
action on behalf of the Trust to enforce the foregoing provisions of each
Supplement for the benefit of the Trust and of each Series.
(g) Each Certificateholder shall hold an exclusive, divided
beneficial interest in the Owner Trust Estate of its related Series of
Certificates.
(h) The Certificateholders of any Series of Certificates shall be
entitled to receive distributions with respect to their undivided ownership
interest therein only in accordance with the provisions of Section 3.11 and
the related Supplement.
.3. AUTHENTICATION OF CERTIFICATES. If the Certificates are in
certificated form, the Owner Trustee shall cause the related Certificates to
be executed on behalf of the Trust, authenticated and delivered to or upon
the written order of the Depositor, signed by its chairman of the board, its
president or any vice president, its treasurer or any assistant treasurer
without further corporate action by the Depositor, in authorized
denominations. No Certificate shall entitle its holder to any benefit under
this Agreement
11
or, with respect to a Series, the related Series Supplement, or shall 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 its authenticating agent, by manual
signature; such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
.4. REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES. (a) The
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.8, a Certificate Register in which, subject
to such reasonable regulations as it may prescribe, the Owner Trustee shall
provide for the registration of Certificates (whether in certificated or
uncertificated form) and of transfers and exchanges of Certificates (whether
in certificated or uncertificated form) as herein provided. The Owner Trustee
shall be the initial Certificate Registrar .
(b) The Certificate Registrar shall provide the Trustee with a list
of the names and addresses of the Certificateholders on each Series Closing
Date in the form which such information is provided to the Certificate
Registrar by the Depositor. Upon any transfers of Certificates, the
Certificate Registrar shall notify the Trustee of the name and address of the
transferee in writing, by facsimile, on the day of such transfer.
(c) If a Certificate is in certificated form, upon surrender for
registration of transfer of any Certificate to the Certificate Registrar at
the office or agency maintained pursuant to Section 3.8, the Owner Trustee
shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Series in
the aggregate Percentage Interest to be transferred, dated the date of
authentication by the Owner Trustee or any authenticating agent. If a
Certificate is in uncertificated form, upon representation of such
Certificate in accordance with Section 3.2, the Certificate Registrar shall
reflect in the Certificate Registrar the transfer of the relevant Percentage
Interest. If a Certificate is in certificated form, at the option of the
Holder thereof, such Certificate may be exchanged for one or more other
Certificates of the same Series in authorized denominations of a like
Percentage Interest upon surrender of the Certificates of the same Series, to
be exchanged at the office or agency maintained pursuant to Section 3.8.
Certificates may be issued in any Percentage Interest not to exceed 100%.
(d) Every Certificate presented or, in the case of certificated
Certificates, surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Owner Trustee and the Certificate Registrar duly executed by the
Certificateholder or his attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Certificate Registrar, which requirements include
membership or participation in the Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Certificate Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Exchange Act. Each certificated
Certificate surrendered for registration of transfer or exchange shall be
12
canceled and subsequently disposed of by the Owner Trustee in accordance with
its customary practice.
(e) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
.5. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (a) any
mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (b) there shall be
delivered to the Certificate Registrar and 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 its 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 Series principal balance. In
connection with the issuance of any new Certificate under this Section, the
Owner Trustee or the Certificate Registrar 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 an ownership interest in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
.6. PERSONS DEEMED CERTIFICATEHOLDERS. Every Person by virtue of
becoming a Certificateholder in accordance with this Agreement and the rules
and regulations of the Certificate Registrar shall be deemed to be bound by
the terms of this Agreement. Prior to due presentation of a Certificate for
registration of transfer, the Owner Trustee, the Certificate Registrar and
any agent of the Owner Trustee and the Certificate Registrar may treat the
Person in whose name any Certificate shall be registered in the Certificate
Register as the owner of such Certificate for the purpose of receiving
distributions pursuant hereto, the Indenture or any Series Supplement (in the
case of a Certificate) and for all other purposes whatsoever, and none of the
Owner Trustee, the Certificate Registrar, nor any agent of the Owner Trustee
or the Certificate Registrar shall be bound by any notice to the contrary.
.7. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES. The
Owner Trustee or the Certificate Registrar shall furnish or cause to be
furnished to the Master Servicer, the Depositor or Owner Trustee within 15
days after receipt by the Owner Trustee or the Certificate Registrar of a
request therefor from such Person in writing, a list, of the names and
addresses of the Certificateholders as of the most recent Record Date. If
three or more Holders of Certificates or one or more Holders of Certificates
evidencing not less than 25% of the Percentage Interest apply in writing to
the Owner Trustee or the Certificate Registrar, and such application states
that the applicants desire to communicate with other Certificateholders with
respect to their rights under this Agreement, under the Certificates of such
Series or under the related Series
13
Supplement and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Owner Trustee or the
Certificate Registrar shall, within five Business Days after the receipt of
such application, afford such applicants access during normal business hours
to the current list of Certificateholders of such Series. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed not to
hold any of the Depositor, the Master Servicer, the Owner Trustee or any
agent thereof accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
.8. MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee or the
Certificate Registrar shall maintain in _________, Delaware, an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificates and the Basic Documents may
be served. The Owner Trustee initially designates its Corporate Trust Office
for such purposes. The Owner Trustee shall give prompt written notice to the
Depositor, the Certificateholders and (unless a Support Default shall have
occurred and be continuing) any Series Support Provider of any change in the
location of the Certificate Register or any such office or agency.
.9. ERISA RESTRICTIONS. The Certificates may not be acquired by or
for the account of (i) an employee benefit plan (as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
that is subject to the provisions of Title I of ERISA, (ii) a plan (as
defined in Section 4975(e)(1) of the Code) that is subject to Section 4975 of
the Code or (iii) any entity whose underlying assets include assets of a plan
described in (i) or (ii) by reason of such plan's investment in the entity
(each, a "Benefit Plan"). The Certificate Registrar shall not register the
transfer of a Certificate unless the transferee has delivered to the Owner
Trustee a representation letter in form and substance satisfactory to the
Owner Trustee to the effect that the transferee is not, and is not acquiring
the Certificate for the account of, a Benefit Plan.
.10. SECURITIES MATTERS. Notwithstanding anything contained herein
to the contrary, the Owner Trustee shall not be responsible for ascertaining
whether any transfer complies with the registration provisions or exemptions
from the Securities Act, the Exchange Act, applicable state securities law or
the Investment Company Act; PROVIDED, HOWEVER, that if a certificate is
specifically required to be delivered to the Owner Trustee by a purchaser or
transferee of a Certificate, the Owner Trustee shall be under a duty to
examine the same to determine whether it conforms to the requirements of this
Agreement and shall promptly notify the party delivering the same if such
certificate does not so conform.
.11. DISTRIBUTIONS. Distributions shall be made from time to time
by the Owner Trustee or the Certificate Paying Agent in accordance with the
Percentage Interests of the Certificateholders.
.12. PAYING AGENT. Distributions to be made in respect of the
Certificates pursuant to this Agreement, or any Series Supplement shall be
made by the Certificate
14
Paying Agent, by wire transfer or check mailed to the Certificateholder of
record in the Certificate Register without the presentation or surrender of
the Certificate or the making of any notation thereon, except as provided in
Section 9.1(c) with respect to the final distribution on a Certificates.
ARTICLE IV
VOTING RIGHTS AND OTHER ACTIONS
.1. PRIOR NOTICE TO HOLDERS 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, the Owner Trustee
shall have notified the Certificateholders in writing of the proposed action
and Certificateholders holding, in the aggregate, greater than 50% of the
Percentage Interests (a "Certificate Majority") shall not have notified the
Owner Trustee in writing prior to the 30th day after such notice is given
that such Certificateholders have withheld consent or provided alternative
direction:
(a) the election by the Trust to file an amendment to the
Certificate of Trust, which amendment shall have satisfied the Rating Agency
Condition (unless such amendment is required to be filed under the Business
Trust Statute or unless such amendment would not materially and adversely
affect the interests of the Holders);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the
Certificateholders; or
(d) except pursuant to Section 13.1(b) of the Master Sale and
Servicing Agreement, the amendment, change or modification of the Master Sale
and Servicing Agreement, except to cure any ambiguity or defect or to amend
or supplement any provision in a manner that would not materially adversely
affect the interests of the Certificateholders.
(e) the Depositor shall not, without the unanimous consent of the
holders of the Class SV Preferred Stock of the Depositor, institute
proceedings to be adjudicated insolvent, or consent to the institution of any
bankruptcy or insolvency case or proceedings against it, or file or consent
to a petition under any applicable federal or state law relating to
bankruptcy, seeking the Depositor's liquidation or reorganization or any
other relief for the Corporation as debtor, or consent to the appointment of
a receiver, liquidator, assignee, trustee, custodian or sequestrator (or
other similar official) of the Corporation or a substantial part of its
property, or make any assignment for the benefit of creditors, or admit in
writing its inability to pay its debts generally as they become due, or take
any corporate action in furtherance of such action.
15
The Owner Trustee shall notify the Certificateholders in writing of any
appointment of a successor Note Registrar or Certificate Registrar within
five Business Days thereof.
.2. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS.
The Owner Trustee shall not have the power (a) to remove the Master Servicer
under the Master Sale and Servicing Agreement or (b) except as expressly
provided in the Indenture and the related Series Supplement and at the
written direction of the Certificateholders, sell the Receivables after the
termination of the Indenture. The Owner Trustee shall take the actions
referred to in the preceding sentence only upon written instructions signed
by the Certificateholders and the furnishing of indemnification satisfactory
to the Owner Trustee by the Certificateholders.
.3. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY. Until
one year and one day following the date of payment in full of the Notes of
each Series have been paid in full, the Owner Trustee shall not have the
power to, and shall not, commence any proceeding or other actions
contemplated by Section 2.13(d) hereof relating to the Trust without the
prior written consent of all the Certificateholders and the delivery to the
Owner Trustee by each such Certificateholder of a certificate certifying that
such Certificateholder reasonably believes that the Trust is insolvent.
.4. RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. (a) The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement, any of the
Basic Documents or any Series Related Documents or would be contrary to
Section 2.3 or otherwise contrary to law nor shall the Owner Trustee be
obligated to follow any such direction, if given.
(b) No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to
this Agreement or any Basic Document, unless there are no outstanding notes
of any Series and unless the Certificate Majority previously shall have given
to the Owner Trustee a written notice of default and of the continuance
thereof, as provided in this Agreement, and also unless the Certificate
Majority shall have made written request upon the Owner Trustee to institute
such action, suit or proceeding in its own name as Owner Trustee under this
Agreement and shall have offered to the Owner Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Owner Trustee, for 30 days after its
receipt of such notice, request, and offer of indemnity, shall have neglected
or refused to institute any such action, suit, or proceeding, and during such
30-day period no request or waiver inconsistent with such written request has
been given to the Owner Trustee pursuant to and in compliance with this
section or Section 6.3; it being understood and intended, and being expressly
covenanted by each Certificateholder with every other Certificateholder and
the Owner Trustee, that no one or more Holders of Certificates shall have any
right in any manner whatever by virtue or by availing itself or themselves of
any provisions of this Agreement to affect, disturb, or prejudice the rights
of the Holders of any other of the Certificates, or to obtain or seek to
obtain priority over
16
or preference to any other such Holder, or to enforce any right under this
Agreement, except in the manner provided in this Agreement and for the equal,
ratable, and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 4.4, each and every
Certificateholder and the Owner Trustee shall be entitled to such relief as
can be given either at law or in equity.
.5. MAJORITY CONTROL. No Certificateholder shall have any right to
vote or in any manner otherwise control the operation and management of the
Trust except as expressly provided in this Agreement. Except as expressly
provided herein, any action that may be taken by the Certificateholders under
this Agreement may be taken by the Certificate Majority. Except as expressly
provided herein, any written notice of the Certificateholders delivered
pursuant to this Agreement shall be effective if signed by the Certificate
Majority at the time of the delivery of such notice.
ARTICLE V
CERTAIN DUTIES
.1. ACCOUNTING AND RECORDS TO THE NOTEHOLDERS, CERTIFICATE-HOLDERS,
THE INTERNAL REVENUE SERVICE AND OTHERS. Subject to Sections 12.1(b)(iii) and
12.1(c) of the Master Sale and Servicing Agreement, the Master Servicer shall
(a) maintain (or cause to be maintained) the books of the Trust on a calendar
year basis on the accrual method of accounting, including, without
limitation, the allocations of net income under Section 2.11, (b) deliver (or
cause to be delivered) to each Certificateholder, as may be required by the
Code and applicable Treasury Regulations, such information as may be required
(including Schedule K-1, if applicable) to enable each Certificateholder to
prepare its Federal and state income tax returns, (c) file or cause to be
filed, if necessary, such tax returns relating to the Trust (including a
partnership information return, Form 1065), and direct the Owner Trustee or
the Master Servicer, as the case may be, to 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 branch, or if applicable, as a partnership, for Federal
income tax purposes and (d) collect or cause to be collected any withholding
tax as described in and in accordance with the Master Sale and Serving
Agreement or any Series Supplement with respect to income or distributions to
Certificateholders and the appropriate forms relating thereto. The Owner
Trustee or the Master Servicer, as the case may be, shall make all elections
pursuant to this Section 5.1 as directed in writing by the Depositor. The
Owner Trustee shall sign all tax information returns, if any, filed pursuant
to this Section 5.1 and any other returns as may be required by law, and in
doing so shall rely entirely upon, and shall have no liability for
information provided by, or calculations provided by, the Depositor or the
Master Servicer. 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.
17
.2. SIGNATURE ON RETURNS; TAX MATTERS PARTNER. (a) Notwithstanding
the provisions of Section 5.1 and in the event that the Trust is
characterized as a partnership, the Owner Trustee shall sign on behalf of the
Trust the tax returns of the Trust, unless applicable law requires a
Certificateholder to sign such documents, in which case such documents shall
be signed by the Depositor.
(b) In the event that the Trust is characterized as a partnership,
the Depositor shall be the "tax matters partner" of the Trust pursuant to the
Code.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
.1. GENERAL AUTHORITY. The Owner Trustee is authorized and directed
to execute and deliver on behalf of the Trust the Basic Documents and each
Series Supplement and the related Series Related Documents to which the Trust
is named as a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents and each Series Supplement
and the related Series Related Documents to which the Trust is named as a
party and any amendment thereto, in each case, in such form as the Depositor
shall approve as evidenced conclusively by the Owner Trustee's execution
thereof, and on behalf of the Trust, to direct the Trustee to authenticate
and deliver each Series of Notes (or Class of such Series). 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 and
each Series Supplement and the related Series Related Documents. The Owner
Trustee is further authorized from time to time to take such action as the
Certificate Majority recommends with respect to the Basic Documents and each
Series Supplement and the related Series Related Documents so long as such
activities are consistent with the terms of the Basic Documents and each
Series Supplement and the related Series Related Documents.
.2. 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 to administer the Trust in accordance with
the provisions of this Agreement and in the interest of the Holders, subject
to the Basic Documents and, with respect to Certificates, each Series
Supplement and the related Series Related Documents. Notwithstanding the
foregoing, the Owner Trustee shall be deemed to have discharged its duties
and responsibilities hereunder and under the Basic Documents and, with
respect to Certificates, each Series Supplement and the related Series
Related Documents to the extent the Master Servicer has agreed in the Master
Sale and Servicing Agreement to perform any act or to discharge any duty of
the Trust or the Owner Trustee hereunder or under any Basic Document and,
with respect to Certificates, each Series Supplement and the related Series
Related Documents, and the Owner Trustee shall not be liable for the default
or failure of the Master Servicer to carry out its obligations under the
Master Sale and Servicing Agreement.
18
.3. ACTION UPON INSTRUCTION. (a) Subject to Article IV, the
Certificate Majority shall have the exclusive right to direct the actions of
the Owner Trustee in the management of the Trust, so long as such
instructions are not inconsistent with the express terms set forth herein, in
any Basic Document or, with respect to Certificates, in any Series Supplement
or in any Series Related Document. The Certificate Majority shall not
instruct the Owner Trustee in a manner inconsistent with this Agreement or
the Basic Documents or, with respect to Certificates, any Series Supplement
or any Series Related Document.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document or, with respect to Certificates, any
Series Supplement or any Series Related Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner Trustee or
is contrary to the terms hereof or of any Basic Document or, with respect to
Certificates, any Series Supplement or any Series Related Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document or, with respect to Certificates, any Series
Supplement or any Series Related Document, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate under the circumstances) to
the Certificate Majority requesting instruction as to the course of action to
be adopted, and to the extent the Owner Trustee acts in good faith in
accordance with any written instruction of the Certificate Majority, the
Owner Trustee shall not be liable on account of such action to any Person. If
the Owner Trustee shall not have received appropriate instruction within ten
days of such notice (or within such shorter period of time as reasonably may
be specified in such notice or may be necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking such action,
not inconsistent with this Agreement or the Basic Documents or, with respect
to Certificates, any Series Supplement or any Series Related Document, as it
shall deem to be in the best interests of the Certificateholders, and shall
have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Basic Document or, with
respect to Certificates, any Series Supplement or any Series Related Document
or any such provision is ambiguous as to its application, or is, or appears
to be, in conflict with any other applicable provision, or in the event that
this Agreement permits any determination by the Owner Trustee or is silent or
is incomplete as to the course of action that the Owner Trustee is required
to take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Certificate Majority requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any
such instruction received, the Owner Trustee shall not be liable, on account
of such action or inaction, to any Person. If the Owner Trustee shall not
have received appropriate instruction within 10 days of such notice (or
within such shorter period of time as reasonably may be specified in such
19
notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action, not inconsistent
with this Agreement, the Basic Documents or any Series Related Document, as
it shall deem to be in the best interests of the Certificateholders, and
shall have no liability to any Person for such action or inaction.
.4. 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 otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Owner Trustee is a party, except as
expressly provided by the terms of this Agreement or in any document or
written instruction received by the Owner Trustee pursuant to Section 6.3;
and no implied duties or obligations shall be read into this Agreement or any
Basic Document or, with respect to Certificates, any Series Supplement or any
Series Related 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 to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
prepare or file any Commission filing for the Trust or to record this
Agreement or any Basic Document or, with respect to Certificates, any Series
Supplement or any Series Related 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 (solely in
its individual capacity) and that are not related to the ownership or the
administration of the Owner Trust Estate.
.5. 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 or
any Series Related Document and (iii) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section 6.3.
.6. RESTRICTIONS. The Owner Trustee shall not take any action (a)
that is inconsistent with the purposes of the Trust set forth in Section 2.3
or (b) that, to the actual knowledge of the Owner Trustee, would result in
the Trust's becoming taxable as a corporation or a publicly traded
partnership for Federal income tax purposes. The Certificateholders shall not
direct the Owner Trustee to take action that would violate the provisions of
this Section.
20
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
.1. ACCEPTANCE OF TRUSTS AND DUTIES. The Owner Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect
to such trusts but only upon the terms of this Agreement. The Owner Trustee
and the Certificate Paying Agent also agree to disburse all monies actually
received by it constituting part of the Owner Trust Estate upon the terms of
this Agreement or the Basic Documents or, with respect to Certificates, any
Series Supplement or any Series Related Document. The Owner Trustee shall not
be answerable or accountable hereunder or under any Basic Document or, with
respect to Certificates, any Series Supplement or any Series Related Document
under any circumstances, except (i) for its own willful misconduct, bad faith
or negligence, (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.3 expressly made by the Owner Trustee in its
individual capacity, (iii) for liabilities arising from the failure of the
Owner Trustee to perform obligations expressly undertaken by it in the last
sentence of Section 6.4 hereof, (iv) for any investments issued by the Owner
Trustee or any branch or affiliate thereof in its commercial capacity or (v)
for taxes, fees or other charges on, based on or measured by, any fees,
commissions or compensation received by the Owner Trustee. In particular, but
not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made by a Responsible Officer of the Owner Trustee;
(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 Certificate Majority, the Depositor, the Master Servicer or any
Certificateholder;
(c) no provision of this Agreement or any Basic Document or, with
respect to Certificates, any Series Supplement or any Series Related Document
shall require the Owner Trustee to expend or risk funds or otherwise incur
any financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document or, with respect to Certificates, any
Series Supplement or any Series Related Document if the Owner Trustee shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents or,
with respect to Certificates, any Series Supplement or any Series Related
Document, including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution hereof
by the Depositor or for the form, character, genuineness, sufficiency, value
or validity of any of the Owner Trust Estate or for or in respect of the
validity or sufficiency of the Basic Documents or,
21
with respect to Certificates, any Series Supplement or any Series Related
Document, other than the certificate of authentication on the Certificates,
and the Owner Trustee shall in no event assume or incur any liability, duty
or obligation to the Depositor, any Series Support Provider, Trustee, the
Certificate Paying Agent, any Noteholder or to any Certificateholder, other
than as expressly provided for herein, in the Basic Documents or, with
respect to Certificates, any Series Supplement or any Series Related Document;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Depositor, any Series Support Provider, the Trustee or the
Master Servicer under any of the Basic Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform the obligations
under this Agreement, the Basic Documents or, with respect to Certificates,
any Series Supplement or any Series Related Document that are required to be
performed by the Depositor or the Certificate Paying Agent under this
Agreement, by the Trustee under the Indenture, any Series Supplement or any
Series Related Document or the Master Servicer under the Master Sale and
Servicing Agreement or any Series Supplement or any Series Related Document;
and
(g) the Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Basic Document or, with respect to
Certificates, any Series Supplement or any Series Related Document, at the
request, order or direction of the Certificate Majority or any of the
Certificateholders, unless such Certificate Majority or Certificateholders
have offered to the Owner Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by the Owner
Trustee therein or thereby. The right of the Owner Trustee to perform any
discretionary act enumerated in this Agreement or in any Basic Document shall
not be construed as a duty, and the Owner Trustee shall not be answerable for
other than its negligence, bad faith or willful misconduct in the performance
of any such act.
.2. FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish to the
Certificateholders 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 or, with respect to Certificates, any
Series Supplement or any Series Related Document.
.3. REPRESENTATIONS AND WARRANTIES. The Owner Trustee hereby
represents and warrants, in its individual capacity, to the Depositor, the
Holders and any Series Support Provider (which shall have relied on such
representations and warranties in issuing any policy relating to Series
Support), that:
(a) It is a Delaware banking corporation, duly organized and
validly existing in good standing under the laws of the State of Delaware. It
has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement.
22
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any Federal or Delaware state law, governmental rule or regulation governing
the banking or trust powers of the Owner Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or
by-laws or any indenture, mortgage, contract, agreement or instrument to
which it is a party or by which any of its properties may be bound.
.4. 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, secretary or other authorized officers 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 this Agreement or 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
according to such opinion not contrary to this Agreement or any Basic
Document or, with respect to Certificates, any Series Supplement or any
Series Related Document.
.5. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in this
Article VII, in accepting the trusts hereby created [Name of Owner Trustee]
acts solely as Owner Trustee hereunder and not in its individual capacity and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any Basic Document or, with
respect to Certificates, any Series Supplement or any
23
Series Related Document shall look only to the Owner Trust Estate for payment
or satisfaction thereof.
.6. OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES OR RECEIVABLES. The
recitals contained herein and in certificated Certificates (other than the
signature and countersignature of the Owner Trustee on such Certificates)
shall be taken as the statements of the Depositor and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of this Agreement,
of any Basic Document or of the Certificates (other than the signature and
countersignature of the Owner Trustee on certificated Certificates) or the
Notes, or of any Receivable or related documents. The Owner Trustee shall at
no time have any responsibility or liability for or with respect to the
legality, validity and enforceability of any Receivable, or the perfection
and priority of any security interest created by any Receivable in any
Financed Vehicle or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Owner Trust Estate or its
ability to generate the payments to be distributed to Certificateholders
under this Agreement or the Noteholders under the Indenture, including,
without limitation: the existence, condition and ownership of any Financed
Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or of
any intervening assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance by the
Depositor, the Master Servicer or any other Person with any warranty or
representation made under any Basic Document or in any related document or
the accuracy of any such warranty or representation or any action of the
Trustee or the Master Servicer or any subservicer taken in the name of the
Owner Trustee.
.7. OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES. The Owner Trustee
in its individual or any other capacity may become the owner or pledgee of
Certificates or Notes and may deal with the Depositor, the Trustee and the
Master Servicer in banking transactions with the same rights as it would have
if it were not Owner Trustee.
.8. PAYMENTS FROM OWNER TRUST ESTATE. All payments to be made by
the Owner Trustee or any Certificate Paying Agent under this Agreement or any
of the Basic Documents or, with respect to Certificates, any Series
Supplement or any Series Related Document to which the Trust or the Owner
Trustee is a party shall be made only from the income and proceeds of the
Owner Trust Estate and only to the extent that the Owner Trust shall have
received income or proceeds from the Owner Trust Estate to make such payments
in accordance with the terms hereof. [Name of Owner Trustee], or any
successor thereto, in its individual capacity, shall not be liable for any
amounts payable under this Agreement or any of the Basic Documents or, with
respect to Certificates, any Series Supplement or any Series Related Document
to which the Trust or the Owner Trustee is a party.
.9. DOING BUSINESS IN OTHER JURISDICTIONS. Notwithstanding anything
contained to the contrary, neither [Name of Owner Trustee] or any successor
thereto, nor
24
the Owner Trustee shall be required to take any action in any jurisdiction
other than in the State of Delaware if the taking of such action will, even
after the appointment of a co-trustee or separate trustee in accordance with
Section 10.5 hereof, (i) require the consent or approval or authorization or
order of or the giving of notice to, or the registration with or the taking
of any other action in respect of, any state or other governmental authority
or agency of any jurisdiction other than the State of Delaware; (ii) result
in any fee, tax or other governmental charge under the laws of the State of
Delaware becoming payable by [Name of Owner Trustee] (or any successor
thereto); or (iii) subject [Name of Owner Trustee] (or any successor thereto)
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by [Name of Owner Trustee] (or any successor thereto) or the
Owner Trustee, as the case may be, contemplated hereby.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
.1. OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between Household and the Owner
Trustee, and the Owner Trustee shall be entitled to be reimbursed by the
Depositor 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 or under the Basic Documents or, with respect to Certificates,
under any Series Supplement or under any Series Related Documents.
.2. INDEMNIFICATION. The Depositor shall be liable as primary
obligor for, and shall indemnify the Owner Trustee (in its individual and
trust capacities) and its officers, directors, successors, assigns, agents
and servants (collectively, the "Indemnified Parties") from and against, any
and all liabilities, obligations, losses, damages, taxes, claims, actions and
suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature
whatsoever (collectively, "Expenses") which may at any time be imposed on,
incurred by, or asserted against the Owner Trustee (in its trust or
individual capacities) or any Indemnified Party in any way relating to or
arising out of this Agreement or the Basic Documents or, with respect to
Certificates, any Series Supplement, any series Related Documents, the Owner
Trust Estate, the administration of the Owner Trust Estate or the action or
inaction of the Owner Trustee hereunder, except only that the Depositor shall
not be liable for or required to indemnify the Owner Trustee from and against
Expenses arising or resulting from any of the matters described in the third
sentence of Section 7.1. The indemnities contained in this Section 8.2 and
the rights under Section 8.1 shall survive the resignation or termination of
the Owner Trustee or the termination of this Agreement. In any event of any
claim, action or proceeding for which indemnity will be sought pursuant to
this Section, the Owner Trustee's choice of legal counsel shall be subject to
the approval of the Depositor which approval shall not be unreasonably
withheld.
25
.3. PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid to the Owner
Trustee in its Trust Capacity pursuant to this Article VIII shall be deemed
not to be a part of the Owner Trust Estate immediately after such payment and
any amounts so paid to the Owner Trustee, in its individual capacity shall
not be so paid out of the Owner Trust Estate but shall be the property of the
Owner Trustee in its individual capacity.
.4. NON-RECOURSE OBLIGATIONS. Notwithstanding anything in this
Agreement or any Basic Document or, with respect to Certificates, any Series
Supplement or any Series Related Document, the Owner Trustee agrees in its
individual capacity and in its capacity as Owner Trustee for the Trust that
all obligations of the Trust to the Owner Trustee individually or as Owner
Trustee for the Trust shall be recourse to the Owner Trust Estate only and
specifically shall not be recourse to the assets of any Certificateholder.
ARTICLE IX
TERMINATION OF AGREEMENT
.1. TERMINATION OF AGREEMENT. (a) This Agreement shall terminate
and the Trust shall wind up, dissolve and be of no further force or effect
upon the latest to occur of (i) the maturity or other liquidation of the last
Receivable (including the optional purchase by the Depositor or the Master
Servicer of the corpus of the Trust as described in Section 11.1 of the
Master Sale and Servicing Agreement) and the subsequent distribution of
amounts in respect of such Receivables as provided in the Basic Documents
and, with respect to amounts released from the Lien of the Indenture,
distribution thereof to the Certificateholders, or (ii) the payment to
Noteholders and Certificateholders of each Series of all amounts required to
be paid to them pursuant to the Indenture and this Agreement, including, with
respect to amounts released from the Lien of the Indenture, distribution
thereof to the Certificateholders, and the payment to any Series Support
Provider of all amounts payable or reimbursable to it pursuant to the related
Series Supplement; PROVIDED, HOWEVER, that the rights to indemnification
under Section 8.2 and the rights under Section 8.1 shall survive the
termination of the Trust. The Master Servicer shall promptly notify the Owner
Trustee of any prospective termination pursuant to this Section 9.1. The
bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or Owner Trust
Estate nor (z) otherwise affect the rights, obligations and liabilities of
the parties hereto.
(b) Except as provided in clause (a), neither the Depositor nor any
other Certificateholder shall be entitled to revoke or terminate the Trust.
(c) If any Certificates are in certificated form, notice of any
termination of a Series Trust Estate, specifying the Distribution Date upon
which the Certificateholders of such Series shall surrender their
Certificates to the Certificate
26
Paying Agent for payment of the final distribution and cancellation, shall be
given by the Owner Trustee by letter to Certificateholders of such Series
mailed within five Business Days of receipt of notice of such termination
given pursuant to Section 9.1(a) hereof, stating (i) the Distribution Date
upon or with respect to which final payment of the Certificates of such
Series shall be made upon presentation and surrender of the Certificates of
such Series at the office of the Certificate Paying Agent therein designated,
(ii) the amount of any such final payment, (iii) that the Record Date
otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates of such
Series at the office of the Certificate Paying Agent therein specified and
(iv) interest will cease to accrue on the Certificates of such Series. The
Owner Trustee shall give such notice to the Certificate Registrar (if other
than the Owner Trustee) and the Certificate Paying Agent at the time such
notice is given to Certificateholders. Upon presentation and surrender of the
Certificates of such Series, the Certificate Paying Agent shall cause to be
distributed to Certificateholders of such Series amounts distributable
pursuant to the related Series Supplement.
(d) If any Certificates are in certificated form, in the event that
all of the Certificateholders holding certificated Certificates of such
Series shall not surrender their Certificates for cancellation within six
months after the date specified in the above-mentioned written notice, the
Certificate Paying Agent shall give a second written notice to the remaining
Certificateholders holding certificated Certificates of such Series to
surrender their Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
all the certificated Certificates of such Series shall not have been
surrendered for cancellation, the Certificate Paying Agent may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders holding certificated Certificates
concerning surrender of their Certificates, and the cost thereof shall be
paid out of the funds and other Series Trust Estate assets that shall remain
subject to this Agreement. Any funds remaining in the Trust after exhaustion
of such remedies shall be distributed, subject to applicable escheat laws, by
the Certificate Paying Agent to the Depositor and Holders shall look solely
to the Depositor for payment.
(e) Any funds remaining in the Trust after funds for final
distribution have been distributed or set aside for distribution shall be
distributed by the Certificate Paying Agent to the Depositor.
(f) Upon the winding up of the Trust and its dissolution, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with
the provisions of Section 3810 of the Business Trust Statute.
27
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
.1. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner Trustee
shall at all times be a corporation (i) satisfying the provisions of Section
3807(a) of the Business Trust Statute; (ii) authorized to exercise corporate
trust powers; (iii) having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or State
authorities; (iv) having (or having a parent which has) a rating of at least
Baa3 by Moody's or A-1 by Standard & Poors; and (v) acceptable to the
Certificateholders. If such corporation 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, 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 10.2.
.2. 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 (or in the event that the Depositor
is not the sole Certificateholder, the Certificate Majority), any Series
Support Provider and the Master Servicer. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Owner Trustee,
meeting the qualifications set forth in Section 10.1 herein, by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the resigning Owner Trustee and one copy to the successor Owner Trustee,
provided that the Depositor shall have received written confirmation from
each of the Rating Agencies that the proposed appointment will not result in
an increased capital charge to any Series Support Provider by either of the
Rating Agencies. If no successor Owner Trustee shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Owner Trustee or any Series Support Provider
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 10.1 and shall fail to resign after
written request therefor by the Depositor, 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 Depositor may remove the Owner Trustee.
If the Depositor shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Depositor shall promptly appoint a
successor Owner Trustee, meeting the qualifications set forth in Section 10.1
herein, by written instrument, in duplicate, one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed, one copy to any
Series Support
28
Provider and one copy to the successor Owner Trustee and payment of all fees
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 10.3 and payment of all fees and expenses
owed to the outgoing Owner Trustee. The Depositor shall provide notice of
such resignation or removal of the Owner Trustee to each of the Rating
Agencies.
.3. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee appointed
pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Depositor, the Master Servicer, each Series Support Provider 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 Depositor 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 be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Master Servicer shall mail notice of the
successor of such Owner Trustee to all Certificateholders, the Trustee, the
Noteholders and the Rating Agencies. If the Master Servicer shall fail 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 Master Servicer.
Any successor Owner Trustee appointed pursuant to this Section 10.3
shall promptly file an amendment to the Certificate of Trust with the
Secretary of State identifying the name and principal place of business of
such successor Owner Trustee in the State of Delaware.
.4. 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
29
pursuant to Section 10.1, 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 (i) that the Owner Trustee
shall mail notice of such merger or consolidation to the Rating Agencies, the
Depositor and the Master Servicer and (ii) any successor Owner Trustee shall
file an amendment to the Certificate of Trust as required by Section 10.3.
.5. 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
Master Servicer 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 and any Series Support Provider 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 Master Servicer and the Owner Trustee
may consider necessary or desirable. If the Master Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a
request so to do, the Owner Trustee, subject to the approval of the
Certificate Majority (which approval shall not be unreasonably withheld),
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 10.1 and no notice of
the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the 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;
(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 Master Servicer and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
30
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 effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the 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 Master Servicer.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect
of this Agreement on its behalf and in its name. If 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
.1. SUPPLEMENTS AND AMENDMENTS. (a) This Agreement may be amended
from time to time by the parties hereto, by a written instrument signed by
each of them, without the consent of any of the Securityholders; PROVIDED
that an Opinion of Counsel for the Depositor (which Opinion of Counsel may,
as to factual matters, rely upon Officer's Certificates of the Depositor) is
addressed and delivered to the Owner Trustee, dated the date of any such
amendment, to the effect that the conditions precedent to any such amendment
have been satisfied and the Depositor shall have delivered to the Owner
Trustee an Officer's Certificate dated the date of any such Amendment,
stating that the Depositor reasonably believes that such Amendment will not
have a material adverse effect on the Securityholders.
(b) This Agreement may also be amended from time to time with the
consent of the Holders of the Certificates and Notes evidencing not less than
50% of the aggregate unpaid principal amount of the Security Balance of all
affected Securityholders for which the Seller has not delivered an Officer's
Certificate stating that there is no material adverse effect, for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement or of modifying in any manner the rights of
the Securityholders; PROVIDED, HOWEVER, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments received
that are required to be distributed on any Security without the consent of
the related Securityholder, or (ii) reduce the aforesaid percentage of
Securities the Holder of which are required to consent to any such amendment,
without the consent of the Holders of all
31
such Certificates then outstanding or cause any material adverse tax
consequences to any Certificateholders or Noteholders.
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 each Certificateholder, the Trustee and each of the
Rating Agencies.
It shall not be necessary for the consent of Certificateholders,
the Noteholders or the 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 Certificateholders
provided for in this Agreement or in any other Basic Document) and of
evidencing the authorization of the execution thereof by Certificateholders
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.
(c) The Owner Trustee shall not be required to enter into any
amendment to this Agreement which adversely affects its own rights, duties or
immunities under this Agreement.
.2. NO LEGAL TITLE TO OWNER TRUST ESTATE IN CERTIFICATEHOLDERS. The
Certificateholders shall not have legal title to any part of the related
Series Trust Estate. The Certificateholders shall be entitled to receive
distributions with respect to their 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 Certificateholders to and
in their ownership interest in the related Series 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
related Series Trust Estate.
.3. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Certificateholders, the Master Servicer and, to the extent expressly provided
herein, any Series Support Provider, the Trustee and the Noteholders, and
nothing in this Agreement, 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.
.4. 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 personally delivered, delivered by overnight courier or
mailed first class mail or certified mail, in each case return receipt
requested, and shall be deemed to have been duly given upon receipt, if to
the Owner Trustee, addressed to the Corporate Trust Office; if to the
Depositor, addressed to Household Auto Receivables Corporation, 0000 Xxxx
Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000, with a copy to Household Finance
Corporation, 0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, Attn:
Treasurer; if to any Series Support
32
Provider, at the address of such Series Support Provider as set forth in the
related Series Supplement; 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 a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. 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.
.5. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
.6. SEPARATE COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
.7. ASSIGNMENTS; SERIES SUPPORT PROVIDER. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. This Agreement shall also inure
to the benefit of any Series Support Provider for so long as a Support
Default shall not have occurred and be continuing. Without limiting the
generality of the foregoing, all covenants and agreements in this Agreement
which confer rights upon any Series Support Provider shall be for the benefit
of and run directly to any Series Support Provider, and any Series Support
Provider shall be entitled to rely on and enforce such covenants, subject,
however, to the limitations on such rights provided in this Agreement and the
Basic Documents. The Series Support Provider, if any, may disclaim any of its
rights and powers under this Agreement (but not its duties and obligations
under any Series Support Provider) upon delivery of a written notice to the
Owner Trustee.
.8. COVENANTS OF THE DEPOSITOR. The Depositor will not at any time
institute against the Trust any bankruptcy proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this Agreement or any of
the Basic Documents.
.9. NO PETITION. The Owner Trustee (not in its individual capacity
but solely as Owner Trustee), by entering into this Agreement, each
Certificateholder, by accepting a Certificate, and the Trustee and each
Noteholder by accepting the benefits of this Agreement, hereby covenants and
agrees that they will not at any time institute against the Depositor, or
join in any institution against the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar
law in connection with any
33
obligations relating to the Certificates, the Notes, this Agreement, any of
the Basic Documents, any Series Supplement or any Series Related Documents.
.10. NO RECOURSE. Each Certificateholder by accepting a Certificate
acknowledges that such Certificateholder's Certificates represent beneficial
interests in the related Series Trust Estate only and do not represent
interests in or obligations of the Master Servicer, the Depositor, the Owner
Trustee, the Trustee, any Series Support Provider 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 Agreement, the
Certificates, the Basic Documents, any Series Supplement or any Series
Related Documents.
.11. 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.
.12. GOVERNING LAW. THIS AGREEMENT SHALL BE 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.
.13. MASTER SERVICER. The Master Servicer is authorized to prepare,
or cause to be prepared, execute and deliver on behalf of the Trust all such
documents, reports, filings, instruments, certificates and opinions as it
shall be the duty of the Trust or Owner Trustee to prepare, file or deliver
pursuant to the Basic Documents, any Series Supplement or any Series Related
Documents. Upon written request, the Owner Trustee shall execute and deliver
to the Master Servicer a limited power of attorney appointing the Master
Servicer the Trust's agent and attorney-in-fact to prepare, or cause to be
prepared, execute and deliver all such documents, reports, filings,
instruments, certificates and opinions.
34
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers hereunto duly authorized as
of the day and year first above written.
[Name of Owner Trustee]
Owner Trustee
By:_________________________________
Name:
Title:
HOUSEHOLD AUTO RECEIVABLES
CORPORATION
Depositor
By:_________________________________
Name:
Title:
Acknowledged and Agreed:
HOUSEHOLD FINANCE CORPORATION
Master Servicer
By:____________________________
Name:
Title:
[Name of Trustee],
not in its individual capacity
but solely as Certificate Paying Agent
By:____________________________
Name:
Title:
[Signature Page for Agreement]
EXHIBIT A
[FORM OF SERIES _____ TRUST CERTIFICATE]
NUMBER
HOUSEHOLD AUTOMOTIVE TRUST ____
SERIES _____ CERTIFICATE
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS SERIES _____ CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE SECURITIES ACT
AND SUCH STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS
CERTIFICATE MAY BE MADE UNLESS SUCH RESALE OR TRANSFER (A) IS MADE IN
ACCORDANCE WITH SECTION 3.4 OF THE AGREEMENT PERTAINING TO THE HOUSEHOLD
AUTOMOTIVE TRUST ___ (THE "AGREEMENT") AND (B) IS MADE (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (ii) IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS, (iii) TO THE SELLER OR (iv) TO A PERSON
WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT THAT IS AWARE THAT
THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND (C)
UPON THE SATISFACTION OF CERTAIN OTHER REQUIREMENTS SPECIFIED IN THE
AGREEMENT. NEITHER THE DEPOSITOR, THE MASTER SERVICER, THE TRUST NOR THE
OWNER TRUSTEE IS OBLIGATED TO REGISTER THE SERIES ______ CERTIFICATES UNDER
THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS.
---------------------------------
SERIES ____ CERTIFICATE
evidencing a beneficial ownership interest in the assets of the Trust relating
to the Series ____ Trust Estate, which includes a pool of motor vehicle retail
installment sale contracts sold to the Trust by Household Auto Receivables
Corporation.
(This Series ______ Certificate does not represent an interest in or obligation
of Household Auto Receivables Corporation or any of its Affiliates, except to
the extent described below.)
THIS CERTIFIES THAT Household Auto Receivables Corporation is the
registered owner of a nonassessable, fully-paid, beneficial ownership
interest representing a ___% Percentage Interest in the assets of Household
Automotive Trust ___(the
A-1
"Trust") formed by Household Auto Receivables Corporation, a Nevada
corporation (the "Depositor") and the Series _____ Trust Estate.
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
[Name of Owner Trustee]
not in its individual
capacity but solely as
Owner Trustee
by _______________________________________________ Authenticating Agent
by ____________________________________________________________________
Household Automotive Trust ___ (the "Trust"), was created pursuant
to a trust agreement, dated as of ____ __, ____ (the "Agreement"), between
the Depositor and _______________, as owner trustee (the "Owner Trustee") as
supplemented by a Series _____ Supplement dated as of ____ __, ____ (the
"Series _____ Supplement"). A summary of certain of the pertinent provisions
of the Agreement and Series ____ Supplement is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Agreement and the Series _____ Supplement.
This certificate is one of the duly authorized certificates of
Trust of Household Automotive Trust ___ designated as Series _____
Certificates.
This Series _____ Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement and the Series _____
Supplement, to which Agreement the holder of this Series ______ Certificate
by virtue of the acceptance hereof assents and by which such holder is bound.
The property of the Trust consists of the Series _____ Trust Estate which
includes a pool of motor vehicle retail installment sale contracts (the
"Receivables"), all monies due thereunder on or after specified Cutoff Dates,
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 Agreement and the Master Sale and
Servicing Agreement and each related Transfer Agreement, all right, to and
interest of, the Depositor in and to the Master Receivables Purchase
Agreement dated as of ___ __, ____ between Household Automotive Finance
Corporation and the Depositor and each Receivables Purchase Agreement
Supplement and all proceeds of the foregoing.
Series _____ Notes have been issued pursuant to an Indenture dated
as of ____ __, ____ (the "Indenture"), among the Trust, Household Finance
Corporation, as Master Servicer and _______________, as Trustee and the
Series _____ Supplement.
A-2
Under the Series _____ Supplement, there will be distributed on the
__ day of each month or, if such ___ day is not a Business Day, the next
Business Day (the "Distribution Date"), commencing on ______, _____, to the
Person in whose name this Series _____ Certificate is registered at the close
of business on the Business Day preceding such Distribution Date (the "Record
Date") such Series ______ Certificateholder's fractional undivided interest
in any amount to be distributed to Series _____ Certificateholders on such
Distribution Date.
The holder of this Series _____ Certificate acknowledges and agrees
that its rights to receive distributions in respect of this Series _____
Certificate are subordinated to the rights of the Series ____ Noteholders as
described in the Master Sale and Servicing Agreement, the Indenture, the
Agreement and the Series _____ Supplement, as applicable.
Distributions on this Series _____ Certificate will be made as
provided in the Agreement by the Owner Trustee by wire transfer or check
mailed to the Series ____ Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the
making of any notation hereon. Except as otherwise provided in the Agreement
and notwithstanding the above, the final distribution on this Series _____
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 Series ____ Certificate at the office or agency maintained for the
purpose by the Owner Trustee in the Corporate Trust Office.
Reference is hereby made to the further provisions of this Series
______ 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 Series _____ Certificate shall not entitle the holder hereof to any
benefit under the Agreement or the Master Sale and Servicing Agreement or be
valid for any purpose.
THIS SERIES _____ CERTIFICATE SHALL BE 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 Series _____ Certificate to
be duly executed.
HOUSEHOLD AUTOMOTIVE TRUST ___
By: [Name of Owner Trustee] not in its
individual capacity but
solely as Owner Trustee
Dated: By:______________________________
By: ____________________________
Name:
Title:
A-4
(Reverse of Certificate)
The Series _____ Certificates do not represent an obligation of, or
an interest in, the Depositor, the Master Servicer, the Owner Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or
in the Agreement, the Indenture, the Basic Documents or any Series Related
Documents. In addition, this Series _____ 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, as more specifically
set forth herein and in the Master Sale and Servicing Agreement. A copy of
each of the Master Sale and Servicing Agreement, the Agreement and the Series
_____ Supplement 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 any Series _____ Certificateholder upon
written request.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Series _____ Certificate is
registrable in the Certificate Register upon surrender of this Series _____
Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained by the Owner Trustee in the Corporate Trust
Office, accompanied by a written instrument of transfer in form satisfactory
to the Owner Trustee and the Certificate Registrar duly executed by the
holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Series _____ Certificates in authorized
denominations evidencing the same aggregate interest in the Trust will be
issued to the designated transferee. The initial Certificate Registrar
appointed under the Agreement is [Name of Owner Trustee].
The Certificates are issuable as registered Certificates in any
Percentage Interest not to exceed 100%. As provided in the Agreement and
subject to certain limitations therein set forth, Series ____ Certificates
are exchangeable for new Series _____ Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested
by the holder surrendering the same. No service charge will be made for any
such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the person in whose name
this Series _____ Certificate is registered as the owner hereof for all
purposes, and none of the Owner Trustee, the Certificate Registrar nor any
such agent shall be affected by any notice to the contrary.
The Series _____ Certificates may not be acquired by or for the
account of (a) an employee benefit plan (as defined in Section 3(3) of ERISA)
that is subject to the provisions of Title I of ERISA, (b) a plan (as defined
in Section 4975(e) (1) of the Code) that is subject to Section 4975 of the
Code or (c) any entity whose underlying assets include plan assets by reason
of such plan's investment in the entity (each, a "Benefit Plan"). The
A-5
Certificate Registrar shall not register the transfer of a Series _____
Certificate unless the transferee has delivered to the Owner Trustee a
representation letter in form and substance satisfactory to the Trustee to
the effect that the transferee is not, and is not acquiring the Series _____
Certificate for the account of, a Benefit Plan.
The recitals contained herein shall be taken as the statements of
the Depositor or the Master Servicer, as the case may be, and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner
Trustee makes no representations as to the validity or sufficiency of this
Series _____ Certificate or of any Receivable or related document.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual or
facsimile signature, this Series _____ Certificate shall not entitle the
holder hereof to any benefit under the Agreement or the Master Sale and
Servicing Agreement or be valid for any purpose.
A-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
_______________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
_______________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
____________________ Attorney to transfer said Certificate on the books of the
Certificate Registrar, with full power of substitution in the premises.
Dated:
_____________________________________*
Signature Guaranteed:
_____________________________________*
-------------
* NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Certificate Registrar, which requirements include membership
or participation in STAMP or such other "signature guarantee program" as may be
determined by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
A-7
EXHIBIT B
[FORM OF CERTIFICATE OF TRUST]
CERTIFICATE OF TRUST
OF
HOUSEHOLD AUTOMOTIVE TRUST ___
THIS Certificate of Trust of Household Automotive Trust ___ (the
"Trust") is being duly executed and filed on behalf of the Trust by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 DEL. C. 3801 ET SEQ.) (the "Act").
1. NAME. The name of the business trust formed by this
Certificate of Trust is Household Automotive Trust ___.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust in the State of Delaware are _____________________, ________________,
________________, _____________, _________, Attn: _______________________.
3. SERIES TRUST. The Trust may issue series of beneficial interests,
having separate rights, powers or duties with respect to property or obligations
of the Trust, as provided in 12 Del. C. 3804 and 3806(b)(2), such that the
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular series shall be enforceable
against the assets of such series only, and not against the assets of the Trust
generally.
4. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
[Name of Owner Trustee], not in its
individual capacity but solely as Trustee
By: _________________________
Name:
Title:
A-8
