EXHIBIT 99.1
------------
EXECUTION COPY
AMENDED AND RESTATED TRUST AGREEMENT
between
XXXXXX XXXXXXX ABS CAPITAL II INC.,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of June 1, 2003
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Capitalized Terms.............................................................................1
Section 1.02. Other Definitional Provisions.................................................................4
ARTICLE II
ORGANIZATION
Section 2.01. Name..........................................................................................5
Section 2.02. Office........................................................................................5
Section 2.03. Purposes and Powers...........................................................................5
Section 2.04. Appointment of Owner Trustee..................................................................6
Section 2.05. Initial Capital Contribution of Trust Estate..................................................6
Section 2.06. Declaration of Trust..........................................................................6
Section 2.07. Characterization of the Trust for Tax Purposes................................................6
Section 2.08. Liability of Certificateholders...............................................................7
Section 2.09. Title to Trust Property.......................................................................7
Section 2.10. Situs of Trust................................................................................7
Section 2.11. Representations, Warranties and Covenants of the Depositor....................................7
Section 2.12. Federal Income Tax Allocations................................................................8
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership.............................................................................8
Section 3.02. The Trust Certificates........................................................................9
Section 3.03. Execution, Authentication and Delivery of Trust Certificates..................................9
Section 3.04. Registration of Transfer and Exchange of Trust Certificates...................................9
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates......................................11
Section 3.06. Persons Deemed Owners........................................................................11
Section 3.07. Access to List of Certificateholders' Names and Addresses....................................11
Section 3.08. Maintenance of Office or Agency..............................................................12
Section 3.09. Appointment of Paying Agent..................................................................12
Section 3.10. Definitive Trust Certificates................................................................13
i
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice with Respect to Certain Matters.................................................13
Section 4.02. Action by Certificateholders with Respect to Certain Matters.................................15
Section 4.03. Restrictions on Certificateholders' Power....................................................15
Section 4.04. Majority Control.............................................................................15
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Trust Account...............................................................15
Section 5.02. Application of Trust Funds...................................................................16
Section 5.03. Method of Payment............................................................................17
Section 5.04. No Segregation of Moneys; No Interest........................................................17
Section 5.05. Accounting and Reports to Certificateholders, the Internal Revenue Service and Others........17
Section 5.06. Signature on Returns; Tax Matters Partner....................................................18
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority............................................................................18
Section 6.02. General Duties...............................................................................18
Section 6.03. Action upon Instruction......................................................................18
Section 6.04. No Duties Except as Specified in this Agreement or in Instructions...........................19
Section 6.05. No Action Except Under Specified Documents or Instructions...................................19
Section 6.06. Restrictions.................................................................................20
Section 6.07. Administrative Duties........................................................................20
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties..............................................................24
Section 7.02. Furnishing of Documents......................................................................25
Section 7.03. Representations and Warranties...............................................................25
Section 7.04. Reliance; Advice of Counsel..................................................................26
Section 7.05. Not Acting in Individual Capacity............................................................26
Section 7.06. Owner Trustee Not Liable for Trust Certificates or for Receivables...........................26
Section 7.07. Owner Trustee May Own Trust Certificates and Notes...........................................27
Section 7.08. Doing Business in Other Jurisdictions........................................................27
Section 7.09. Paying Agent, Certificate Registrar and Authenticating Agent.................................27
ii
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses............................................................27
Section 8.02. Indemnification..............................................................................28
Section 8.03. Payments to the Owner Trustee................................................................28
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement...............................................................28
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee...................................................29
Section 10.02. Resignation or Removal of Owner Trustee......................................................30
Section 10.03. Successor Owner Trustee......................................................................30
Section 10.04. Merger or Consolidation of Owner Trustee.....................................................31
Section 10.05. Appointment of Co-Trustee or Separate Trustee................................................31
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments...................................................................32
Section 11.02. No Legal Title to Trust Estate in Certificateholders.........................................33
Section 11.03. Limitations on Rights of Others..............................................................34
Section 11.04. Notices......................................................................................34
Section 11.05. Severability.................................................................................34
Section 11.06. Separate Counterparts........................................................................34
Section 11.07. Successors and Assigns.......................................................................35
Section 11.08. Covenants of the Depositor...................................................................35
Section 11.09. No Petition..................................................................................35
Section 11.10. No Recourse..................................................................................35
Section 11.11. Headings.....................................................................................35
Section 11.12. GOVERNING LAW................................................................................35
Section 11.13. Trust Certificate Transfer Restrictions......................................................35
Section 11.14. Xxxxxxxx-Xxxxx...............................................................................36
Section 11.15. Acceptance of Terms of Agreement.............................................................36
iii
EXHIBITS
Exhibit A Form of Trust Certificate...................................................................A-1
Exhibit B Form of Transfer Certificate................................................................B-1
Exhibit C Form of Investment Letter...................................................................C-1
iv
This AMENDED AND RESTATED TRUST AGREEMENT, dated as of June 1, 2003, is
between XXXXXX XXXXXXX ABS CAPITAL II INC., a Delaware corporation, as
depositor (the "Depositor"), and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as owner trustee (the "Owner Trustee").
WHEREAS, the Owner Trustee and the Depositor entered into a Trust
Agreement dated as of June 1, 2003 (the "Original Trust Agreement"); and
WHEREAS, the Original Trust Agreement is being amended and restated as of
June 1, 2003;
NOW, THEREFORE, the Depositor and the Owner Trustee hereby agree that the
Original Trust Agreement shall be amended and restated as follows:
ARTICLE I
DEFINITIONS
Section 1.01. 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 Trust Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Bankruptcy Action" shall have the meaning assigned to such term in
Section 4.01.
"Basic Documents" means the Sale and Servicing Agreement, the Indenture,
this Agreement, the Assignment, Assumption and Recognition Agreement and other
documents (including any Letter of Representations with the Depository Trust
Company) and certificates delivered in connection therewith.
"Benefit Plan" shall have the meaning assigned to such term in Section
11.13.
"Certificate Distribution Account" shall have the meaning assigned to
such term in Section 5.01.
"Certificate of Trust" means the certificate of trust of the Issuer
substantially in the form of Exhibit A to the Original Trust Agreement.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned in and the registrar appointed pursuant to Section 3.04.
"Class A-1 Notes" shall mean the 1.46% Asset Backed Notes, Class A-1,
issued pursuant to the Indenture.
"Class A-2 Notes" shall mean the 2.17% Asset Backed Notes, Class A-2,
issued pursuant to the Indenture.
"Class B Notes" shall mean the 2.22% Asset Backed Notes, Class B, issued
pursuant to the Indenture.
"Class C Notes" shall mean the 3.48% Asset Backed Notes, Class C, issued
pursuant to the Indenture.
"Class D Notes" shall mean the 5.50% Asset Backed Notes, Class D, issued
pursuant to the Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Administration, or at such other address in the
State of Delaware 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 at the address (which shall be in the State of
Delaware) designated by such successor Owner Trustee by notice to the
Certificateholders and the Depositor.
"Depositor" shall mean Xxxxxx Xxxxxxx ABS Capital II Inc., and its
successors, in its capacity as depositor hereunder.
"Eligible Deposit Account" means either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States of America or any State, having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution shall have a credit rating from each
Rating Agency in one of its generic rating categories that signifies
investment grade.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Expenses" shall have the meaning assigned to such term in Section 8.02.
"Holder" or "Certificateholder" shall mean a Person in whose name a Trust
Certificate is registered.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.02.
"Indenture" shall mean the Indenture, dated as of June 1, 2003 between
the Trust and Xxxxx Fargo Bank Minnesota, National Association, as Indenture
Trustee, as amended, supplemented or otherwise modified from time to time.
2
"Indenture Trustee" shall mean Xxxxx Fargo Bank Minnesota, National
Association, a national banking association, not in its individual capacity,
but as Indenture Trustee under the Indenture, or any successor Indenture
Trustee under the Indenture.
"Investment Letter" shall have the meaning assigned to such term in
Section 3.04.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the Class B
Notes, the Class C Notes and the Class D Notes.
"Original Trust Agreement" has the meaning set forth in the recitals.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Paying Agent" shall mean any paying agent or co-paying agent appointed
pursuant to Section 3.09 and shall initially be Xxxxx Fargo Bank Minnesota,
National Association.
"Percentage Interest" means, as to any Trust Certificate, the percentage
interest, specified on the face thereof, in the distributions on the Trust
Certificates pursuant to this Agreement.
"Person" shall mean any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
national banking association, unincorporated organization or government or any
agency or political subdivision thereof or any other entity.
"Rating Agency" shall have the meaning set forth in the Sale and
Servicing Agreement.
"Rating Agency Condition" shall have the meaning set forth in the Sale
and Servicing Agreement.
"Record Date" shall mean, with respect to any Distribution Date, the last
day of the month preceding such Distribution Date.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement dated as of June 1, 2003, among the Trust, as issuer, the Depositor,
Xxxxxx Xxxxxxx Asset Funding, Inc., as seller, The Huntington National Bank,
as servicer, and Xxxxx Fargo Bank Minnesota, National Association, as
indenture trustee, as the same may be amended, supplemented or otherwise
modified from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities Act" shall mean the Securities Act of 1933, as amended.
3
"Similar Law" means any foreign, federal, state or local law with
provisions substantially similar to Title I of ERISA or Section 4975 of the
Code.
"Statutory Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Xxxxxx.xx. 3801 et seq., as the same may be amended
from time to time.
"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 Xxxxxx Xxxxxxx Auto Loan Trust 2003-HB1 formed by the
Original Trust Agreement.
"Trust Certificate" shall mean a certificate evidencing the beneficial
interest of a Certificateholder in the Trust, substantially in the form
attached hereto as Exhibit A.
"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 Sale and Servicing Agreement, all funds on deposit from time to time in
the Trust Accounts and the Certificate Distribution Account, and all other
property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to the Sale and Servicing Agreement.
Section 1.02. Other Definitional Provisions.
(a) Capitalized terms used and not otherwise defined herein have the
meanings assigned to them in the Sale and Servicing Agreement or, if not
defined therein, in the Indenture.
(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. 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; "or" includes "and/or"; and the
term "including" shall mean "including without limitation".
4
(e) The definitions contained in this Agreement are applicable to the
singular and plural forms of such terms and to the masculine, feminine and
neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
ARTICLE II
ORGANIZATION
Section 2.01. Name. The Trust heretofore created and continued hereby is
known as "Xxxxxx Xxxxxxx Auto Loan Trust 2003-HB1," 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.
Section 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage
in the following activities and the Owner Trustee acting on behalf of the
Trust shall have the power and authority:
(a) to issue the Notes pursuant to the Indenture and the Trust
Certificates pursuant to this Agreement and to sell the Notes and the Trust
Certificates, in each case in accordance with the Basic Documents;
(b) with the proceeds of the sale of the Notes and the Trust
Certificates, to purchase or otherwise acquire the Receivables, to pay the
organizational, start-up and transactional expenses of the Trust and to pay
the balance of such proceeds to the Depositor pursuant to the Sale and
Servicing Agreement;
(c) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to the terms of the Sale and Servicing Agreement
any portion of the Trust Estate released from the Lien of, and remitted to the
Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Basic Documents
to which it is to be a party;
(e) 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
5
(f) subject to compliance with the Basic Documents, to engage in such
other activities as may be required in connection with conservation of the
Trust Estate and the making of distributions to the Certificateholders and the
Noteholders.
The Owner Trustee acting on behalf of 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 or the Basic Documents.
Section 2.04. 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.
Section 2.05. Initial Capital Contribution of Trust Estate. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee,
as of the date hereof, the sum of $1. 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 Trust Estate and shall be
deposited in the Certificate Distribution Account. 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.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, subject to
the obligations of the Trust under the Basic Documents. Effective as of the
date hereof, the Owner Trustee shall have all rights, powers and duties set
forth herein and in the Statutory Trust Statute with respect to accomplishing
the purposes of the Trust.
Section 2.07. Characterization of the Trust for Tax Purposes. (a) It is
the intention of the parties hereto that the Trust constitute a statutory
trust under the Statutory Trust Statute and that this Agreement constitute the
governing instrument of such statutory trust. It is the intention of the
parties hereto that, solely for income and franchise tax purposes: (1) if
there is one beneficial owner of the Trust Certificates, the Trust shall be
treated as a grantor trust or as a disregarded entity, and (2) if there is
more than one beneficial owner of the Trust Certificates, the Trust shall be
treated as a grantor trust (or to the extent required, as a partnership) for
income and franchise tax purposes. If the Trust is required to be treated as a
partnership for tax purposes, the assets of the partnership will be the
Receivables and other assets held by the Trust, the partners of the
partnership will be the Certificateholders and any Class of Notes treated as
equity for tax purposes, and the Notes (other than any Class treated as equity
for tax purposes) will be treated as debt for tax purposes. The parties agree
that, unless otherwise required by appropriate tax authorities, the Trust and
to the extent applicable, the Certificateholders, will file or cause to be
filed annual or other returns, reports and other forms consistent with the
characterization of the Trust provided in the preceding sentence for such tax
purposes and will not take any position contrary to this characterization in
any federal or state tax filings.
6
(b) The Owner Trustee shall not file or join in, and each
Certificateholder by acceptance of its Trust Certificates agrees that it shall
not file or join in, an election to treat the Trust as an association taxable
as a corporation for tax purposes.
Section 2.08. Liability of Certificateholders. The Certificateholders
(including the Depositor or any Affiliate thereof) shall be entitled to the
same limitation of personal liability extended to stockholders of private
corporations for profit organized under the general corporation law of the
State of Delaware.
Section 2.09. Title to Trust Property. Subject to the Indenture, legal
title to all the 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 Trust Estate to be vested in a trustee or trustees,
in which case title shall be deemed to be vested in the Owner Trustee, a
co-trustee or a separate trustee, as the case may be.
Section 2.10. Situs of Trust. The Trust will be located in the State of
Delaware and administered in the State of Delaware or the State of New York.
All bank accounts maintained by the Owner Trustee on behalf of the Trust shall
be located in the State of Delaware or the State of New York. The Trust shall
not have any employees; provided, however, that nothing herein shall restrict
or prohibit the Owner Trustee from having employees within or without the
State of Delaware. Payments will be received by the Trust only in Delaware or
New York, and payments will be made by the Trust only from Delaware or New
York. The only office of the Trust will be at the Corporate Trust Office in
the State of Delaware.
Section 2.11. Representations, Warranties and Covenants of the Depositor.
The Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly organized and validly existing as a corporation
in good standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted.
(b) The Depositor 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
or the conduct of its business shall require such qualifications.
(c) The Depositor has the power and authority to execute and deliver this
Agreement and to carry out its terms; the Depositor has full power and
authority to transfer and assign the property to be transferred and assigned
to and deposited with the Trust and the Depositor has duly authorized such
transfer and assignment and deposit to the Trust by all necessary corporate
action; and the execution, delivery and performance of this Agreement have
been duly authorized by the Depositor by all necessary corporate action.
(d) The Depositor has duly executed and delivered this Agreement, and
this Agreement constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor, in accordance with its terms.
7
(e) 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 certificate of incorporation or
the by-laws of the Depositor, or any indenture, agreement or other instrument
to which the Depositor is a party or by which it is bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the
Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(f) There are no proceedings or investigations pending or threatened
before any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties (i)
asserting the invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or
(iii) seeking any determination or ruling that might materially and adversely
affect the performance by the Depositor of its obligations under, or the
validity or enforceability of, this Agreement.
(g) The representations and warranties of the Depositor in Section 3.02
of the Sale and Servicing Agreement are true and correct.
Section 2.12. Federal Income Tax Allocations. If there is more than one
beneficial owner of the Trust Certificates and the Trust is otherwise treated
as a tax partnership, net income of the Trust for any month as determined for
federal income tax purposes (and each item of income, gain, loss and deduction
entering into the computation thereof) shall be allocated among the
Certificateholders as of the first day following the Record Date, in
proportion to their percentage ownership interest of Trust Certificates on the
Record Date.
If there is more than one beneficial owner of the Trust Certificates, net
losses of the Trust, if any, for any month as determined for federal income
tax purposes (and each item of income, gain, loss and deduction entering into
the computation thereof) shall be allocated among the Certificateholders as of
the first day following the Record Date, in proportion to their percentage
ownership interest of Trust Certificates on the Record Date. If there is more
than one beneficial owner of the Trust Certificates, the Trust is authorized
to modify the allocations in this paragraph if necessary or appropriate, in
its sole discretion, for the allocations to fairly reflect the economic
income, gain or loss to the Certificateholders, or as otherwise required by
the Code.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership. Upon the formation of the Trust by the
execution of the Original Trust Agreement and until the issuance of the Trust
Certificates, the Depositor shall be the sole beneficiary of the Trust.
8
Section 3.02. The Trust Certificates.
(a) The Trust Certificates shall be issued in minimum denominations of a
one percent (1%) Percentage Interest in the Trust. The Trust Certificates
shall be executed on behalf of the Trust by manual or facsimile signature of
an authorized officer of the Owner Trustee. Trust 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 and
shall be valid and binding obligations of the Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Trust Certificates or did not hold such
offices at the date of authentication and delivery of such Trust Certificates.
(b) A transferee of a Trust Certificate, if any, shall become a
Certificateholder, shall become bound by this Agreement and shall be entitled
to the rights and subject to the obligations of a Certificateholder hereunder
upon such transferee's acceptance of a Trust Certificate duly registered in
such transferee's name pursuant to Section 3.04.
Section 3.03. Execution, Authentication and Delivery of Trust
Certificates. On the Closing Date, the Owner Trustee shall cause the Trust
Certificates in an aggregate Percentage Interest equal to 100% to be executed
on behalf of the Trust and authenticated by the Owner Trustee on behalf of the
Trust and delivered to or upon the written order of the Depositor, without
further action by the Depositor, in authorized denominations. No Trust
Certificate shall entitle its Holder to any benefit under this Agreement or be
valid for any purpose unless there shall appear on such Trust Certificate a
certificate of authentication substantially in the form set forth in Exhibit
A, executed by the Owner Trustee or Xxxxx Fargo Bank Minnesota, National
Association, as the Owner Trustee's authenticating agent, by manual signature;
such authentication shall constitute conclusive evidence that such Trust
Certificate shall have been duly authenticated and delivered hereunder. All
Trust Certificates shall be dated the date of their authentication.
When a Trust Certificate is duly executed and issued by the Owner Trustee
and duly authenticated in accordance with this Agreement, the Trust
Certificate will be fully paid, validly issued, nonassessable and entitled to
the benefits of this Agreement.
Section 3.04. Registration of Transfer and Exchange of Trust
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.08, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Owner Trustee shall provide for the registration of Trust Certificates and of
transfers and exchanges of Trust Certificates as herein provided. Xxxxx Fargo
Bank Minnesota, National Association shall be the initial Certificate
Registrar.
The Trust Certificates have not been and will not be registered under the
Securities Act and will not be listed on any exchange. No transfer of a Trust
Certificate shall be made unless such transfer is made pursuant to an
effective registration statement under the Securities Act and any applicable
state securities laws or is exempt from the registration requirements under
said Act and such state securities laws. In the event that a transfer is to be
made in reliance upon an exemption from the Securities Act and state
securities laws, in order to
9
assure compliance with the Securities Act and such laws, the Holder desiring
to effect such transfer and such Holder's prospective transferee shall each
certify to the Owner Trustee or the Certificate Registrar and the Depositor in
writing the facts surrounding the transfer in substantially the forms set
forth in Exhibit B and Exhibit C (the "Investment Letter"). Except in the case
of a transfer as to which the proposed transferee has provided an Investment
Letter with respect to a Rule 144A transaction, there shall also be delivered
to the Owner Trustee or the Certificate Registrar and the Depositor an Opinion
of Counsel that such transfer may be made pursuant to an exemption from the
Securities Act and state securities laws, which Opinion of Counsel shall not
be an expense of the Trust, the Owner Trustee, the Certificate Registrar or
the Indenture Trustee (unless it is the transferee from whom such opinion is
to be obtained) or of the Depositor or the Seller; provided, that such Opinion
of Counsel in respect of the applicable state securities laws may be a
memorandum of law rather than an opinion if such counsel is not licensed in
the applicable jurisdiction. Upon request, the Owner Trustee shall provide to
any Holder of a Trust Certificate and any prospective transferee designated by
any such Holder information regarding the Trust Certificates and the
Receivables and such other information which is in the possession of the Owner
Trustee or which can be obtained by the Owner Trustee without undue burden or
expense in order to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Trust Certificate without registration
thereof under the Securities Act pursuant to the registration exemption
provided by Rule 144A. Each Holder of a Trust Certificate desiring to effect
such a transfer shall, and does hereby agree to, indemnify the Trust, the
Owner Trustee, the Indenture Trustee, the Certificate Registrar and the
Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with federal and state securities laws.
All transfers of Trust Certificates shall be subject to the transfer
restrictions described in Section 11.13 of this Agreement. Furthermore, no
transfer of a Trust Certificate shall be made to any Person unless the Owner
Trustee or the Certificate Registrar and the Depositor have received a
certificate in the form of paragraphs 3 and 4 to the Investment Letter
attached hereto as Exhibit C from such Person to the effect that such Person
is not a Benefit Plan.
Upon surrender for registration of transfer of any Trust Certificate at
the office or agency maintained pursuant to Section 3.08, the Owner Trustee
shall execute, authenticate and deliver (or shall cause Xxxxx Fargo Bank
Minnesota, National Association as its authenticating agent to authenticate
and deliver), in the name of the designated transferee or transferees, one or
more new Trust Certificates in authorized denominations of a like aggregate
amount dated the date of authentication by the Owner Trustee or any
authenticating agent. At the option of a Certificateholder, Trust Certificates
may be exchanged for other Trust Certificates of authorized denominations of a
like aggregate amount upon surrender of the Trust Certificates to be exchanged
at the office or agency maintained pursuant to Section 3.08.
Every Trust Certificate presented or 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 related Certificateholder or such Certificateholder's attorney
duly authorized in writing. Each Trust Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Owner Trustee in accordance with its customary practice.
10
No service charge shall be made for any registration of transfer or
exchange of Trust 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 Trust Certificates.
The preceding provisions of this Section notwithstanding, the Owner
Trustee shall not make, and the Certificate Registrar shall not register
transfers or exchanges of, Trust Certificates for a period of fifteen (15)
days preceding the due date for any payment with respect to the Trust
Certificates.
Notwithstanding anything contained herein to the contrary, neither the
Certificate Registrar nor the Owner Trustee shall be responsible for
ascertaining whether any transfer complies with the registration provisions or
exemptions from the Securities Act, the Securities Act of 1934, as amended,
applicable state securities law or the Investment Company Act of 1940, as
amended; provided, however, that if a certificate or opinion is specifically
required to be delivered to the Owner Trustee or the Certificate Registrar by
a purchaser or transferee of a Trust Certificate, the Owner Trustee shall be
under a duty to examine the same to determine whether it conforms to the
requirements of this Trust Agreement and shall promptly notify the party
delivering the same if such certificate or opinion does not so conform.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates. If
(a) any mutilated Trust 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 Trust 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 written notice that such Trust
Certificate has been acquired by a protected purchaser, the Owner Trustee, on
behalf of the Trust, shall execute and the Owner Trustee or Xxxxx Fargo Bank
Minnesota, National Association, as the Owner Trustee's authenticating agent,
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Certificate, a new Trust
Certificate of like tenor and denomination. In connection with the issuance of
any new Trust 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 Trust Certificate issued pursuant to this Section shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Certificate shall
be found at any time.
Section 3.06. Persons Deemed Owners. Prior to due presentation of a Trust
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar or any Paying Agent may treat the Person in whose name any Trust
Certificate is registered in the Certificate Register as the owner of such
Trust Certificate for the purpose of receiving distributions pursuant to
Section 5.02 and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar or any Paying Agent shall be bound by any
notice to the contrary.
Section 3.07. Access to List of Certificateholders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to the Servicer, the
Paying Agent and the Depositor, within fifteen (15) days after receipt by the
Owner Trustee of a written request
11
therefor from the Servicer, the Paying Agent or the Depositor, a list, in such
form as the Servicer or the Depositor may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. The
Certificate Registrar shall also furnish to the Owner Trustee and the Paying
Agent a copy of such list at any time there is a change therein. If (i) three
(3) or more Certificateholders or (ii) one (1) or more Certificateholders
evidencing not less than 25% of the Percentage Interests in the Trust
Certificates apply in writing to the Owner Trustee, and such application
states that the applicants desire to communicate with other Certificateholders
with respect to their rights under this Agreement or under the Trust
Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Owner Trustee
shall, within five (5) Business Days after the receipt of such application,
afford such applicants access during normal business hours to the current list
of Certificateholders. Each Certificateholder, by receiving and holding a
Trust Certificate, shall be deemed to have agreed not to hold any of the
Depositor, the Certificate Registrar or the Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of the source
from which such information was derived. The Certificate Registrar shall upon
the request of the Owner Trustee provide such list, or access to such list, of
Certificateholders as contemplated by this Section 3.07.
Section 3.08. Maintenance of Office or Agency. The Owner Trustee shall
designate in the Borough of Manhattan, the City of New York, an office or
offices or agency or agencies where Trust 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 Trust Certificates and the Basic Documents
may be served. The Owner Trustee initially designates Xxxxx Fargo Bank
Minnesota, National Association as the office for such purposes. The Owner
Trustee shall give prompt written notice to the Depositor and the
Certificateholders of any change in the location of the Certificate Register
or any such office or agency.
Section 3.09. Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.02 and shall report the amounts of such distributions to
the Owner Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Certificate Distribution Account for the purpose of making the
distributions referred to above. The Owner Trustee may revoke such power and
remove the Paying Agent if the Owner Trustee determines in its sole discretion
that the Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect. The Paying Agent initially shall be Xxxxx
Fargo Bank Minnesota, National Association. As Paying Agent, Xxxxx Fargo Bank
Minnesota, National Association shall hold all sums, if any, held by it for
payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. Xxxxx Fargo Bank Minnesota, National Association shall be
permitted to resign as Paying Agent upon thirty (30) days' prior written
notice to the Owner Trustee. In the event that Xxxxx Fargo Bank Minnesota,
National Association shall no longer be the Paying Agent, the Owner Trustee
shall appoint a successor to act as Paying Agent (which shall be a bank or
trust company). The Owner Trustee shall cause such successor Paying Agent or
any additional Paying Agent appointed hereunder to execute and deliver to the
Owner Trustee an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Owner Trustee that, as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Certificateholders in trust for the benefit of
the Certificateholders
12
entitled thereto until such sums shall be paid to such Certificateholders. The
Paying Agent shall return all unclaimed funds to the Owner Trustee and upon
resignation or removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Owner Trustee. The provisions of Sections
7.01, 7.03, 7.04, 8.01 and 8.02 shall apply to Xxxxx Fargo Bank Minnesota,
National Association in its role of Paying Agent and Certificate Registrar,
for so long as Xxxxx Fargo Bank Minnesota, National Association shall act as
Paying Agent and Certificate Registrar, to the Owner Trustee, if the Owner
Trustee is appointed to act as Paying Agent, for so long as the Owner Trustee
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
Section 3.10. Definitive Trust Certificates. The Trust Certificates, upon
original issuance, will be issued in the form of a typewritten Trust
Certificate or Trust Certificates in the form attached hereto as Exhibit A to
be delivered to the related Certificateholders, by, or on behalf of, the
Trust. Such Trust Certificate or Trust Certificates shall be registered on the
Certificate Register in the name of the holder thereof. The Trust Certificates
shall be printed, lithographed, typewritten or engraved or may be produced in
any other manner as is reasonably acceptable to the Owner Trustee, as
evidenced by its execution thereof.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice with Respect to Certain Matters. With respect
to the following matters, the Owner Trustee shall not take action unless at
least thirty (30) days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders of record as of the preceding
Record Date in writing of the proposed action and such Certificateholders
specified in Section 4.04 hereof shall not have notified the Owner Trustee in
writing prior to the thirtieth (30th) day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Owner Trustee (except
claims or lawsuits brought in connection with the collection of the
Receivables) and the compromise of any action, claim or lawsuit brought by or
against the Owner Trustee (except with respect to the aforementioned claims or
lawsuits for collection of the Receivables);
(b) the election by the Owner Trustee to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Statutory Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture or any
other change to this Agreement or any Basic Document in circumstances where
the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture or any
other change to this Agreement or any Basic Document in circumstances where
the consent of any Noteholder is not required and such amendment would
materially adversely affect the interests of the Certificateholders;
13
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement of
a successor Certificate Registrar, or the consent to the assignment by the
Note Registrar, Paying Agent. Indenture Trustee or Certificate Registrar of
its obligations under the Indenture or this Agreement, as applicable;
(f) the consent to the calling or waiver of any default of any Basic
Document;
(g) the consent to the assignment by the Indenture Trustee or the
Servicer of their respective obligations under any Basic Document, unless
permitted in the Basic Documents;
(h) except as provided in Article IX hereof, dissolve, terminate or
liquidate the Trust in whole or in part;
(i) merge or consolidate the Trust with or into any other entity, or
convey or transfer all or substantially all of the Trust's assets to any other
entity;
(j) cause the Trust to incur, assume or guaranty any indebtedness other
than as set forth in this Agreement or the Basic Documents;
(k) do any act that conflicts with any other Basic Document;
(l) do any act that would make it impossible to carry on the ordinary
business of the Trust as described in Section 2.03 hereof;
(m) confess a judgment against the Trust;
(n) possess Trust assets, or assign the Trust's right to property, for
other than a Trust purpose;
(o) cause the Trust to lend any funds to any entity, unless permitted in
the Basic Documents; or
(p) change the Trust's purpose and powers from those set forth in this
Trust Agreement.
In addition, the Trust shall not commingle its assets with those of any
other entity. The Trust shall maintain its financial and accounting books and
records separate from those of any other entity. Except as expressly set forth
herein, the Trust shall not pay the indebtedness, operating expenses and
liabilities of any other entity. The Trust shall maintain appropriate minutes
or other records of all appropriate actions and shall maintain its office
separate from the offices of the Depositor and the Servicer.
The Owner Trustee shall not have the power, except upon the written
direction of the Certificateholders pursuant to Section 4.04, and to the
extent otherwise consistent with the Basic Documents and permitted by
applicable law, to (i) remove or replace the Servicer or the Indenture
Trustee, (ii) institute proceedings to have the Owner Trustee or the Trust
declared or
14
adjudicated bankrupt or insolvent, (iii) consent to the institution of
bankruptcy or insolvency proceedings against the Owner Trustee or the Trust,
(iv) file a petition or consent to a petition seeking reorganization or relief
on behalf of the Owner Trustee or the Trust under any applicable federal or
state law relating to bankruptcy, (v) consent to the appointment of a
conservator, receiver, liquidator, assignee, trustee, sequestrator (or any
similar official) of the Owner Trustee or the Trust or a substantial portion
of the property of the Owner Trustee or the Trust, (vi) make any assignment
for the benefit of the Owner Trustee's or the Trust's creditors, (vii) cause
the Owner Trustee or the Trust to admit in writing its inability to pay its
debts generally as they become due, or (viii) take any action, or cause the
Owner Trustee or the Trust to take any action, in furtherance of any of the
foregoing (any of the above, a "Bankruptcy Action"). So long as the Indenture
remains in effect and to the fullest extent permitted by applicable law, no
Certificateholder shall have the power to take, and shall not take, any
Bankruptcy Action with respect to the Owner Trustee or the Trust or direct the
Owner Trustee to take any Bankruptcy Action with respect to the Owner Trustee
or the Trust. Additionally, the Owner Trustee shall not have the power to
commence a Bankruptcy Action without the unanimous prior approval of all
Certificateholders and the delivery to the Owner Trustee by each such
Certificateholder of a certification certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.02. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the written
direction of the Certificateholders, to (a) remove the Servicer under the Sale
and Servicing Agreement pursuant to Article VIII thereof, (b) amend the Sale
and Servicing Agreement pursuant to Section 10.01(b) of such document, or (c)
except as expressly provided in the Basic Documents, 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.
Section 4.03. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or to 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 or any of
the Basic Documents or would be contrary to Section 2.03; nor shall the Owner
Trustee be obligated to follow any such direction, if given.
Section 4.04. Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Agreement may be
taken by the Holders of Trust Certificates evidencing not less than a majority
of the Percentage Interests in the Certificates. Except as expressly provided
herein, any written notice of the Certificateholders delivered pursuant to
this Agreement shall be effective if signed by Holders of Trust Certificates
evidencing not less than a majority of the Percentage Interests in the
Certificates at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Trust Account. The Paying Agent shall
establish and maintain on behalf of the Trust an Eligible Deposit Account (the
"Certificate Distribution
15
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders. The title of the
Certificate Distribution Account shall be "Xxxxxx Xxxxxxx Auto Loan Trust
2003-HB1: Certificate Distribution Account for the benefit of the
Certificateholders."
The Trust shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and control
of the Owner Trustee, on behalf of the Trust, for the benefit of the
Certificateholders. If, at any time, the Certificate Distribution Account
ceases to be an Eligible Deposit Account, the Owner Trustee (or the Depositor
on behalf of the Owner Trustee, if the Certificate Distribution Account is not
then held by the Owner Trustee or an affiliate thereof) shall within ten (10)
Business Days (or such longer period, not to exceed thirty (30) calendar days,
as to which each Rating Agency may consent) cause the Paying Agent to
establish a new Certificate Distribution Account as an Eligible Deposit
Account and shall transfer any cash and/or any investments from the account
that is no longer an Eligible Deposit Account to such new Certificate
Distribution Account.
Section 5.02. Application of Trust Funds.
(a) On each Distribution Date, the Paying Agent shall distribute to
Certificateholders amounts deposited in the Certificate Distribution Account
pursuant to Section 5.06 of the Sale and Servicing Agreement with respect to
such Distribution Date.
(b) On each Distribution Date, the Owner Trustee shall cause the Paying
Agent to send to each Certificateholder the statement or statements provided
to the Owner Trustee by the Indenture Trustee pursuant to Section 5.07 of the
Sale and Servicing Agreement with respect to such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to such Certificateholder in
accordance with this Section. The Owner Trustee and the Paying Agent are
hereby authorized and directed to retain from amounts otherwise distributable
to the Certificateholders sufficient funds for the payment of any tax that is
legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee or the Paying Agent from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed
with respect to a Certificateholder shall be treated as cash distributed to
such Certificateholder at the time it is withheld by the Owner Trustee on
behalf of the Trust and remitted to the appropriate taxing authority. If there
is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the
Owner Trustee or the Paying Agent may in its sole discretion withhold such
amounts in accordance with this paragraph.
(d) Any Holder of a Trust Certificate which is organized under the laws
of a jurisdiction outside the United States shall, on or prior to the date
such Holder becomes a Holder, so notify the Owner Trustee and the Paying Agent
and either (i) provide the Owner Trustee and
16
the Paying Agent with Internal Revenue Service Form X-0XXX, X-0XXX or other
similar forms, as appropriate, or (ii) notify the Owner Trustee and the Paying
Agent that it is not entitled to an exemption from United States withholding
tax or a reduction in the rate thereof on payments of interest. Any such
Holder agrees by its acceptance of a Trust Certificate, on an ongoing basis,
to provide like certification for each taxable year and to notify the Owner
Trustee and the Paying Agent should subsequent circumstances arise affecting
the information provided the Owner Trustee in clauses (a) and (b) above. The
Owner Trustee and the Paying Agent shall be fully protected in relying upon,
and each Holder by its acceptance of a Trust Certificate hereunder agrees to
indemnify and hold the Owner Trustee and the Paying Agent harmless against all
claims or liability of any kind arising in connection with or related to the
Owner Trustee's and the Paying Agent's reliance upon any documents, forms or
information provided by any Holder to the Owner Trustee.
Section 5.03. Method of Payment. Subject to Section 9.01(c),
distributions required to be made to Certificateholders on any Distribution
Date shall be made to each Certificateholder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the account
of such Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar and the Paying Agent appropriate written instructions at
least five (5) Business Days prior to such Distribution Date or, if not, by
check mailed to such Certificateholder at the address of such
Certificateholder appearing in the Certificate Register.
Section 5.04. No Segregation of Moneys; No Interest. Subject to Sections
5.01 and 5.02, moneys received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law or the Sale and
Servicing Agreement, and may be deposited under such general conditions as may
be prescribed by law, and the Owner Trustee shall not be liable for any
interest thereon.
Section 5.05. Accounting and Reports to Certificateholders, the Internal
Revenue Service and Others. The Owner Trustee shall (a) maintain (or cause to
be maintained) the books of the Trust on a calendar year basis and the accrual
method of accounting, (b) deliver (or cause to delivered) to each
Certificateholder each Servicer Report delivered to the Owner Trustee pursuant
to Section 4.10(b) of the Sale and Servicing Agreement, (c) deliver (or cause
to 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 the Trust is treated as a partnership for federal
income tax purposes) to enable each Certificateholder to prepare its federal
and state income tax returns, (d) prepare (or cause to be prepared), file (or
cause to be filed) such tax returns relating to the Trust (including a
partnership information return, IRS Form 1065 if the Trust is treated as a
partnership for federal income tax purposes) and make such elections as from
time to time may be required or appropriate under any applicable state or
federal statute or any rule or regulation thereunder so as to maintain the
Trust's characterization, (e) cause such tax returns to be signed in the
manner required by law and (f) collect or cause to be collected any
withholding tax as described in and in accordance with Section 5.02(c) with
respect to income or distributions to Certificateholders. 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, if
applicable.
17
Section 5.06. Signature on Returns; Tax Matters Partner.
(a) The Owner Trustee shall sign on behalf of the Trust the tax returns
of the Trust, if any, unless applicable law requires a Certificateholder to
sign such documents.
(b) In the event that the Trust is treated as a partnership for federal
income tax purposes, the Depositor shall be designated the initial "tax
matters partner" of the Trust pursuant to Section 6231(a)(7)(A) of the Code
and applicable Treasury Regulations.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party, in
each case, as evidenced conclusively by the Owner Trustee's execution thereof.
In addition to the foregoing, the Owner Trustee is authorized to take all
actions required of the Trust pursuant to the Basic Documents. The Owner
Trustee is further authorized from time to time to take such action as the
Depositor directs with respect to and in accordance with the Basic Documents
(except to the extent that this Agreement expressly requires the consent of
Certificateholders for such action, in which case the Owner Trustee shall not
take such action without such consent).
Section 6.02. General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant
to the terms of this Agreement and the Basic Documents to which the Trust is a
party and to administer the Trust in the interest of the Certificateholders,
subject to the Basic Documents and in accordance with the provisions of this
Agreement.
Section 6.03. Action upon Instruction.
(a) Subject to Article IV and in accordance with the terms of the Basic
Documents, the Certificateholders may, by written instruction, direct the
Owner Trustee in the management of the Trust. Such direction may be exercised
at any time by written instruction of the Certificateholders pursuant to
Article IV.
(b) The Owner Trustee shall not be required to take any action hereunder
or under any Basic 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 is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or
under any Basic Document, the Owner Trustee shall promptly give notice (in
such form as shall be appropriate under the circumstances) to the
Certificateholders of record as of the preceding Record Date requesting
instruction as to the course of action to be adopted, and to the extent the
Owner
18
Trustee acts in good faith in accordance with any written instruction of such
Certificateholders received, 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 (10) 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, 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 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 Certificateholders of
record as of the preceding Record Date requesting instruction and, to the
extent that the Owner Trustee acts in good faith in accordance with any such
instruction received or, if instructed not to act, in good faith refrains from
acting, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten (10) 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, 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.
Section 6.04. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the 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 or the Trust 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 6.03; and no
implied duties or obligations shall be read into this Agreement or any Basic
Document against the Owner Trustee. The Owner Trustee shall have no
responsibility, other than as set forth in Section 6.07, 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 Securities and Exchange
Commission filing for the Trust or to record this Agreement or any Basic
Document. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any
Liens on any part of the Trust Estate that result from actions by, or claims
against, the Owner Trustee in its individual capacity that are not related to
the ownership or the administration of the Trust Estate.
Section 6.05. No Action Except Under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the 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
19
Documents and (iii) in accordance with any document or instruction delivered
to the Owner Trustee pursuant to any provision of this Agreement.
Section 6.06. Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section
2.03 or (b) that, to the actual knowledge of the Owner Trustee would result in
the Trust's becoming taxable as a corporation for federal income tax purposes.
The Certificateholders shall not direct the Owner Trustee to take action that
would violate the provisions of this Section.
Section 6.07. Administrative Duties.
(a) The Owner Trustee shall prepare or shall cause the preparation by
other appropriate Persons (and such preparation shall not be the
responsibility of the Seller, the Depositor, the Indenture Trustee or the
Servicer) of all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of the Trust to prepare, file or deliver
pursuant to the Indenture with respect to the following matters under the
Indenture (parenthetical section references are to sections of the Indenture):
(i) (a) the appointment of a successor Note Registrar and (b) giving
the Indenture Trustee notice of any appointment of a new Note Registrar
and the location, or change in location, of the Note Registrar (Section
2.04);
(ii) the delivery to any Holder of a Class D Note and any
prospective purchaser designated by such Holder, upon request of such
Holder or such prospective purchaser, such information in the possession
of the Owner Trustee required by Rule 144A as will enable the resale of
such Class D Notes to be made pursuant to Rule 144A (Section 2.04);
(iii) the delivery for cancellation of any Note delivered to the
Issuer for cancellation, and the direction to destroy or return such Note
(Section 2.09);
(iv) the preparation of Definitive Notes in accordance with the
instructions of the Clearing Agency (Section 2.12);
(v) the designation of an office in the Borough of Manhattan, City
of New York, for registration of transfer or exchange of Notes (Section
3.02);
(vi) the preparation of an Issuer Order directing the Paying Agent
to deposit with the Indenture Trustee all sums held in trust by such
Paying Agent (Section 3.03 and 4.03);
(vii) the preparation of an Issuer Order directing the Indenture
Trustee to provide notification of any unclaimed monies and repayments
(Section 3.03);
(viii) upon request, assist in the obtaining and preservation of the
Issuer's qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes,
20
the Collateral and each other instrument and agreement included in the
Trust Estate (Section 3.04);
(ix) the preparation of all supplements and amendments to the
Indenture, instruments of further assurance and other instruments and the
taking of such other action as is necessary or advisable to protect the
Trust Estate, including the preparation and filing of any financing
statements and continuation statements (Section 3.05);
(x) the delivery of the Opinion of Counsel on the Closing Date and
the annual delivery of Opinions of Counsel as to the Trust Estate, and
the annual delivery of the Officer's Certificate and certain other
statements as to compliance with the Indenture (Sections 3.06 and 3.09);
(xi) the notification of a Event of Servicing Termination or an
Additional Event of Servicing Termination under the Sale and Servicing
Agreement and, if such Event of Servicing Termination arises from the
failure of the Servicer to perform any of its duties under the Sale and
Servicing Agreement with respect to the Receivables, the taking of all
reasonable steps available to remedy such failure (Section 3.07(d));
(xii) the notification to the Indenture Trustee of (a) the
termination of the Servicer and (b) the appointment of a Successor
Servicer (Section 3.07(e));
(xiii) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the
Indenture (Section 3.10(b));
(xiv) the duty to take any action as instructed by the Controlling
Party to cause the Servicer to comply with Sections 4.10, 4.11, 4.12 and
Article VII of the Sale and Servicing Agreement (Section 3.14);
(xv) the delivery of written notice to the Indenture Trustee and the
Rating Agencies of each Event of Default under the Indenture and each
default by the Servicer under the Sale and Servicing Agreement (Section
3.18);
(xvi) the execution of any further instruments and the performance
of any acts reasonably necessary to carry out more effectively the
purpose of the Indenture (Section 3.19);
(xvii) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of an Opinion of Counsel and the
Independent Certificate relating thereto (Section 4.01);
(xviii) the preparation, obtaining or filing of instruments,
opinions, certificates and other documents required for the release of
Collateral (Section 4.04);
21
(xix) upon its actual knowledge of such, the delivery to the
Indenture Trustee of written notice in the form of an Officer's
Certificate of any event that with the giving of notice and the lapse of
time would become an Event of Default under clause (iii) of Section 5.01
of the Indenture (Section 5.01);
(xx) the performance of any lawful action as the Controlling Party
may request to compel or secure the performance and observance by The
Huntington National Bank, the Seller or the Servicer, as applicable, of
each of their obligations to the Issuer in the Basic Documents (Section
5.16);
(xxi) upon the request of the Indenture Trustee, provide the
Indenture Trustee with the information necessary to deliver to each
Noteholder such information as may be reasonably requested to enable such
Holder to prepare its United States federal and state and local income or
franchise tax returns (Section 6.06);
(xxii) the preparation and delivery of notice to Noteholders of the
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.08);
(xxiii) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee
and any written instructions necessary in connection with the resignation
or removal of any co-trustee or separate trustee (Sections 6.08 and
6.10);
(xxiv) upon its actual knowledge of such, the notification to the
Indenture Trustee if and when the Notes are listed on any stock exchange
(Section 7.04);
(xxv) the preparation of an Issuer Request and Officer's Certificate
and the obtaining of an Opinion of Counsel and Independent Certificates,
if necessary, for the release of the Trust Estate (Section 8.04 and
8.05);
(xxvi) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with respect to
such supplemental indentures (Sections 9.01, 9.02 and 9.03);
(xxvii) the delivery of new Notes conforming to any supplemental
indenture (Section 9.05);
(xxviii) the duty to furnish to the Rating Agencies and the
Indenture Trustee notice of redemption of Notes, if the Servicer has not
previously done so (Section 10.01);
(xxix) the duty to notify Noteholders of redemption of the Notes or
to cause the Indenture Trustee to provide such notification (Section
10.02);
22
(xxx) the preparation and delivery of all Officer's Certificates,
Opinions of Counsel and Independent Certificates with respect to any
requests by the Issuer to the Indenture Trustee to take any action under
the Indenture (Section 11.01(a));
(xxxi) the preparation and delivery of all Officer's Certificates
and the obtaining of Independent Certificates, if necessary, for the
release of property from the lien of the Indenture (Section 11.01(b));
(xxxii) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements or requests by the Noteholders with
respect to alternate payment and notice provisions (Section 11.05); and
(xxxiii) the recording of the Indenture, if applicable (Section
11.13).
(b) The Owner Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
among the Depositor and the Owner Trustee, and the Owner Trustee shall be
reimbursed for its other reasonable expenses hereunder in the priority set
forth in Section 5.06(b)(ii) and (xi) in the Sale and Servicing Agreement. In
performing its duties under Section 5.05 or 6.07, the Owner Trustee shall be
entitled to the indemnification provided by the Issuer under Section 8.02 of
this Agreement, in the priority set forth in Section 5.06(b)(ii) and (xi) of
the Sale and Servicing Agreement.
(c) It is understood and agreed that the Owner Trustee shall be entitled
to engage outside counsel, independent accountants and other experts to assist
the Owner Trustee in connection with the performance of its duties set forth
in Sections 5.05 and 6.07, including the preparation of all tax reports and
returns, securities law filings, Opinions of Counsel and Independent
Certificates and the Owner Trustee shall be reimbursed for the expenses of
such experts in accordance with the priority set forth in Section 5.06(b)(ii)
and (xi) of the Sale and Servicing Agreement. The Owner Trustee shall not be
obligated to engage any expert or perform any duty as required under Sections
5.05 and 6.07 for which reimbursement would exceed $1,000 until such amount
has been paid to the Owner Trustee, if payment of such reimbursable amount is
required of the Owner Trustee prior to the next Distribution Date.
(d) The Depositor and the Servicer shall furnish to the Owner Trustee
from time to time such additional information regarding the Trust or the Basic
Documents as the Owner Trustee shall reasonably request. The Indenture Trustee
shall furnish to the Owner Trustee annually (or upon any change thereto) a
copy of the Note Register. The Servicer shall furnish to the Owner Trustee
copies of all documents and reports required to be provided by the Servicer
pursuant to Sections 4.10, 4.11, 4.12 and 4.14 of the Sale and Servicing
Agreement.
(e) The Owner Trustee shall not be responsible for taking any action with
respect to this Section 6.07 unless a responsible officer in the Corporate
Trust Administration Department of the Owner Trustee has actual knowledge or
has received written notice of the need to take such action.
23
(f) The rights and protections afforded to the Owner Trustee pursuant to
Article VII of this Agreement shall also be afforded to the Owner Trustee with
respect to the performance of its administrative duties under this Section
6.07.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01. 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 also agrees to disburse all moneys actually received by it
constituting part of the Trust Estate upon the terms of the Basic Documents
and this Agreement. The Owner Trustee, in its individual capacity, shall not
be answerable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct or gross negligence
or (ii) in the case of the inaccuracy of any representation or warranty
contained in Section 7.03 expressly made by the Owner Trustee in its
individual capacity. 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 Trust 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
Depositor or any Certificateholder;
(c) no provision of this Agreement or any Basic 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 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,
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 Trust Estate, or for or in respect of the validity or
sufficiency of the Basic Documents, other than the certificate of
authentication on the Trust Certificates, and the Owner Trustee, in its
individual capacity, shall in no event assume or incur any liability, duty or
obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein or expressly agreed to in the other Basic
Documents;
(f) the Owner Trustee shall not be responsible for monitoring the
performance of, and shall not be liable for the default or misconduct of the
Depositor, the Servicer, the Indenture Trustee or any other Person under any
of the Basic Documents or otherwise, and the
24
Owner Trustee shall have no obligation or liability to perform the obligations
of the Trust under this Agreement or the Basic Documents that are required to
be performed by the Indenture Trustee under the Indenture or the Depositor or
the Servicer under the Sale and Servicing Agreement; 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, at the request, order or direction of any of
the Certificateholders, unless such Certificateholders have offered to the
Owner Trustee security, in its individual capacity, or indemnity satisfactory
to it against the costs, expenses and liabilities that may be incurred by the
Owner Trustee, in its individual capacity, 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 gross negligence or
willful misconduct in the performance of any such act.
Section 7.02. 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.
Section 7.03. Representations and Warranties. The Owner Trustee, in its
individual capacity, hereby represents and warrants to the Depositor, for the
benefit of the Certificateholders, 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.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement and the Basic Documents, and
this Agreement and the Basic Documents will be executed and delivered by one
of its officers who is duly authorized to execute and deliver this Agreement
and the Basic Documents on its behalf.
(c) Neither the execution or 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 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 bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound.
(d) It is a corporation satisfying the provisions of Section 3807(a) of
the Statutory Trust Statute; authorized to exercise corporate trust powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state
25
authorities; and having (or having a parent that has) time deposits that are
rated at least "A-1" by Standard & Poor's and "P-1" by Moody's or who is
otherwise acceptable to each Rating Agency.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee (either in its individual capacity or as 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 determination of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers 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 reasonably and in good faith by it in accordance with the written
opinion or advice of any such counsel, accountants or other such Persons and
not contrary to this Agreement or any Basic Document.
Section 7.05. Not Acting in Individual Capacity. Except as expressly
provided in this Article VII, in accepting the trusts hereby created,
Wilmington Trust Company 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 shall look only to the Trust Estate for payment or satisfaction
thereof.
Section 7.06. Owner Trustee Not Liable for Trust Certificates or for
Receivables. The recitals contained herein and in the Trust Certificates
(other than the signature and countersignature of the Owner Trustee on the
Trust Certificates) shall be taken as the statements of the Depositor, and the
Owner Trustee assumes no responsibility for the correctness thereof. Except as
set forth in Section 7.03, the Owner Trustee makes no representations as to
the validity or sufficiency of this Agreement, of any Basic Document or of the
Trust Certificates (other than the signature and countersignature of the Owner
Trustee on the Trust 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
Trust Estate or its ability to generate the payments to be
26
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 or the Servicer 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
Indenture Trustee or the Servicer or any subservicer taken in the name of the
Owner Trustee.
Section 7.07. Owner Trustee May Own Trust Certificates and Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Trust Certificates or Notes and may deal with the Depositor, the
Indenture Trustee and the Servicer in banking transactions with the same
rights as it would have if it were not Owner Trustee.
Section 7.08. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither Wilmington Trust Company
nor 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 (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
required by, 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 any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State of
Delaware becoming payable by Wilmington Trust Company or the Owner Trustee; or
(iii) subject Wilmington Trust Company or the Owner Trustee 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 Wilmington Trust Company or the Owner Trustee, as the case may be,
contemplated hereby. The Owner Trustee shall be entitled to obtain advice of
counsel (which advice shall be an expense of the Trust under Section 8.01 of
this Agreement) to determine whether any action required to be taken pursuant
to the Agreement results in the consequences described in clauses (i), (ii)
and (iii) of the preceding sentence. In the event that said counsel advises
the Owner Trustee that such action will result in such consequences, the Owner
Trustee will appoint an additional trustee pursuant to Section 10.05 hereof to
proceed with such action.
Section 7.09. Paying Agent, Certificate Registrar and Authenticating
Agent. The rights and protections afforded to the Owner Trustee pursuant to
this Article VII and Sections 8.02, 10.02, and 10.03 shall also be afforded to
the Paying Agent, authenticating agent and Certificate Registrar.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. 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 the Depositor and the
Owner Trustee, and the Owner Trustee
27
shall be reimbursed 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, in the priority set forth in Section 5.06(b) in the Sale and
Servicing Agreement.
Section 8.02. Indemnification. The Trust shall indemnify the Owner
Trustee and its 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 or any Indemnified Party in any way relating to or arising out of this
Agreement, the Basic Documents, the Trust Estate, the administration of the
Trust Estate or the action or inaction of the Owner Trustee hereunder, except
only that the Trust shall not be liable for or required to indemnify an
Indemnified Party from or against Expenses arising or resulting from (i) the
willful misconduct, gross negligence or bad faith of the Owner Trustee or (ii)
the inaccuracy of a representation or warranty made by the Owner Trustee in
Section 7.03. The indemnities contained in this Section shall survive the
resignation or termination of the Owner Trustee or the termination of this
Agreement. In the event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section, the Indemnified Party's choice of
legal counsel shall be subject to the approval of the Trust, which approval
shall not be unreasonably withheld.
Section 8.03. Payments to the Owner Trustee. Any amounts paid pursuant to
this Article VIII shall be payable solely in the priority set forth in
Sections 5.06(b)(ii) and 5.06(b)(xi) of the Sale and Servicing Agreement and
shall be deemed not to be a part of the Trust Estate immediately after such
payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) shall terminate and the
Trust shall terminate and dissolve and be of no further force or effect upon
the final distribution by the Owner Trustee of all moneys or other property or
proceeds of the Trust Estate in accordance with the terms of the Indenture,
Article V of the Sale and Servicing Agreement and the Statutory Trust Statute.
Any money or other property held as part of the Owner Trust Estate following
such distribution shall be distributed to the Depositor. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall
not (i) operate to terminate this Agreement or the Trust, (ii) 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 Trust Estate or (iii) otherwise affect the
rights, obligations and liabilities of the parties hereto.
28
(b) This Agreement and the Trust are irrevocable. Except as provided in
Section 9.01(a) and in this Section 9.01(b), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust or this
Agreement.
(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which Certificateholders shall surrender their Trust Certificates to
the Paying Agent for payment of the final distribution and cancellation, shall
be given by the Owner Trustee by letter to Certificateholders mailed within
five (5) Business Days of receipt of notice of such termination from the
Servicer given pursuant to Section 9.01 of the Sale and Servicing Agreement,
stating (i) the Distribution Date upon or with respect to which final payment
of the Trust Certificates shall be made upon presentation and surrender of the
Trust Certificates at the office of the Paying Agent therein designated, (ii)
the amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made
only upon presentation and surrender of the Trust Certificates at the office
of the Paying Agent therein specified. The Owner Trustee shall give such
notice to the Certificate Registrar (if other than the Owner Trustee) and the
Paying Agent at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Trust Certificates, the Paying Agent shall
cause to be distributed to Certificateholders amounts distributable on such
Distribution Date pursuant to Section 5.02.
In the event that all of the Certificateholders shall not surrender their
Trust Certificates for cancellation within six (6) months after the date
specified in the above mentioned written notice, the Owner Trustee shall give
a second written notice to the remaining Certificateholders to surrender their
Trust Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the Trust
Certificates shall not have been surrendered for cancellation, the Owner
Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Trust Certificates, and the cost thereof shall be paid out
of the funds and other assets that shall remain subject to this Agreement. Any
funds remaining in the Trust after exhaustion of such remedies shall be
distributed by the Owner Trustee to the Depositor, subject to applicable
escheat laws.
(d) Upon the winding up of the Trust in accordance with the Statutory
Trust Statute (including, without limitation, the reasonable provision for
payment of all obligations of the Trust in accordance with Section 3808(e) of
the Statutory Trust Statute), 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
Statutory Trust Statute and thereupon the Owner Trust and this Agreement
(other than Article VIII) shall terminate.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of
Section 3807(a) of the Statutory Trust Statute; authorized to exercise
corporate trust powers; having a combined capital and
29
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authorities; and having (or having a parent that has) time
deposits that are rated at least "P-1" by Moody's and at least "A-1" by
Standard & Poor's, or which is otherwise acceptable to each Rating Agency. 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 10.02.
Section 10.02. Resignation or Removal of Owner Trustee. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Depositor, the Indenture Trustee and the
Rating Agencies. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor Owner Trustee 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. If no successor
Owner Trustee shall have been so appointed and have accepted appointment
within thirty (30) days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for
the appointment of a successor Owner Trustee, provided, however, that such
right to appoint or to petition for the appointment of any such successor
shall in no event relieve the resigning Owner Trustee from any obligations
otherwise imposed on it under the Basic Documents until such successor has in
fact assumed such appointment.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.01 and shall fail to resign 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 by written instrument, in duplicate, one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed and one copy to
the successor Owner Trustee, and shall pay 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 10.03 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 Rating Agency.
Section 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.01 or 10.02 shall execute, acknowledge and
deliver to the Depositor, the Indenture Trustee 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
30
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 as a successor Owner Trustee pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Depositor shall mail notice thereof to all
Certificateholders, the Servicer, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Depositor shall fail to mail such notice within
ten (10) days after acceptance of such appointment by the successor Owner
Trustee, the successor Owner Trustee shall cause such notice to be mailed at
the expense of the Trust.
Any successor Owner Trustee appointed pursuant to this Section 10.03
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.
Section 10.04. Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, 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, that such corporation shall be eligible pursuant to Section 10.01;
and provided further, that the Owner Trustee shall mail notice of such merger
or consolidation to each Rating Agency; and provided, further, that such
successor Owner Trustee shall file an amendment to the Certificate of Trust as
described in Section 10.03.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Estate or any Financed Vehicle may at the time be located,
the Owner Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Owner Trustee to
act as co-trustee, jointly with the Owner Trustee, or as separate trustee or
separate trustees, of all or any part of the Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust Estate or any part thereof
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Owner Trustee may consider necessary or
desirable. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility
31
as a successor Owner Trustee pursuant to Section 10.01 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant
to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) 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 Estate 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;
(b) no trustee under this Agreement shall be personally liable by reason
of any act or omission of any other trustee under this Agreement; and
(c) the Owner Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as 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.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments. This Agreement may be amended
by the Depositor and the Owner Trustee, with prior written notice to each
Rating Agency, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any
32
provisions to or changing in any manner or eliminating any of the provisions
in this Agreement or of modifying in any manner the rights of the Noteholders
or the Certificateholders; provided, however, that such action shall not, as
evidenced by the satisfaction of the Rating Agency Condition with respect to
such amendment, adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Depositor and
the Owner Trustee, with prior written notice to each Rating Agency, with the
consent of the Holders (as defined in the Indenture) of Notes evidencing not
less than a majority of the Outstanding Amount of the Notes and the consent of
the Holders of Certificates evidencing not less than a majority of the
Percentage Interests in the Certificates, 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 Noteholders
or the Certificateholders; provided, however, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall
be required to be made for the benefit of the Noteholders or the
Certificateholders or (b) reduce the aforesaid percentage of the Outstanding
Amount of the Notes and the aforesaid Percentage Interests in the Certificates
required to consent to any such amendment, without the consent of the Holders
of all then-outstanding Notes and Certificates.
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 Indenture Trustee and each Rating
Agency.
It shall not be necessary for the consent of Certificateholders or
Noteholders 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 or Noteholders shall be subject to
such reasonable requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent
(if any) to such amendment specified in this Agreement have been met. The
Owner Trustee may, but shall not be obligated to, enter into any such
amendment that affects the Owner Trustee's own rights, duties or immunities
under this Agreement or otherwise.
Section 11.02. No Legal Title to Trust Estate in Certificateholders.
Neither the Depositor nor the Certificateholders shall have legal title to any
part of the 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
33
undivided ownership interest in the 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 Trust
Estate.
Section 11.03. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Certificateholders, the Paying Agent, the Certificate Registrar and, to the
extent expressly provided herein, the Indenture 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 Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section 11.04. Notices.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon receipt
by the intended recipient or three (3) Business Days after mailing if mailed
by first-class mail, postage prepaid (except that notice to the Owner Trustee
shall be deemed given only upon actual receipt by the Owner Trustee), if to
the Owner Trustee, addressed to the Corporate Trust Office; if to the
Depositor, addressed to Xxxxxx Xxxxxxx ABS Capital II Inc., addressed to 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax no.: (000) 000-0000), Attention: Xxxx
Xxxxxx, with a copy to Xxxxxxxx Xxxxx at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (fax no.: (000) 000-0000); if to Xxxxx Fargo Bank Minnesota, National
Association, addressed to Xxxxx Fargo Bank Minnesota, National Association,
Sixth and Marquette Avenue, MAC N9311-161, Xxxxxxxxxxx, XX 00000 (fax no.:
(000) 000-0000), Attention: CTS/Asset Backed Securities, Xxxxxx Xxxxxxx Auto
Loan Trust 2003-HB1; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party. A copy of
any such notice shall also be mailed to the Servicer, addressed to The
Huntington National Bank, 00 Xxxxx Xxxx Xxxxxx - XX0000 Xxxxxxxx, XX 00000,
Attention: Xxxxxxx X. Xxxxxx.
(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
Certificateholder 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 such Certificateholder receives such
notice.
Section 11.05. 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.
Section 11.06. 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.
34
Section 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the Depositor and its permitted assignees, the Owner Trustee and its
successors and each Certificateholder and its successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent,
waiver or other instrument or action by a Certificateholder shall bind the
successors and assigns of such Certificateholder.
Section 11.08. 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 Trust Certificates, the Notes, this Agreement or
any of the other Basic Documents.
Section 11.09. No Petition. The Owner Trustee, by entering into this
Agreement, each Certificateholder, by accepting a Trust Certificate, and the
Indenture Trustee and each Noteholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Depositor or the Trust or join in any institution against the
Depositor or the Trust of, any bankruptcy proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Trust Certificates, the Notes, this Agreement or any of the
Basic Documents.
Section 11.10. No Recourse. Each Certificateholder by accepting a Trust
Certificate acknowledges that such Trust Certificate represents a beneficial
interest in the Trust only and does not represent an interest in or an
obligation of the Depositor, the Servicer, the Owner Trustee, the Indenture
Trustee or any Affiliate thereof and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated
in this Agreement, the Trust Certificates or the Basic Documents.
Section 11.11. 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.
Section 11.12. 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.
Section 11.13. Trust Certificate Transfer Restrictions. The Trust
Certificates may not be acquired by or for the account of (i) an employee
benefit plan (as defined in Section 3(3) of ERISA) that is subject to the
provisions of Title I of ERISA or Similar Law, (ii) a plan described in
Section 4975(e)(1) of the Code that is subject to Section 4975 of the Code or
Similar Law or (iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (each, a "Benefit Plan"). By
accepting and holding a Trust Certificate, the Holder thereof shall be deemed
to have represented and warranted that it is not a Benefit Plan.
35
Section 11.14. Xxxxxxxx-Xxxxx. Notwithstanding anything contained herein
or in any other Basic Document to the contrary, the Owner Trustee shall not be
required to execute, deliver or certify on behalf of the Trust or any other
Person any filings, certificates, affidavits or other instruments (including,
without limitation, any Xxxxxxxx-Xxxxx Certification) required under the
Xxxxxxxx-Xxxxx Act of 2002.
Section 11.15. Acceptance of Terms of Agreement. The receipt and
acceptance of a Trust Certificate by a Certificateholder, without any
signature or further manifestation of assent, shall constitute the
unconditional acceptance by the Certificateholder of all the terms and
provisions of this Agreement, and shall constitute the agreement of the
Certificateholder that the terms and provisions of this Agreement shall be
binding, operative and effective as between the Owner Trustee and the
Certificateholder.
36
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as
of the day and year first above written.
XXXXXX XXXXXXX ABS CAPITAL II INC.,
as Depositor
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Vice President
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Financial Services Officer
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, solely
for the purposes of accepting
the appointment to act as
Certificate Registrar pursuant
to Section 3.04, (ii) the
appointment to act as Paying
Agent pursuant to Section 3.09,
and (iii) the designation of its
office pursuant to Section 3.08
By: /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
37
EXHIBIT A
FORM OF TRUST CERTIFICATE
THIS TRUST CERTIFICATE IS SUBORDINATE TO THE NOTES, AS SET FORTH IN THE
SALE AND SERVICING AGREEMENT.
THIS TRUST CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE APPLICABLE SECURITIES LAWS OF ANY
STATE. ACCORDINGLY, TRANSFER OF THIS TRUST CERTIFICATE IS SUBJECT TO CERTAIN
RESTRICTIONS SET FORTH IN SECTION 2.04 OF THE INDENTURE AND SECTION 3.04 OF
THE TRUST AGREEMENT. BY ITS ACCEPTANCE OF THIS TRUST CERTIFICATE, THE HOLDER
OF THIS TRUST CERTIFICATE IS DEEMED TO REPRESENT TO THE DEPOSITOR THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (A "QIB"), AS SUCH TERM IS DEFINED IN RULE
144A UNDER THE SECURITIES ACT ("RULE 144A") AND IS ACQUIRING THIS TRUST
CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A
FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS)."
"NO SALE, PLEDGE OR OTHER TRANSFER OF A TRUST CERTIFICATE SHALL BE MADE
UNLESS SUCH SALE, PLEDGE OR OTHER TRANSFER IS (I)(A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT, (B) FOR SO LONG AS THE TRUST
CERTIFICATES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT
TO A PERSON THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR
(C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE 1933 ACT, AND (II) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION. EACH
TRANSFEREE OF A BENEFICIAL INTEREST IN THIS TRUST CERTIFICATE SHALL BE DEEMED
TO MAKE THE FOREGOING REPRESENTATIONS. THE DEPOSITOR MAY REQUIRE AN OPINION OF
COUNSEL TO BE DELIVERED TO IT IN CONNECTION WITH ANY TRANSFER OF THE TRUST
CERTIFICATES PURSUANT TO CLAUSES (A) OR (C) ABOVE."
BY ITS ACCEPTANCE OF THIS TRUST CERTIFICATE, THE HOLDER AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT AND IS
NOT ACTING ON BEHALF OF OR INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT
PLAN (AS DEFINED IN SECTION 3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA
OR SIMILAR LAW, (B) PLAN (AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT
IS SUBJECT TO SECTION 4975 OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS OR XXXXX PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY,
INCLUDING,
A-1
WITHOUT LIMITATION, AS APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT (AS
DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60).
THIS TRUST CERTIFICATE IS NOT GUARANTEED OR INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY.
A-2
NUMBER R-___ PERCENTAGE INTEREST: [ ]%
XXXXXX XXXXXXX AUTO LOAN TRUST 2003-HB1 CERTIFICATE evidencing a
fractional undivided beneficial interest in the Trust, as defined below, the
property of which consists of: (1) all interest, principal, and any other
amounts received on or with respect to each of the Receivables after the
Cut-Off Date; (2) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of the Depositor
in such Financed Vehicles; (3) all other security interests or other property
interests created by or constituting each Receivable; (4) all of the
Depositor's rights with respect to each Receivable and the documentation
relating to the Receivables, including, without limitation, all rights under
the VSI Policy with respect to such Receivable and the contents of each
Receivable File, including, without limitation, all of the Depositor's
enforcement and other rights under the UCC and other Applicable Law; (5)
rebates of premiums on insurance policies and all other items financed as part
of the Receivables in effect as of the Cut-Off Date, including but not limited
to, service warranties; (6) all Servicing Rights with respect to, and all
proceeds of and rights to enforce, any of the foregoing, including, without
limitation, any Insurance Proceeds and Liquidation Proceeds; (7) all of the
Depositor's rights (but not its obligations) under the Assignment, Assumption
and Recognition Agreement; (8) all funds on deposit from time to time in the
Trust Accounts and the Certificate Distribution Account and in all investments
therein and proceeds thereof (including all Investment Earnings thereon); (9)
all accounts, money, chattel paper, securities, instruments, documents,
deposit accounts, certificates of deposit, letters of credit, advices of
credit, banker's acceptances, uncertificated securities, general intangibles,
contract rights, goods and other property consisting of, arising from or
relating to any and all of the foregoing; and (10) the proceeds of any and all
of the foregoing.
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR AN OBLIGATION
OF XXXXXX XXXXXXX ASSET FUNDING, INC., XXXXXX XXXXXXX ABS CAPITAL II INC. OR
ANY OF THEIR RESPECTIVE AFFILIATES.
THIS CERTIFIES THAT ________________ is the registered owner of a ____%
PERCENT nonassessable, fully paid, undivided percentage interest in XXXXXX
XXXXXXX AUTO LOAN TRUST 2003-HB1, a Delaware statutory trust (the "Trust"),
formed by XXXXXX XXXXXXX ABS CAPITAL II INC., a Delaware corporation (the
"Depositor").
The Trust was created pursuant to a Trust Agreement amended and restated
as of June 1, 2003 (as amended, supplemented or otherwise modified from time
to time, the "Trust Agreement"), between the Depositor and Wilmington Trust
Company, as owner trustee (the "Owner Trustee"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned
to them in the Trust Agreement or the Sale and Servicing Agreement dated as of
June 1, 2003 (as amended, supplemented or otherwise modified from time to
time, the "Sale and Servicing Agreement"), among the Trust, the Depositor,
Xxxxxx Xxxxxxx Asset Funding, Inc., as Seller, The Huntington National Bank,
as Servicer and Xxxxx Fargo Bank Minnesota, National Association, as Indenture
Trustee.
This Trust Certificate is one of the duly authorized Trust Certificates
designated as "Asset Backed Certificates" (herein called the "Trust
Certificates"). Also issued under an
A-3
Indenture dated as of June 1, 2003 (as amended, supplemented or otherwise
modified from time to time, the "Indenture"), between the Trust and Xxxxx
Fargo Bank Minnesota, National Association, as indenture trustee, are the
classes of Notes designated as "1.46% Asset Backed Notes, Class A-1," "2.17%
Asset Backed Notes, Class A-2," (collectively, the "Class A Notes"), "2.22%
Asset Backed Notes, Class B" (the "Class B Notes"), "3.48% Asset Backed Notes,
Class C" (the "Class C Notes") and "5.50% Asset Backed Notes, Class D" (the
"Class D Notes" and together with the Class A Notes, the Class B Notes and the
Class C Notes, the "Notes"). This Trust Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement, to
which Trust Agreement the Holder of this Trust Certificate by virtue of its
acceptance hereof assents and by which such Certificateholder is bound. The
property of the Trust consists of the Conveyed Assets. The rights of the
Certificateholders are subordinate to the rights of the Noteholders, as set
forth in the Sale and Servicing Agreement.
Under the Trust Agreement, there will be distributed on the 15th day of
each month or, if such 15th day is not a Business Day, the next Business Day
(each, a "Distribution Date"), commencing on August 15, 2003, to the Person in
whose name this Trust Certificate is registered on the last day of the
immediately preceding month (the "Record Date"), such Certificateholder's
fractional undivided interest in the amount to be distributed to
Certificateholders on such Distribution Date.
The Holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinate to the rights of the Noteholders as described in the Sale and
Servicing Agreement and the Indenture.
It is the intent of the Depositor and the Certificateholders that, solely
for income and franchise tax purposes : (1) if there is one beneficial owner
of the Trust Certificates, the Trust shall be treated as either a grantor
trust or as a disregarded entity, and (2) if there is more than one beneficial
owner of the Trust Certificates, the Trust shall be treated as a grantor trust
(or to the extent required, as a partnership) for income and franchise tax
purposes. A Certificateholder, by its acceptance of a Trust Certificate,
agrees to treat, and to take no action inconsistent with such treatment of the
Trust.
A Certificateholder, by its acceptance of a Trust Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor, the Owner Trustee or the Trust, or join in any institution
against the Depositor, the Owner Trustee or the Trust 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 obligations relating to the Trust Certificates, the
Notes, the Trust Agreement or any of the Basic Documents.
Distributions on this Trust Certificate will be made as provided in the
Trust Agreement by the Owner Trustee or the Paying Agent by wire transfer or
check mailed to the Certificateholder of record in the Certificate Register
without the presentation or surrender of this Trust Certificate or the making
of any notation hereon.
Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Trust Certificate will be made after
due notice by the Owner
A-4
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Trust Certificate at the office or agency designated for
that purpose by the Owner Trustee in the Borough of Manhattan, The City of New
York.
Reference is hereby made to the further provisions of this Trust
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 or the authenticating agent, by
manual signature, this Trust Certificate shall not entitle the Holder hereof
to any benefit under the Trust Agreement or the Sale and Servicing Agreement
or be valid for any purpose.
THIS TRUST 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.
IN WITNESS WHEREOF, the Owner Trustee has caused this Trust Certificate
to be duly executed.
WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Owner Trustee of XXXXXX XXXXXXX
AUTO LOAN TRUST 2003-HB1
Dated: [ ], 2003 By:
----------------------------------
Authorized Signatory
A-5
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY, WILMINGTON TRUST COMPANY,
or as Owner Trustee as Owner Trustee
By: [INDENTURE TRUSTEE],
as Authenticating Agent
By: By:
-------------------------- --------------------------
Authorizing Agent Authorizing Agent
A-6
[REVERSE OF TRUST CERTIFICATE]
The Trust Certificates do not represent an obligation of, or an interest
in, the Depositor, the Servicer, the Owner Trustee in its individual capacity
or any affiliates of any of them and no recourse may be had against such
parties or their assets, except as expressly set forth or contemplated herein
or in the Trust Agreement or the Basic Documents. In addition, this Trust
Certificate is not guaranteed by any governmental agency or instrumentality
and is limited in right of payment to certain collections and recoveries with
respect to the Receivables (and certain other amounts), all as more
specifically set forth herein and in the Sale and Servicing Agreement. A copy
of each of the Sale and Servicing Agreement and the Trust Agreement may be
examined by any Certificateholder upon written request during normal business
hours at the principal office of the Depositor and at such other places, if
any, designated by the Depositor.
The Trust Agreement permits, with certain exceptions provided therein,
the amendment thereof and the modification of the rights and obligations of
the Depositor and the rights of the Certificateholders under the Trust
Agreement at any time by the Depositor and the Owner Trustee, with prior
written notice to each Rating Agency, with the consent of the Holders (as
defined in the Indenture) of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes and the consent of the Holders of Certificates
evidencing not less than a majority of the Percentage Interests in the
Certificates, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Trust Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholders. Any such consent by the Holder of this Trust Certificate
shall be conclusive and binding on such Holder and on all future Holders of
this Trust Certificate and of any Trust Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent is made upon this Trust Certificate. The Trust Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Trust Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Trust Certificate is registerable in
the Certificate Register upon surrender of this Trust Certificate for
registration of transfer at the offices or agencies of the Certificate
Registrar designated by the Owner Trustee in the Borough of Manhattan, The
City of New York, 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 Trust Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is Xxxxx Fargo Bank Minnesota, National Association.
Except as provided in the Trust Agreement, the Trust Certificates are
issuable only as registered Trust Certificates without coupons in minimum
denominations of one percent Percentage Interest. As provided in the Trust
Agreement and subject to certain limitations therein set forth, Trust
Certificates are exchangeable for new Trust Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
Certificateholder 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.
A-7
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
Trust Certificate is registered as the owner hereof for all purposes, and none
of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Sale and Servicing Agreement and the disposition of
all property held as part of the Trust Estate. The Servicer of the Receivables
and, under certain circumstances, Certificateholders, may at their option
purchase the Trust Estate at a price specified in the Sale and Servicing
Agreement, and such purchase of the Receivables and other property of the
Trust will effect early retirement of the Trust Certificates; provided,
however, that such right of purchase is exercisable only as of the
Determination Date as of which the Pool Balance is less than or equal to 10%
of the Initial Pool Balance.
The Trust Certificates may not be acquired by (a) an employee benefit
plan (as defined in Section 3(3) of ERISA) that is subject to the provisions
of Title I of ERISA or Similar Law, (b) a plan described in Section 4975(e)(1)
of the Code that is subject to Section 4975 of the Code or Similar Law or (c)
any entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). By accepting and holding
this Trust Certificate, the Holder hereof shall be deemed to have represented
and warranted that it is not a Benefit Plan.
A-8
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 Trust Certificate, and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________, attorney, to transfer said Trust
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
Trust 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-9
EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE
[DATE]
Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Xxxxx Fargo Bank Minnesota, National Association
Sixth and Marquette Avenue
MAC N9311-161
Xxxxxxxxxxx, XX 00000
Attention: CTS/Asset Backed Securities Administration
Xxxxxx Xxxxxxx Auto Loan Trust 2003-HB1
Xxxxxx Xxxxxxx ABS Capital II Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx, with a copy to Xxxxxxxx Xxxxx
Re: Xxxxxx Xxxxxxx Auto Loan Trust 2003-HB1
Ladies and Gentlemen:
In connection with our disposition of the Asset Backed Certificates (the
"Trust Certificates") issued by the referenced trust (the "Trust") we certify
that (a) we understand that the Certificates have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and are being
transferred by us in a transaction that is exempt from the registration
requirements of the Act and (b) we have not offered or sold any Trust
Certificates to, or solicited offers to buy any Trust Certificates from, any
person, or otherwise approached or negotiated with any person with respect
thereto, in a manner that would be deemed, or taken any other action which
would result in, a violation of Section 5 of the Securities Act.
Very truly yours,
[NAME OF TRANSFEROR]
By:
--------------------------------
Authorized Officer
B-1
EXHIBIT C
FORM OF INVESTMENT LETTER
[DATE]
Wilmington Trust Company,
as Owner Trustee
Xxxxxx Square North
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Xxxxx Fargo Bank Minnesota, National Association
Sixth and Marquette Avenue
MAC N9311-161
Xxxxxxxxxxx, XX 00000
Attention: CTS/Asset Backed Securities Administration
Xxxxxx Xxxxxxx Auto Loan Trust 2003-HB1
Xxxxxx Xxxxxxx ABS Capital II Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx, with a copy to Xxxxxxxx Xxxxx
Re: Xxxxxx Xxxxxxx Auto Loan Trust 2003-HB1
Ladies and Gentlemen:
In connection with our proposed purchase of a ____% percentage interest
in the Asset Backed Certificates (the "Trust Certificates") of Xxxxxx Xxxxxxx
Auto Loan Trust 2003-HB1 (the "Issuer"), we confirm that:
1. We understand that the Trust Certificates have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and may
not be sold except as permitted in the following sentence. We understand and
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, (x) that such Trust Certificates are being offered only
in a transaction not involving any public offering within the meaning of the
Securities Act and (y) that such Trust Certificates may be resold, pledged or
transferred only (i) to the Depositor, (ii) so long as such Trust Certificate
is eligible for resale pursuant to Rule 144A under the Securities Act ("Rule
144A"), to a person whom we reasonably believe after due inquiry is a
"qualified institutional buyer" as defined in Rule 144A, acting for its own
account (and not for the account of others) or as a fiduciary or agent for
others (which others also are "qualified institutional buyers") to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A or (iii) in a sale, pledge or other transfer made in a transaction
otherwise exempt from the registration requirements of the Securities Act, in
which case the Owner Trustee shall require that both the prospective
transferor and the prospective
C-1
transferee certify to the Owner Trustee or the Certificate Registrar and the
Depositor in writing the facts surrounding such transfer, which certification
shall be in form and substance satisfactory to the Owner Trustee and the
Depositor. Except in the case of a transfer described in clauses (i) or (iii)
above, the Owner Trustee shall require that a written opinion of counsel
(which will not be at the expense of the Depositor, any affiliate of the
Depositor, the Owner Trustee or the Certificate Registrar) satisfactory to the
Owner Trustee or the Certificate Registrar and the Depositor be delivered to
the Owner Trustee or the Certificate Registrar and the Depositor to the effect
that such transfer will not violate the Securities Act, in each case in
accordance with any applicable securities laws of any state of the United
States. We will notify any purchaser of the Trust Certificates from us of the
above resale restrictions, if then applicable. We further understand that in
connection with any transfer of the Trust Certificates by us that the
Depositor and the Owner Trustee may request, and if so requested we will
furnish such certificates and other information as they may reasonably require
to confirm that any such transfer complies with the foregoing restrictions.
2. We are a "qualified institutional buyer" as defined under Rule 144A
under the Securities Act and are acquiring the Trust Certificates for our own
account (and not for the account of others) or as a fiduciary or agent for
others (which others also are "qualified institutional buyers"). We are
familiar with Rule 144A under the Securities Act and are aware that the seller
of the Trust Certificates and other parties intend to rely on the statements
made herein and the exemption from the registration requirements of the
Securities Act provided by Rule 144A.
3. We are not (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 or Similar Law, (ii) a
plan described in Section 4975(e)(1) of the Code that is subject to Section
4975 of the Code or Similar Law or (iii) any entity whose underlying assets
include plan assets by reason of a plan's investment in the entity (each, a
"Benefit Plan"). We hereby acknowledge that no transfer of any Trust
Certificate shall be permitted to be made to any person unless the Owner
Trustee has received a certificate from such transferee to the effect of the
preceding sentence.
4. We understand that the Depositor, the Owner Trustee, the Issuer,
Xxxxxx Xxxxxxx & Co. Incorporated and others will rely upon the truth and
accuracy of the foregoing acknowledgments, representations and agreements, and
we agree that if any of the acknowledgments, representations and warranties
deemed to have been made by us by our purchase of the Trust Certificates, for
our own account or for one or more accounts as to each of which we exercise
sole investment discretion, are no longer accurate, we shall promptly notify
the Depositor, the Owner Trustee and Xxxxxx Xxxxxxx & Co. Incorporated.
C-2
5. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By:
--------------------------------
Name:
Title:
Date:
-----------------------
C-3
