Exhibit 4.1
--------------------------------------------------------------------------------
HONDA TITLING C L.P.,
and
HONDA TITLING D L.P.,
as Transferors,
U.S. BANK NATIONAL ASSOCIATION,
as Owner Trustee,
WILMINGTON TRUST COMPANY,
as Delaware Owner Trustee,
and
THE BANK OF NEW YORK,
as Indenture Trustee
HONDA AUTO LEASE TRUST 1999-A
AUTO LEASE ASSET-BACKED NOTES AND CERTIFICATES
----------------------------------
1999-A SECURITIZATION TRUST AGREEMENT
Dated as of July 1, 1999
-------------------------------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS
Section 1.01 Definitions.....................................................................................5
Section 1.02 Interpretive Provisions.........................................................................6
ARTICLE TWO
CREATION OF TRUST; ESTABLISHMENT OF SUBI SECURITIES ACCOUNT
Section 2.01 Creation of Trust; Establishment of SUBI Securities Account.....................................6
Section 2.02 Office..........................................................................................7
Section 2.03 Appointment of Owner Trustees...................................................................7
Section 2.04 Conveyance of the 1999-A SUBI Certificates......................................................8
Section 2.05 Purposes and Powers.............................................................................9
Section 2.06 Acceptance by the 1999-A Owner Trustee.........................................................11
Section 2.07 Title to Trust Property........................................................................11
Section 2.08 Situs of Trust.................................................................................11
Section 2.09 Tax Reporting..................................................................................12
Section 2.10 Transfer of Collections........................................................................12
Section 2.11 Conveyance of the 1999-A Residual Value Insurance Certificates.................................12
ARTICLE THREE
ACCOUNTS; DISTRIBUTIONS; THE RESERVE FUND; STATEMENTS TO
SECURITYHOLDERS
Section 3.01 1999-A Note Distribution Account; 1999-A Certificate Distribution Account; 1999-A
Residual Value Insurance Proceeds Account; Reserve Fund........................................14
Section 3.02 Collections....................................................................................15
Section 3.03 Distributions..................................................................................16
Section 3.04 The Reserve Fund...............................................................................22
Section 3.05 Statements to Securityholders..................................................................28
Section 3.06 Agreement to Transfer Residual Value Insurance Proceeds........................................31
ARTICLE FOUR
CERTIFICATES
Section 4.01 The Certificates...............................................................................32
Section 4.02 Authentication and Delivery of Certificates....................................................32
-i-
TABLE OF CONTENTS
(CONTINUED)
Section 4.03 No Transfer of the Certificates................................................................32
Section 4.04 Mutilated, Destroyed, Lost or Stolen Certificates..............................................32
Section 4.05 Persons Deemed Owners..........................................................................33
ARTICLE FIVE
THE TRANSFERORS
Section 5.01 Representations of the Transferors.............................................................33
Section 5.04 Limitation on Liability of the Transferors and Others..........................................37
Section 5.05 The Transferors May Own Notes..................................................................37
Section 5.06 No Transfer....................................................................................37
Section 5.07 Tax Matters Partner............................................................................37
ARTICLE SIX
THE 1999-A OWNER TRUSTEE
Section 6.01 Duties of the 1999-A Owner Trustee and the Delaware Owner Trustee..............................38
Section 6.02 Certain Matters Affecting the 1999-A Owner Trustee and the Delaware Owner Trustee..............40
Section 6.03 1999-A Owner Trustee and Delaware Owner Trustee Not Liable for Notes, Certificates or
Leases.........................................................................................40
Section 6.04 1999-A Owner Trustee May Own Securities........................................................41
Section 6.05 1999-A Owner Trustee's Fees and Expenses.......................................................41
Section 6.06 Eligibility Requirements for 1999-A Owner Trustee..............................................42
Section 6.07 Resignation or Removal of 1999-A Owner Trustee; Resignation of Delaware Owner Trustee..........42
Section 6.08 Successor 1999-A Owner Trustee or Delaware Owner Trustee.......................................43
Section 6.09 Merger or Consolidation of 1999-A Owner Trustee or Delaware Owner Trustee......................44
Section 6.10 Appointment of Co-Trustee or Separate 1999-A Owner Trustee.....................................44
Section 6.11 Representations and Warranties of 1999-A Owner Trustee.........................................45
Section 6.12 Tax Returns....................................................................................46
Section 6.13 1999-A Owner Trustee May Enforce Claims Without Possession of the Certificates.................46
Section 6.14 Suit for Enforcement...........................................................................46
Section 6.15 Rights of 1999-A Indenture Trustee to Direct 1999-A Owner Trustee..............................47
Section 6.16 No Petition....................................................................................47
Section 6.17 Authority to Execute...........................................................................47
Section 6.18 Management of the 1999-A Securitization Trust..................................................48
Section 6.19 Negative Pledge................................................................................48
-ii-
TABLE OF CONTENTS
(CONTINUED)
ARTICLE SEVEN
TERMINATION
Section 7.01 Dissolution and Termination of the 1999-A Securitization Trust.................................48
Section 7.02 Optional Purchase of 1999-A SUBI Certificates..................................................49
ARTICLE EIGHT
TAX MATTERS
Section 8.01 Tax and Accounting Characterization............................................................49
ARTICLE NINE
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment......................................................................................50
Section 9.02 Protection of Title to 1999-A Securitization Trust.............................................52
Section 9.03 Limitations on Rights of Others................................................................53
Section 9.04 Notices........................................................................................53
Section 9.05 Severability of Provisions.....................................................................53
Section 9.06 Counterparts...................................................................................53
Section 9.07 Successors and Assigns.........................................................................53
Section 9.08 No Recourse....................................................................................54
Section 9.09 Headings.......................................................................................54
Section 9.10 Governing Law..................................................................................54
Section 9.11 Certificates Nonassessable and Fully Paid......................................................54
-iii-
EXHIBITS
Exhibit A - Form of Certificate.................................. A-1
Exhibit B - Form of Certificate of Trust......................... B-1
i
1999-A SECURITIZATION TRUST AGREEMENT
This 1999-A SECURITIZATION TRUST AGREEMENT, dated as of July 1, 1999
(as it may be amended, supplemented or restated from time to time, the "1999-A
Securitization Trust Agreement"), is made with respect to the formation of the
HONDA AUTO LEASE TRUST 1999-A (the "1999-A Securitization Trust"), by and among
HONDA TITLING C L.P., a Delaware limited partnership ("HTC LP"), HONDA TITLING D
L.P., a Delaware limited partnership ("HTD LP" and, together with HTC LP, the
"Transferors"), U.S. BANK NATIONAL ASSOCIATION, a national banking association
("U.S. Bank"), as owner trustee (in such capacity, the "1999-A Owner Trustee"),
WILMINGTON TRUST COMPANY, a Delaware corporation, as Delaware owner trustee (in
such capacity, the "Delaware Owner Trustee"), and THE BANK OF NEW YORK, a New
York banking corporation, as indenture trustee (in such capacity, the "1999-A
Indenture Trustee").
RECITALS
A. HTA LP and HTB LP, as Grantors and UTI Beneficiaries, the
Servicer, the Origination Trustee, the Delaware Trustee, and, for certain
limited purposes set forth therein, U.S. Bank, as Trust Agent, have entered into
that Second Amended and Restated Trust and Servicing Agreement, dated as of
April 1, 1998, amending and restating that certain Trust and Servicing
Agreement, dated as of September 1, 1997, among the same parties, amending and
restating that certain Trust Agreement, dated July 17, 1997, among the same
parties (as supplemented, amended or restated from time to time, the
"Origination Trust Agreement"), pursuant to which the Honda Lease Trust (the
"Origination Trust") was formed for the purpose of, among other things, taking
assignments and conveyances of, and holding in trust and dealing in, various
Trust Assets. Capitalized terms used and not defined in these Recitals have the
meanings given in the Agreement of Definitions described in Section 1.01 hereof.
B. The Origination Trust Agreement contemplates that certain of the
Trust Assets, other than those previously identified on the Origination Trust's
books and records as Other SUBI Assets and allocated to a separate SUBI
Sub-Trust, may be allocated to a SUBI Sub-Trust and thenceforth constitute SUBI
Assets within such SUBI Sub-Trust, and that in connection with any such
allocation the Origination Trustee shall create a SUBI at the direction of the
UTI Beneficiaries and shall issue to, or to the order of, the UTI Beneficiaries
one or more SUBI Certificates evidencing such SUBI, and the related SUBI
Beneficiaries and their permitted assignees generally will be entitled to the
net cash flows arising from, but only from, such SUBI Assets.
C. Concurrently herewith, HTA LP and HTB LP, as Grantors and UTI
Beneficiaries, HTC LP and HTD LP, as Transferors, the Servicer, the Origination
Trustee, the Delaware Trustee and U.S. Bank, as Trust Agent and, for certain
limited purposes set forth therein, as 1999-A Owner Trustee, are entering into
that certain 1999-A SUBI Supplement to Second Amended and Restated Trust and
Servicing Agreement dated as of July 1, 1999 (as amended, supplemented or
restated from time to time, the "1999-A SUBI Supplement"), pursuant to which the
parties thereto have agreed to supplement the terms of the Origination Trust
Agreement to cause the Origination Trustee to (i) identify a portfolio of Trust
Assets (the "1999-A SUBI Assets") to be designated to a SUBI Portfolio (the
"1999-A SUBI Portfolio"),
(ii) allocate such 1999-A SUBI Assets, along with interests in the 1999-A
Residual Value Insurance Proceeds, to a SUBI Sub-Trust (the "1999-A SUBI
Sub-Trust"), (iii) create the related 1999-A SUBI and (iv) create and issue to
or to the order of (a) HTA LP one certificate representing a 98.01% interest in
the 1999-A SUBI Assets (the "HTA LP/HTC LP 1999-A SUBI Certificate") and one
certificate representing a 0.99% interest in the 1999-A SUBI Assets (the "HTA
LP/HTD LP 1999-A SUBI Certificate"), and (b) HTB LP one certificate representing
a 0.99% interest in the 1999-A SUBI Assets (the "HTB LP/HTC LP 1999-A SUBI
Certificate") and one certificate representing a 0.01% interest in the 1999-A
SUBI Assets (the "HTB LP/HTD LP 1999-A SUBI Certificate" and, together with the
HTA LP/HTC LP 1999-A SUBI Certificate, the HTA LP/HTD LP 1999-A SUBI Certificate
and the HTB LP/HTC LP 1999-A SUBI Certificate, the "HTA LP/HTB LP 1999-A SUBI
Certificates").
D. Pursuant to the 1999-A SUBI Supplement, the parties hereto and
thereto desire that, concurrently herewith, U.S. Bank, as securities
intermediary (as defined in Section 8-102 of the UCC) (in such capacity, the
"1999-A Securities Intermediary"), establish two securities accounts (as defined
in Section 8-501 of the UCC) as follows: (i) a securities account in the name of
and for the benefit of HTA LP (the "HTA LP 1999-A SUBI Securities Account")
pursuant to that certain 1999-A Securities Accounts Control Agreement, dated as
of July 1, 1999, among HTA LP, HTB LP, HTC LP, HTD LP, the 1999-A Owner Trustee,
the 1999-A Indenture Trustee, the 1999-A Residual Value Insurance Co-Trustee and
the 1999-A Securities Intermediary (the "1999-A Securities Accounts Control
Agreement"), into which the HTA LP/HTC LP 1999-A SUBI Certificate and the HTA
LP/HTD LP 1999-A SUBI Certificate will be transferred and held until such time
as HTA LP directs the 1999-A Securities Intermediary to debit the HTA LP 1999-A
SUBI Securities Account to reflect the transfer of the HTA LP/HTC LP 1999-A SUBI
Certificate and the HTA LP/HTD LP 1999-A SUBI Certificate pursuant to a
Securitization and (ii) a securities account in the name of and for the benefit
of HTB LP (the "HTB LP 1999-A SUBI Securities Account") pursuant to the 1999-A
Securities Accounts Control Agreement, into which the HTB LP/HTC LP 1999-A SUBI
Certificate and the HTB LP/HTD LP 1999-A SUBI Certificate will be transferred
and held until such time as HTB LP directs the 1999-A Securities Intermediary to
debit the HTB LP 1999-A SUBI Securities Account to reflect the transfer of the
HTB LP/HTC LP 1999-A SUBI Certificate and the HTB LP/HTD LP 1999-A SUBI
Certificate pursuant to a Securitization.
E. Concurrently herewith, the Origination Trustee, on behalf of the
Origination Trust, and the Servicer are entering into the 1999-A Servicing
Supplement, dated as of July 1, 1999 (as amended, supplemented or restated from
time to time, the "1999-A Servicing Supplement") pursuant to which, among other
things, the terms of the Origination Trust Agreement and the Servicing
Agreement, dated April 1, 1998, by and among the UTI Beneficiaries, the Servicer
and the Origination Trust will be supplemented insofar as they apply solely to
the servicing of the 1999-A SUBI Sub-Trust created by the 1999-A SUBI Supplement
to provide for further specific servicing obligations that will benefit the SUBI
Beneficiaries with respect to the 1999-A SUBI created by the 1999-A SUBI
Supplement.
F. Concurrently herewith, the UTI Beneficiaries, HTC LP and HTD LP
are entering into that certain 1999-A SUBI Certificates Purchase and Sale
Agreement, dated as of July 1, 1999 (the "1999-A SUBI Certificates Purchase and
Sale Agreement"), pursuant to which the UTI Beneficiaries will sell, without
recourse, to HTC LP and HTD LP, all of their respective
2
right, title and interest in and to the 1999-A SUBI Assets and the HTA LP/HTB LP
1999-A SUBI Certificates, all monies due thereon and paid thereon in respect
thereof and the right to realize on any property that may be deemed to secure
the interest in the 1999-A SUBI Assets, and all proceeds thereof from and after
July 1, 1999. In connection therewith, and concurrently herewith and therewith,
(1) HTA LP will transfer (a) the HTA LP/HTC LP 1999-A SUBI Certificate to HTC LP
and (b) the HTA LP/HTD LP 1999-A SUBI Certificate to HTD LP, and (2) HTB LP will
transfer (a) the HTB LP/HTC LP 1999-A SUBI Certificate to HTC LP and (b) the HTB
LP/HTD LP 1999-A SUBI Certificate to HTD LP, all consideration of the pro rata
cash payment to the UTI Beneficiaries of an amount equal to the Aggregate Net
Investment Value of the 1999-A SUBI Assets at the close of business on June 30,
1999 (the "Cutoff Date"), based on their respective share of the 1999-A SUBI
Assets less the cost and expenses of the Securitization and the value of any
securities issued in connection with the Securitization and retained by HTC LP
and HTD LP.
G. Concurrently herewith, the 1999-A Securities Intermediary will,
by book-entry registration, reallocate the beneficial interests represented by
the HTA LP/HTB LP 1999-A SUBI Certificates such that such beneficial interests
shall be represented by four new SUBI Certificates as follows: (i) one
certificate to HTC LP representing a 98.802% beneficial interest in the 1999-A
SUBI Assets (the "HTC LP 1999-A SUBI Certificate"), (ii) one certificate to HTD
LP representing a 0.998% beneficial interest in the 1999-A SUBI Assets (the "HTD
LP 1999-A SUBI Certificate" and, together with the HTC LP 1999-A SUBI
Certificate, the "1999-A SUBI Certificates"), (iii) one certificate to HTC LP
representing a 0.198% beneficial interest in the 1999-A SUBI Assets (the "HTC LP
Retained 1999-A SUBI Certificate") and (iv) one certificate to HTD LP
representing a 0.002% beneficial interest in the 1999-A SUBI Assets (the "HTD LP
Retained 1999-A SUBI Certificate" and, together with the HTC LP Retained 1999-A
SUBI Certificate, the "Retained 1999-A SUBI Certificates"). The 1999-A SUBI
Certificates shall be exclusive of proceeds of the Residual Value Insurance
Policy or other residual value insurance policies relating to the 1999-A
Contracts and 1999-A Leased Vehicles.
H. Concurrently herewith, pursuant to the 1999-A SUBI Supplement,
the parties thereto have agreed to cause the Origination Trustee to create and
issue to or to the order of (i) HTA LP one certificate (the "HTA LP/HTC LP
1999-A Residual Value Insurance Certificate") representing a 98.01% interest in
the proceeds of the Residual Value Insurance Policy and any other residual value
insurance policy, in each case to the extent that such proceeds relate to the
1999-A Contracts and the 1999-A Leased Vehicles and net of any loss adjustment
expenses that may be offset against such proceeds (the "1999-A Residual Value
Insurance Proceeds"); (ii) HTA LP one certificate representing a 0.99% interest
in the 1999-A Residual Value Insurance Proceeds (the "HTA LP/HTD LP 1999-A
Residual Value Insurance Certificate"); (iii) HTB LP one certificate
representing a 0.99% interest in the 1999-A Residual Value Insurance Proceeds
(the "HTB LP/HTC LP 1999-A Residual Value Insurance Certificate"); and (iv) HTB
LP one certificate representing a 0.01% interest in the 1999-A Residual Value
Insurance Proceeds (the "HTB LP/HTD LP 1999-A Residual Value Insurance
Certificate" and, together with the HTA LP/HTC LP 1999-A Residual Value
Insurance Certificate, the HTA LP/HTD LP 1999-A Residual Value Insurance
Certificate and the HTB LP/HTC LP 1999-A Residual Value Insurance Certificate,
the "1999-A Residual Value Insurance Certificates").
3
I. Concurrently herewith, pursuant to the 1999-A SUBI Certificates
Purchase and Sale Agreement, the parties thereto have agreed that HTA LP and HTB
LP will transfer, without recourse, to HTC LP and HTD LP all of their respective
right, title and interest in and to the 1999-A Residual Value Insurance Proceeds
and the 1999-A Residual Value Insurance Certificates, all monies due thereon and
paid thereon in respect thereof and all proceeds thereof. In connection
therewith, and concurrently herewith and therewith, (1) HTA LP will transfer (a)
the HTA LP/HTC LP 1999-A Residual Value Insurance Certificate to HTC LP and (b)
the HTA LP/HTD LP 1999-A Residual Value Insurance Certificate to HTD LP, and (2)
HTB LP will transfer (a) the HTB LP/HTC LP 1999-A Residual Value Insurance
Certificate to HTC LP and (b) the HTB LP/HTD LP 1999-A Residual Value Insurance
Certificate to HTD LP, all consideration of the delivery by HTC LP and HTD LP to
HTA LP and HTB LP of the HTC LP Insurance Premium Subordinated Notes and the HTD
LP Insurance Premium Subordinated Notes.
J. Concurrently herewith, the 1999-A Securities Intermediary will
establish a securities account (as defined in Section 8-501 of the UCC) in the
name of and for the benefit of HTC LP (the "HTC LP 1999-A SUBI Securities
Account") pursuant to the 1999-A Securities Accounts Control Agreement, into
which the HTC LP 1999-A SUBI Certificate and the HTC LP Retained 1999-A SUBI
Certificate will initially be transferred and held until such time as HTC LP
directs the 1999-A Securities Intermediary to debit the HTC LP 1999-A SUBI
Securities Account to reflect the transfer of the HTC LP 1999-A SUBI Certificate
relating to a Securitization involving the 1999-A SUBI.
K. Concurrently herewith, the 1999-A Securities Intermediary will
establish a securities account (as defined in Section 8-501 of the UCC) in the
name of and for the benefit of HTD LP (the "HTD LP 1999-A SUBI Securities
Account") pursuant to the 1999-A Securities Accounts Control Agreement, into
which the HTD LP 1999-A SUBI Certificate and the HTD LP Retained 1999-A SUBI
Certificate will initially be transferred and held until such time as HTD LP
directs the 1999-A Securities Intermediary to debit the HTD LP 1999-A SUBI
Securities Account to reflect the transfer of the HTD LP 1999-A SUBI Certificate
relating to a Securitization involving the 1999-A SUBI.
L. Concurrently herewith, the 1999-A Securities Intermediary will
establish a securities account (as defined in Section 8-501 of the UCC) in the
name of and for the benefit of the 1999-A Securitization Trust (the "99.8%
1999-A SUBI Securities Account") pursuant to the 1999-A Securities Accounts
Control Agreement, into which the HTC LP 1999-A SUBI Certificate will be
transferred from the HTC LP 1999-A SUBI Securities Account and the HTD LP 1999-A
SUBI Certificate will be transferred from the HTD LP 1999-A SUBI Securities
Account, respectively, and held until such time as the 1999-A Owner Trustee
directs the 1999-A Securities Intermediary to debit the 99.8% 1999-A SUBI
Securities Account to reflect the transfer of the HTC LP 1999-A SUBI Certificate
and the HTD LP 1999-A SUBI Certificate to the 1999-A Securitization Trust
relating to the Securitization involving the 1999-A SUBI.
M. Concurrently herewith, the 1999-A Securities Intermediary will
establish a securities account (as defined in Section 8-501 of the UCC) in the
name of and for the benefit of the 1999-A Securitization Trust in respect of the
1999-A Residual Value Insurance Co-Trust (the "1999-A Residual Value Insurance
Securities Account") pursuant to the 1999-A Securities
4
Accounts Control Agreement, into which (1) the HTA LP/HTC LP 1999-A Residual
Value Insurance Certificate and the HTB LP/HTC LP 1999-A Residual Value
Insurance Certificate will be transferred from the HTC LP 1999-A SUBI Securities
Account and (2) the HTA LP/HTD LP 1999-A Residual Value Insurance Certificate
and the HTB LP/HTD LP 1999-A Residual Value Insurance Certificate will be
transferred from the HTD LP 1999-A SUBI Securities Account.
N. The parties hereto desire to enter into this 1999-A
Securitization Trust Agreement to continue the 1999-A Securitization Trust
created pursuant to the Trust Agreement, dated as of March 4, 1999 by and among
HTC LP, the 1999-A Owner Trustee and the Delaware Trustee and by the filing of
the Certificate of Trust of the 1999-A Securitization Trust with the Secretary
of State of the State of Delaware on March 4, 1999, pursuant to which HTC LP and
HTD LP will transfer the 1999-A SUBI Certificates to the 1999-A Securitization
Trust and, in exchange therefor, the 1999-A Securitization Trust will pledge the
1999-A SUBI Certificates to the 1999-A Indenture Trustee in connection with the
Securitization pursuant to the Indenture and will issue the Certificates and
deliver the Notes representing interests in the 1999-A Securitization Trust in
respect of the 1999-A Note Securitization Trust which will be secured by the
1999-A SUBI Certificates. The HTC LP Retained 1999-A SUBI Certificate and the
HTD LP Retained 1999-A SUBI Certificate will be retained by HTC LP and HTD LP,
respectively
O. Also pursuant to this 1999-A Securitization Trust Agreement, HTC
LP and HTD LP will transfer, without recourse, to the 1999-A Residual Value
Insurance Co-Trust all of their respective right, title and interest in and to
the 1999-A Residual Value Insurance Proceeds and the 1999-A Residual Value
Insurance Certificates, in consideration of the delivery by the 1999-A Residual
Value Insurance Co-Trust to HTC LP and HTD LP of the Co-Trust Insurance Premium
Subordinated Notes.
P. Concurrently herewith, the 1999-A Indenture Trustee and the
1999-A Securitization Trust are entering into that certain indenture, dated as
of July 1, 1999 (the "Indenture"), pursuant to which the 1999-A Indenture
Trustee will issue the Notes and the 1999-A Securitization Trust will grant a
security interest in all of the assets held by the 1999-A Securitization Trust
(excluding any interest in respect of the 1999-A Residual Value Insurance
Co-Trust), including the 1999-A SUBI Certificates, to the 1999-A Indenture
Trustee to secure the 1999-A Securitization Trust's obligations under the
Indenture.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01 DEFINITIONS. For all purposes of this 1999-A
Securitization Trust Agreement, except as otherwise expressly provided or unless
the context otherwise requires, capitalized terms used and not otherwise defined
herein shall have the meanings ascribed thereto in the Agreement of Definitions
(as it may be amended, supplemented or restated from time to time, the
"Agreement of Definitions"), dated as of July 1, 1999, by and among the
Origination Trustee, the Delaware Trustee, HTA LP, HTB LP, HTC LP, HTD LP, the
Servicer, the Delaware Owner Trustee, the 1999-A Indenture Trustee and U.S.
Bank, as trust agent and as owner trustee;
5
PROVIDED, HOWEVER, in the event of any conflict between a definition set forth
both herein and the Agreement of Definitions, the definition set forth herein
shall prevail.
Section 1.02 INTERPRETIVE PROVISIONS. For all purposes of this 1999-A
Securitization Trust Agreement, except as otherwise expressly provided or unless
the context otherwise requires, (i) terms used in this 1999-A Securitization
Trust Agreement include, as appropriate, all genders and the plural as well as
the singular, (ii) references to this 1999-A Securitization Trust Agreement
include all Exhibits and Schedules hereto, (iii) references to words such as
"herein", "hereof" and the like shall refer to this 1999-A Securitization Trust
Agreement as a whole and not to any particular part, Article or Section within
this 1999-A Securitization Trust Agreement, (iv) references to a section such as
"Section 2.01" or an Article such as "Article Two" shall refer to the applicable
Section or Article of this 1999-A Securitization Trust Agreement, (v) the term
"include" and all variations thereof shall mean "include without limitation",
(vi) the term "or" shall mean "and/or", (vii) the term "proceeds" shall have the
meaning ascribed to such term in the UCC, (viii) the phrase "Origination
Trustee, acting on behalf of the Origination Trust," or words of similar import,
shall be deemed to refer to the Origination Trustee, acting on behalf of the
Honda Lease Trust and all beneficiaries thereof, and (ix) the phrase "1999-A
Owner Trustee, acting on behalf of the 1999-A Securitization Trust," or words of
similar import, shall be deemed to refer to the 1999-A Owner Trustee, acting on
behalf of the Honda Auto Lease Trust 1999-A and all beneficiaries thereof.
ARTICLE TWO
CREATION OF TRUST; ESTABLISHMENT OF SUBI
SECURITIES ACCOUNT
Section 2.01 CREATION OF TRUST; ESTABLISHMENT OF SUBI SECURITIES
ACCOUNT.
(a) CREATION OF TRUST. Upon the execution of this 1999-A Securitization
Trust Agreement by the parties hereto, there is hereby continued the "Honda Auto
Lease Trust 1999-A". It is the intention of the parties hereto that the 1999-A
Securitization Trust constitute a business trust under the Business Trust
Statute and that this 1999-A Securitization Trust Agreement constitute the
governing instrument of such business trust.
(b) (i) THE 1999-A NOTE SECURITIZATION TRUST AS A SEPARATE SERIES. A
separate series of the 1999-A Securitization Trust shall be established as
provided in Section 3806(b)(2) of the Business Trust Statute and shall be known
as the "1999-A Note Securitization Trust". The debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to the
1999-A Note Securitization Trust or the assets held thereby shall be enforceable
against the assets held by the 1999-A Note Securitization Trust only, and not
against the assets of the 1999-A Securitization Trust generally or against the
assets held by any other series of the 1999-A Securitization Trust. Separate and
distinct records shall be maintained for the 1999-A Note Securitization Trust,
and the assets held by the 1999-A Note Securitization Trust shall be held and
accounted for separately from the other assets of the 1999-A Securitization
Trust or any other series of the 1999-A Securitization Trust.
(ii) THE 1999-A RESIDUAL VALUE INSURANCE CO-TRUST AS A SEPARATE
SERIES. A separate series of the 1999-A Securitization Trust shall be
established as provided in Section
6
3806(b)(2) of the Business Trust Statute and shall be known as the "1999-A
Residual Value Insurance Co-Trust". The debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to the
1999-A Residual Value Insurance Co-Trust or the assets held thereby shall be
enforceable against the assets held by the 1999-A Residual Value Insurance
Co-Trust only, and not against the assets of the 1999-A Securitization Trust
generally or against the assets held by any other series of the 1999-A
Securitization Trust. Separate and distinct records shall be maintained for the
1999-A Residual Value Insurance Co-Trust, and the assets held by the 1999-A
Residual Value Insurance Co-Trust shall be held and accounted for separately
from the other assets of the 1999-A Securitization Trust or any other series of
the 1999-A Securitization Trust.
(c) ESTABLISHMENT OF 99.8% 1999-A SUBI SECURITIES ACCOUNT.
(i) Pursuant to the 1999-A Securities Accounts Control
Agreement, a securities account (as such term is defined in Section
8-501(a) of the UCC) (the "99.8% 1999-A SUBI Securities Account") will
be established by and maintained with U.S. Bank, in its capacity as the
1999-A Securities Intermediary, for the benefit of the 1999-A
Securitization Trust.
(ii) HTC LP and HTD LP shall direct the 1999-A Securities
Intermediary to credit to the 99.8% 1999-A SUBI Securities Account the
interests in the 1999-A SUBI Certificates transferred, assigned or
otherwise conveyed by HTC LP and HTD LP as described in Section 2.04.
(d) ESTABLISHMENT OF 1999-A RESIDUAL VALUE INSURANCE SECURITIES
ACCOUNT.
(i) Pursuant to the 1999-A Securities Accounts Control
Agreement, a securities account (as such term is defined in Section
8-501(a) of the UCC) (the "1999-A Residual Value Insurance Securities
Account") will be established by and maintained with U.S. Bank, in its
capacity as the 1999-A Securities Intermediary, for the benefit of the
1999-A Securitization Trust in respect of the 1999-A Residual Value
Insurance Co-Trust.
(ii) HTC LP and HTD LP shall direct the 1999-A Securities
Intermediary to credit to the 1999-A Residual Value Insurance
Securities Account the interests in the 1999-A Residual Value Insurance
Certificates transferred, assigned or otherwise conveyed by HTC LP and
HTD LP as described in Section 2.11.
Section 2.02 OFFICE. The chief executive office and principal place of
business of the 1999-A Securitization Trust shall be in care of the 1999-A Owner
Trustee, initially at the Corporate Trust Office and thereafter at such other
address in the United States as the 1999-A Owner Trustee may designate by
written notice to the Certificateholders, the Noteholders, HTC LP, HTD LP, the
Delaware Owner Trustee and the 1999-A Indenture Trustee.
Section 2.03 APPOINTMENT OF OWNER TRUSTEES. HTC LP and HTD LP hereby appoint the
1999-A Owner Trustee as trustee of the 1999-A Securitization Trust and appoint
the Delaware Owner Trustee as the co-trustee of the 1999-A Securitization Trust,
in each case with respect to both the 1999-A Note Securitization Trust and the
1999-A Residual Value Insurance
7
Co-Trust, and in each case effective as of the date hereof, to have all the
rights, powers and duties set forth herein, and the 1999-A Owner Trustee and the
Delaware Owner Trustee hereby accept such appointment. The 1999-A Owner Trustee
and the Delaware Owner Trustee shall file the Certificate of Trust with the
Delaware Secretary of State.
Section 2.04 CONVEYANCE OF THE 1999-A SUBI CERTIFICATES.
(a) CONVEYANCE TO THE 1999-A OWNER TRUSTEE. In consideration of the
1999-A Securitization Trust's delivery to HTC LP and HTD LP of (i) executed and
authenticated Notes, in authorized denominations in the aggregate equal to the
Initial Class A-1 Note Balance, the Initial Class A-2 Note Balance, the Initial
Class A-3 Note Balance, the Initial Class A-4 Note Balance, the Initial Class
A-5 Note Balance, the Initial Class B Note Balance and the Initial Class C Note
Balance, and (ii) executed and authenticated Certificates, HTC LP and HTD LP do
hereby transfer, assign and otherwise convey to the 1999-A Owner Trustee, in
trust for the benefit of the Noteholders and the Certificateholders, to the full
extent of HTC LP's and HTD LP's interest therein, without recourse (subject to
HTC LP's and HTD LP's obligations herein):
(i) all right, title and interest of HTC LP in and to the HTC
LP 1999-A SUBI Certificate, the rights in and benefits of the HTC LP
1999-A SUBI Interest evidenced by the HTC LP 1999-A SUBI Certificate
and all monies due thereon and paid thereon or in respect thereof on
and after the Cutoff Date; PROVIDED, HOWEVER, that the transfer of such
HTC LP 1999-A SUBI Certificate may be uncertificated and evidenced
solely by book-entry registration of such transfer;
(ii) all right, title and interest of HTD LP in and to the HTD
LP 1999-A SUBI Certificate, the rights in and benefits of the HTD LP
1999-A SUBI Interest evidenced by the HTD LP 1999-A SUBI Certificate
and all monies due thereon and paid thereon or in respect thereof on
and after the Cutoff Date; PROVIDED, HOWEVER, that the transfer of such
HTD LP 1999-A SUBI Certificate may be uncertificated and evidenced
solely by book-entry registration of such transfer;
(iii) the right to realize upon any property that may be
deemed to secure the foregoing;
(iv) all rights accruing to the holder of the 1999-A SUBI
Certificates under the 1999-A SUBI Supplement, the Origination Trust
Agreement, the 1999-A Servicing Supplement, the Servicing Agreement,
this 1999-A Securitization Trust Agreement and the 1999-A SUBI
Certificates Purchase and Sale Agreement;
(v) all rights accruing to the holder of the 1999-A SUBI
Certificates as a beneficiary of amounts held in the 1999-A SUBI
Accounts; and
(vi) all proceeds of the foregoing; PROVIDED, HOWEVER, that
all monies and payments due or payable under the Residual Value
Insurance Policy or any other residual value insurance policies
applicable to the 1999-A Leased Vehicles or the 1999-A Contracts and
the right to receive such payments and monies are being transferred to
the 1999-A Residual Value Insurance Co-Trust and are not hereby
transferred, assigned or otherwise conveyed to the 1999-A Note
Securitization Trust nor will they, under any
8
circumstances, be subject to the Lien of the 1999-A Securitization
Trust or any claim by the 1999-A Note Securitization Trust.
(b) GRANT OF SECURITY INTEREST.
(i) The parties hereto intend that the transfer of the 1999-A
SUBI Certificates to the 1999-A Securitization Trust hereunder be a
sale. In the event that the transfers hereunder of the 1999-A SUBI
Certificates are for any reason not considered a sale, each of HTC LP
and HTD LP hereby also grants to the 1999-A Owner Trustee a security
interest in all of its right, title and privileges and interest in and
to the foregoing (exclusive of the monies and payments referred to in
Section 2.04(a)(v)), and the 1999-A Owner Trustee shall have all the
rights, powers and privileges thereto and therein of a secured party
under the Delaware UCC.
(ii) Pursuant to the Indenture, the 1999-A Securitization
Trust shall grant to the 1999-A Indenture Trustee, for the benefit of
the Noteholders, a security interest in the 1999-A SUBI Certificates
and the related property set forth in Section 2.04(a).
(c) TERMINATION. The rights and powers granted herein to the 1999-A
Owner Trustee have been granted in order to perfect its security interests in
the assets referred to in Section 2.04(a), are powers coupled with an interest
and will not be affected either by the bankruptcy of any other person or entity
or by the lapse of time. The obligations of the 1999-A Securities Intermediary
hereunder shall continue in effect until the security interests of the 1999-A
Owner Trustee in the 99.8% 1999-A SUBI Securities Account have been terminated
pursuant to the terms of this 1999-A Securitization Trust Agreement and the
1999-A Owner Trustee has notified the 1999-A Securities Intermediary of such
termination in writing. Upon (i) a termination of this 1999-A Securitization
Trust Agreement pursuant to Section 7.01(a)(i) or (iii), the 1999-A Owner
Trustee is hereby authorized to convey all interest in (x) the HTC LP 1999-A
SUBI Certificate and the HTC LP 1999-A SUBI Interest evidenced thereby to HTC LP
and (y) the HTD LP 1999-A SUBI Certificate and the HTD LP 1999-A SUBI Interest
evidenced thereby to HTD LP, and (ii) a termination of this 1999-A
Securitization Trust Agreement pursuant to Section 7.01(a)(ii) or a repurchase
of the 1999-A SUBI Certificates and the Retained 1999-A SUBI Certificates by the
Servicer pursuant to Section 7.02, the 1999-A Owner Trustee is hereby authorized
to convey to the Servicer all interests in the 1999-A SUBI Certificates and the
1999-A SUBI Interest evidenced thereby. Upon a termination of this 1999-A
Securitization Trust Agreement pursuant to Section 7.01(a)(iv), the 1999-A Owner
Trustee is hereby authorized to convey, as applicable, all interests in the
1999-A SUBI Certificates and the 1999-A SUBI Interest evidenced thereby to the
purchaser thereof. The 1999-A Owner Trustee shall not be responsible for or have
any liability with respect to any losses incurred in connection with any such
liquidation, other than as a result of its own negligence or willful
misfeasance.
Section 2.05 PURPOSES AND POWERS.
(a) As permitted by Section 3806(b)(2) of the Business Trust Statute,
the 1999-A Note Securitization Trust and the 1999-A Residual Value Insurance
Co-Trust are each designated as a series of the 1999-A Securitization Trust and
shall have separate business purposes and powers as set forth in subsections (b)
and (c) of this Section 2.05.
9
(b) The sole purpose of the 1999-A Securitization Trust in respect of
the 1999-A Note Securitization Trust is to conserve the 1999-A Securitization
Trust Estate and collect and disburse the periodic income therefrom for the use
and benefit of the Certificateholders and the Noteholders and, in furtherance of
such purpose, to engage in the following ministerial activities:
(i) to acquire the 1999-A SUBI Certificates and the other
property of the 1999-A Securitization Trust Estate with respect to the
1999-A Note Securitization Trust from HTC LP and HTD LP in exchange for
the issuance and delivery of the Notes and the Certificates;
(ii) to issue the Certificates pursuant to this 1999-A
Securitization Trust Agreement, to pledge the 1999-A SUBI Certificates
to the 1999-A Indenture Trustee in exchange for the executed and
authenticated Notes and to deliver to, or upon the order of, HTC LP and
HTD LP the executed Notes and the Certificates;
(iii) to pay interest on and principal of the Notes and the
Certificates;
(iv) to assign, grant, transfer, pledge, mortgage and convey
to the 1999-A Indenture Trustee the 1999-A SUBI Certificates pursuant
to the Indenture as security for the Notes and to hold, manage and
distribute to the Certificateholders pursuant to the terms of this
1999-A Securitization Trust Agreement any portion of the 1999-A
Securitization Trust Estate released from the Lien of, and remitted to
the 1999-A Securitization Trust pursuant to, the Indenture;
(v) to enter into and perform its obligations under the 1999-A
Securitization Documents to which the 1999-A Securitization Trust is a
party;
(vi) to engage in other transactions, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or that are incidental thereto or connected therewith;
and
(vii) subject to compliance with the 1999-A Securitization
Documents, to engage in such other activities as may be required in
connection with conserving the 1999-A Securitization Trust Estate and
making distributions to the Noteholders and the Certificateholders.
The 1999-A Securitization Trust in respect of the 1999-A Note
Securitization 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
1999-A Securitization Trust Agreement or the other 1999-A Securitization
Documents.
(c) The sole purpose of the 1999-A Securitization Trust in respect of
the 1999-A Residual Value Insurance Co-Trust is to conserve the 1999-A Residual
Value Insurance Certificates and the 1999-A Residual Value Insurance Proceeds
represented thereby and collect and disburse the periodic income therefrom in
accordance with the terms of the Co-Trust Insurance Premium Subordinated Notes
and, in furtherance of such purpose, to engage in the following ministerial
activities:
10
(i) to acquire the 1999-A Residual Value Insurance
Certificates from HTC LP and HTD LP in exchange for the issuance and
delivery to HTC LP and HTD LP of the Co-Trust Insurance Premium
Subordinated Notes;
(ii) to enter into and perform its obligations under the
1999-A Securitization Documents to which the 1999-A Securitization
Trust in respect of the 1999-A Residual Value Insurance Co-Trust is a
party; and
(iii) to engage in other transactions, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or that are incidental thereto or connected therewith
The 1999-A Securitization Trust in respect of the 1999-A Residual Value
Insurance Co-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
1999-A Securitization Trust Agreement or the other 1999-A Securitization
Documents.
(d) The 1999-A Securitization Trust shall not engage in any activity
other than as required or permitted by clauses (b) and (c) of this Section 2.05.
Section 2.06 ACCEPTANCE BY THE 1999-A OWNER TRUSTEE. The 1999-A Owner
Trustee hereby accepts on behalf of the 1999-A Securitization Trust in respect
of the 1999-A Note Securitization Trust all consideration conveyed by HTC LP and
HTD LP pursuant to Section 2.04(a) and declares that the 1999-A Owner Trustee
shall hold such consideration in trust as herein set forth for the benefit of
the Noteholders and the Certificateholders, subject to the terms and provisions
of this 1999-A Securitization Trust Agreement and the Indenture. In accepting
the 1999-A SUBI Certificates, the 1999-A Owner Trustee hereby releases all
claims to the Trust Assets allocated to the UTI Sub-Trust or any other Sub-Trust
and, in the event that such release is not given effect, to fully subordinate
all claims it may be deemed to have against the Trust Assets allocated thereto.
Section 2.07 TITLE TO TRUST PROPERTY. Legal title to the 1999-A
Securitization Trust Estate shall be vested at all times in the 1999-A
Securitization Trust as a separate legal entity, except where applicable law in
any jurisdiction requires title to any part of the 1999-A Securitization Trust
Estate to be vested in a trustee, in which case title shall be deemed to be
vested in the 1999-A Owner Trustee, a co-trustee or a separate trustee, as the
case may be.
Section 2.08 SITUS OF TRUST. The 1999-A Securitization Trust shall be
located in the State of Delaware and administered in the State of Illinois. All
bank accounts maintained by the 1999-A Owner Trustee on behalf of the 1999-A
Securitization Trust shall be located in California, Delaware, Illinois or New
York. The 1999-A Securitization Trust shall not have any employees in any state
other than Delaware; PROVIDED, HOWEVER, that nothing herein shall restrict or
prohibit the 1999-A Owner Trustee from having employees within or without the
State of Delaware. Payments shall be received by the 1999-A Securitization Trust
only in California, Delaware, Illinois or New York and payments shall be made by
the 1999-A Securitization Trust only from California, Delaware, Illinois or New
York.
11
Section 2.09 TAX REPORTING. Unless otherwise required by appropriate
tax authorities, the 1999-A Securitization Trust shall not file or cause to be
filed annual or other income or franchise tax returns and shall not be required
to obtain any taxpayer identification number.
Section 2.10 TRANSFER OF COLLECTIONS. The parties hereto acknowledge
that the Origination Trustee, on behalf of the Origination Trust, has made a
complete transfer to the 1999-A Owner Trustee of the Collections in respect of
the 1999-A SUBI Assets contained in all accounts maintained by the Origination
Trustee (excluding 1999-A Residual Value Insurance Proceeds or any proceeds from
any other residual value insurance policies) and, except as provided in this
1999-A Securitization Trust Agreement, the 1999-A SUBI Supplement and the 1999-A
Servicing Supplement, neither the Origination Trustee nor the Servicer has any
right to direct such funds to a third party or to receive such funds (other than
to receive such funds pursuant to an investment thereof in Eligible Investments
on which Origination Trustee is the obligor).
Section 2.11 CONVEYANCE OF THE 1999-A RESIDUAL VALUE INSURANCE
CERTIFICATES.
(a) CONVEYANCE TO THE 1999-A RESIDUAL VALUE INSURANCE CO-TRUST. In
consideration of the 1999-A Securitization Trust in respect of the 1999-A
Residual Value Insurance Co-Trust's delivery to HTC LP and HTD LP of the
Co-Trust Insurance Premium Subordinated Notes, HTC LP and HTD LP do hereby
transfer, assign and otherwise convey to the 1999-A Securitization Trust in
respect of the 1999-A Residual Value Insurance Co-Trust, to the full extent of
HTC LP's and HTD LP's interest therein, without recourse (subject to HTC LP's
and HTD LP's obligations herein):
(i) all right, title and interest of HTC LP in and to the HTA
LP/HTC LP 1999-A Residual Value Insurance Certificate and the HTB
LP/HTC LP 1999-A Residual Value Insurance Certificate, the rights in
and benefits of the 1999-A Residual Value Insurance Proceeds evidenced
by the HTA LP/HTC LP 1999-A Residual Value Insurance Certificate and
the HTB LP/HTC LP 1999-A Residual Value Insurance Certificate and all
monies due thereon and paid thereon or in respect thereof on and after
the Cutoff Date; PROVIDED, HOWEVER, that the transfer of the HTA LP/HTC
LP 1999-A Residual Value Insurance Certificate and the HTB LP/HTC LP
1999-A Residual Value Insurance Certificate may be uncertificated and
evidenced solely by book-entry registration of such transfer;
(ii) all right, title and interest of HTD LP in and to the HTA
LP/HTD LP 1999-A Residual Value Insurance Certificate and the HTB
LP/HTD LP 1999-A Residual Value Insurance Certificate, the rights in
and benefits of the 1999-A Residual Value Insurance Proceeds evidenced
by the HTA LP/HTD LP 1999-A Residual Value Insurance Certificate and
the HTB LP/HTD LP 1999-A Residual Value Insurance Certificate and all
monies due thereon and paid thereon or in respect thereof on and after
the Cutoff Date; PROVIDED, HOWEVER, that the transfer of the HTA LP/HTD
LP 1999-A Residual Value Insurance Certificate and the HTB LP/HTD LP
1999-A Residual Value Insurance Certificate may be uncertificated and
evidenced solely by book-entry registration of such transfer;
12
(iii) the right to realize upon any property that may be
deemed to secure the foregoing;
(iv) all rights accruing to the holder of the 1999-A Residual
Value Insurance Certificates under the 1999-A SUBI Supplement, this
1999-A Securitization Trust Agreement, the 1999-A Servicing Supplement
and the 1999-A SUBI Certificates Purchase and Sale Agreement; and
(v) all proceeds of the foregoing.
(b) TERMINATION. Upon a termination of this 1999-A Securitization Trust
Agreement pursuant to Section 7.01(a)(i), (ii) or (iii) or a repurchase of the
1999-A SUBI Certificates and the Retained 1999-A SUBI Certificates by the
Servicer pursuant to Section 7.02, the 1999-A Securitization Trust in respect of
the 1999-A Residual Value Insurance Co-Trust is hereby authorized to convey all
interest in (x) the HTA LP/HTC LP 1999-A Residual Value Insurance Certificate
and the HTB LP/HTC LP 1999-A Residual Value Insurance Certificate and the
interests in the 1999-A Residual Value Insurance Proceeds evidenced thereby to
HTC LP and (y) the HTA LP/HTD LP 1999-A Residual Value Insurance Certificate and
the HTB LP/HTD LP 1999-A Residual Value Insurance Certificate and the interests
in the 1999-A Residual Value Insurance Proceeds evidenced thereby to HTD LP.
Upon a termination of this 1999-A Securitization Trust Agreement pursuant to
Section 7.01(a)(iv), the 1999-A Securitization Trust in respect of the 1999-A
Residual Value Insurance Co-Trust is hereby authorized to convey, as applicable,
all interests in the 1999-A Residual Value Insurance Certificates and the
interests in the 1999-A Residual Value Insurance Proceeds evidenced thereby to
the purchaser thereof. The 1999-A Securitization Trust in respect of the 1999-A
Residual Value Insurance Co-Trust shall not be responsible for or have any
liability with respect to any losses incurred in connection with any such
liquidation, other than as a result of its own negligence or willful
misfeasance.
(c) ACCEPTANCE. The 1999-A Owner Trustee hereby accepts on behalf of
the 1999-A Securitization Trust in respect of the 1999-A Residual Value
Insurance Co-Trust all consideration conveyed by HTC LP and HTD LP pursuant to
Section 2.11(a). In accepting the 1999-A Residual Value Insurance Certificates,
the 1999-A Owner Trustee hereby releases all claims to the residual value
insurance proceeds allocated to the UTI Sub-Trust or any other Sub-Trust and, in
the event that such release is not given effect, to fully subordinate all claims
it may be deemed to have against such residual value insurance proceeds
allocated thereto.
(d) TITLE TO TRUST PROPERTY. Legal title to the 1999-A Residual Value
Insurance Certificates and the 1999-A Residual Value Insurance Proceeds
represented thereby shall be vested at all times in the 1999-A Securitization
Trust as a separate legal entity and, more specifically, in the 1999-A Residual
Value Insurance Co-Trust as a separate series of the 1999-A Securitization
Trust, except where applicable law in any jurisdiction requires title to any
part of the 1999-A Residual Value Insurance Certificates or the 1999-A Residual
Value Insurance Proceeds represented thereby to be vested in a trustee, in which
case title shall be deemed to be vested in the 1999-A Owner Trustee, a
co-trustee or a separate trustee, as the case may be.
13
ARTICLE THREE
ACCOUNTS; DISTRIBUTIONS; THE RESERVE FUND;
STATEMENTS TO SECURITYHOLDERS
Section 3.01 1999-A NOTE DISTRIBUTION ACCOUNT; 1999-A CERTIFICATE
DISTRIBUTION ACCOUNT; 1999-A RESIDUAL VALUE INSURANCE PROCEEDS ACCOUNT; RESERVE
FUND.
(a) ESTABLISHMENT OF THE 1999-A NOTE DISTRIBUTION ACCOUNT. The 1999-A
Indenture Trustee shall establish and maintain an Eligible Account with and in
the name of the 1999-A Indenture Trustee for the benefit of the Noteholders,
which account shall be designated the "1999-A Note Distribution Account". If for
any reason the 1999-A Note Distribution Account is no longer an Eligible
Account, the Servicer, with the assistance of the 1999-A Indenture Trustee,
shall promptly cause the 1999-A Note Distribution Account to be moved to another
institution or otherwise changed so that the 1999-A Note Distribution Account
becomes an Eligible Account. The 1999-A Owner Trustee hereby grants a security
interest in the 1999-A Note Distribution Account, all Eligible Investments
therein and all proceeds of the foregoing to the 1999-A Indenture Trustee for
the benefit of the Noteholders to secure the obligations of the 1999-A
Securitization Trust under this 1999-A Securitization Trust Agreement to the
1999-A Indenture Trustee on behalf of the Noteholders.
(b) ESTABLISHMENT OF THE 1999-A CERTIFICATE DISTRIBUTION ACCOUNT.
Pursuant to Section 9.02(f) of the 1999-A Servicing Supplement, the Servicer, on
behalf of the 1999-A Owner Trustee, shall establish and maintain an Eligible
Account with and in the name of the 1999-A Owner Trustee for the benefit of the
Certificateholders, which account shall be designated the "1999-A Certificate
Distribution Account". If for any reason the 1999-A Certificate Distribution
Account is no longer an Eligible Account, the Servicer, with the assistance of
the 1999-A Owner Trustee, shall promptly cause the 1999-A Certificate
Distribution Account to be moved to another institution or otherwise changed so
that the 1999-A Certificate Distribution Account becomes an Eligible Account.
(c) ESTABLISHMENT OF THE 1999-A RESIDUAL VALUE INSURANCE PROCEEDS
ACCOUNT. The 1999-A Owner Trustee, on behalf of the 1999-A Residual Value
Insurance Co-Trust, shall establish and maintain an Eligible Account with and in
the name of the 1999-A Owner Trustee for the benefit of the 1999-A Residual
Value Insurance Co-Trust, which account shall be designated the "1999-A Residual
Value Insurance Proceeds Account". If for any reason the 1999-A Residual Value
Insurance Proceeds Account is no longer an Eligible Account, the 1999-A Owner
Trustee, with the assistance of the 1999-A Residual Value Insurance Co-Trust,
shall promptly cause the 1999-A Residual Value Insurance Proceeds Account to be
moved to another institution or otherwise changed so that the 1999-A Residual
Value Insurance Proceeds Account becomes an Eligible Account.
(d) ESTABLISHMENT OF THE RESERVE FUND. Pursuant to Section 3.04, the
1999-A Indenture Trustee shall establish and maintain an Eligible Account with
and in the name of the 1999-A Indenture Trustee for the benefit of the
Noteholders, HTC LP and HTD LP, which account shall be designated the "Reserve
Fund". If for any reason the Reserve Fund is no longer an Eligible Account, the
Servicer, with the assistance of the 1999-A Indenture Trustee, shall promptly
cause
14
the Reserve Fund to be moved to another institution or otherwise changed so that
the Reserve Fund becomes an Eligible Account.
Section 3.02 COLLECTIONS.
(a) Pursuant to Section 13.01(b) of the 1999-A SUBI Supplement and
Section 9.02(h) of the 1999-A Servicing Supplement, on each Deposit Date the
Servicer, acting on behalf of the 1999-A Owner Trustee, shall cause the transfer
of Collections in respect of the 1999-A SUBI Assets (net of amounts that may be
retained by the Servicer pursuant to the 1999-A Securitization Documents) to the
1999-A SUBI Collection Account, and, on each Distribution Date, pursuant to the
instructions of the 1999-A Owner Trustee, shall cause the transfer of funds from
the 1999-A SUBI Collection Account to (i) HTC LP and HTD LP in respect of the
Retained 1999-A SUBI Certificates, (ii) either the 1999-A Note Distribution
Account or the 1999-A Certificate Distribution Account in respect of the Notes
and the Certificates, (iii) the Reserve Fund and (iv) any other recipient
entitled to receive any such funds pursuant to Section 3.03. Such deposits shall
be made in immediately available funds, no later than 3:00 p.m., New York City
time, on the relevant Deposit Date or Distribution Date, as applicable.
(b) The 1999-A Indenture Trustee shall retain, subject to the
provisions of this 1999-A Securitization Trust Agreement and the other 1999-A
Securitization Documents, all collections on or in respect of the 1999-A SUBI
Interest transferred to the 1999-A Indenture Trustee, on behalf of the
Noteholders, in accordance with such provisions, in the 1999-A Note Distribution
Account or the Reserve Fund, as the case may be. The 1999-A Indenture Trustee
shall be deemed to have possession of such monies and collections for purposes
of Section 9-305 of the UCC of the jurisdiction in which such property is
located.
(c) The 1999-A Owner Trustee shall retain, subject to the provisions of
this 1999-A Securitization Trust Agreement and the other 1999-A Securitization
Documents, all collections on or in respect of the 1999-A SUBI Interest
transferred to the 1999-A Owner Trustee, on behalf of the Certificateholders, in
accordance with such provisions, in the 1999-A Certificate Distribution Account.
The 1999-A Owner Trustee shall be deemed to have possession of such monies and
collections for purposes of Section 9-305 of the UCC of the jurisdiction in
which such property is located.
(d) For so long as the relevant depository institution or trust company
meets the requirements of Sections 3.01(a), (b) or (c), as applicable, all
amounts in the 1999-A Note Distribution Account, the 1999-A Certificate
Distribution Account or the Reserve Fund, as applicable, shall, to the extent
permitted by applicable laws, rules and regulations, be invested, as directed by
the Servicer pursuant to Section 9.02(k) of the 1999-A Servicing Supplement, in
Eligible Investments (or, if the Servicer fails to give directions with respect
to the 1999-A Note Distribution Account or the Reserve Fund, as provided in
Section 8.03(c) of the Indenture); otherwise such amounts shall be retained in
(1) Cash or Cash equivalents or (2) a money market fund offered by the
Origination Trustee or an Affiliate of the Origination Trustee, the 1999-A
Indenture Trustee or an Affiliate of the 1999-A Indenture Trustee or the 1999-A
Owner Trustee or an Affiliate of the 1999-A Owner Trustee, in any case which
money market fund meets the requirements of clause (i) of the definition of
Eligible Investments, which investment, whether under clause (1) or clause (2),
matures no later than the Business Day immediately preceding the
15
next succeeding Distribution Date. Earnings on investment of funds in the 1999-A
Note Distribution Account and the 1999-A Certificate Distribution Account shall
be retained in the 1999-A Note Distribution Account and the 1999-A Certificate
Distribution Account, as the case may be, and treated as Interest Collections
and shall constitute part of the 1999-A Securitization Trust Estate. Losses
resulting from investment of funds in the 1999-A Note Distribution Account and
the 1999-A Certificate Distribution Account
shall be charged against the funds
on deposit in the applicable account. Any funds deposited into the 1999-A
Residual Value Insurance Proceeds Account shall not be invested in any
investment other than Cash, as such funds shall be required to be immediately
transferred to HTC LP and HTD LP in accordance with Section 13.06(b) of the
1999-A SUBI Supplement.
Section 3.03 DISTRIBUTIONS.
(a) On each Determination Date, pursuant to Section 9.02(g) of the
1999-A Servicing Supplement, the Servicer shall calculate (i) amounts
distributable to the holders of the Retained 1999-A SUBI Certificates and (ii)
the Class A-1 Distributable Amount, the Class A-2 Distributable Amount, the
Class A-3 Distributable Amount, the Class A-4 Distributable Amount, the Class
A-5 Distributable Amount, the Class B Distributable Amount, the Class C
Distributable Amount, the Certificate Distributable Amount and all other amounts
to be distributed on the related Distribution Date.
(b) On each Determination Date, the Servicer shall deliver to the
1999-A Owner Trustee a Servicer's Certificate that sets forth, among other
things, the amount of Interest Collections and Principal Collections allocable
to the 1999-A SUBI Certificates, the Investor Percentage, the amount of Advances
(including, separately, any Nonrecoverable Advances), if any, to be made by or
reimbursed to the Servicer, the aggregate amount, if any, to be withdrawn from
the Reserve Fund and the 1999-A SUBI Servicing Fee and other servicing
compensation payable to the Servicer with respect to the preceding Collection
Period and related Distribution Date. On or prior to each Determination Date,
the Servicer shall also determine the Reserve Fund Requirement and any amounts
to be distributed from the Reserve Fund to the Noteholders.
(c) INTEREST DISTRIBUTIONS. The right of the Class B Noteholders to
receive distributions of Interest Collections allocable to the 1999-A SUBI
Interest in respect of the Class B Notes shall be and are subordinated to the
rights of the Class A-1 Noteholders, the Class A-2 Noteholders, the Class A-3
Noteholders, the Class A-4 Noteholders and the Class A-5 Noteholders to receive
distributions of Interest Collections allocable to the 1999-A SUBI Interest
in respect of the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes and the Class A-5 Notes, respectively, to the extent
provided in this 1999-A Securitization Trust Agreement and the Indenture. The
right of the Class C Noteholders to receive distributions of Interest
Collections allocable to the 1999-A SUBI Interest in respect of the Class C
Notes shall be and are subordinated to the rights of the Class A-1
Noteholders, the Class A-2 Noteholders, the Class A-3 Noteholders, the Class
A-4 Noteholders, the Class A-5 Noteholders and the Class B Noteholders to
receive distributions of Interest Collections allocable to the 1999-A SUBI
Interest in respect of the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes, the Class A-5 Notes and the Class B Notes,
respectively, to the extent provided in this 1999-A Securitization Trust
Agreement and the Indenture. The right of the Certificateholders to receive
distributions of Interest Collections allocable to the 1999-A SUBI
16
Interest in respect of the Certificates shall be and are subordinated to the
rights of the Class A-1 Noteholders, the Class A-2 Noteholders, the Class A-3
Noteholders, the Class A-4 Noteholders, the Class A-5 Noteholders, the Class
B Noteholders and the Class C Noteholders to receive distributions of
Interest Collections allocable to the 1999-A SUBI Interest in respect of the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4
Notes, the Class A-5 Notes, the Class B Notes and the Class C Notes,
respectively, to the extent provided in this 1999-A Securitization Trust
Agreement and the Indenture. On each Distribution Date, the Servicer shall,
pursuant to the instructions of the 1999-A Owner Trustee, transfer from the
1999-A SUBI Collection Account, and shall, pursuant to the instructions of
the 1999-A Indenture Trustee, transfer from the Reserve Fund, as applicable,
the sum of (A) the product of (i) the Investor Percentage with respect to
Interest Collections, multiplied by (ii) the Interest Collections for the
related Collection Period, (B) under the circumstances set forth in Section
3.03(f), from the Reserve Fund, the Required Amount, if any, for such
Distribution Date, (C) any amount of Principal Collections that otherwise
would be distributed to the Class B Noteholders or the Class C Noteholders
but is required to be applied to the payment of clauses (xi) through (xiii)
to Class A-5 Noteholders as described below in Section 3.03(f) and (D) any
amount of Principal Collections that otherwise would be distributed to the
Class C Noteholders but is required to be applied to the payment of clauses
(xiv), (xvi) and (xviii) to Class B Noteholders as described below in Section
3.03(f), in the following amounts and otherwise in the following order of
priority to the following Persons:
(i) in the event of an Indenture Event of Default as a result
of the 1999-A Indenture Trustee having received written instructions
from holders of Class A Notes representing a majority of the Voting
Interests thereof, voting together as a single Class, or holders of
Class A Notes, Class B Notes and Class C Notes representing a majority
of the Voting Interests thereof, voting together as a single Class, to
sell or dispose of the 1999-A SUBI Interest, to the 1999-A Indenture
Trustee, reimbursement of the Investor Percentage of Capped Indenture
Trustee Administrative Expenses, and to the 1999-A Owner Trustee,
reimbursement of the Investor Percentage of Capped Owner Trustee
Administrative Expenses;
(ii) to the 1999-A Note Distribution Account for the pro rata
payment to each Class of Class A Noteholders, interest at the related
Note Rate on the Class A-1 Note Balance, Class A-2 Note Balance, Class
A-3 Note Balance, Class A-4 Note Balance or Class A-5 Note Balance, as
applicable, as of the immediately preceding Distribution Date (after
giving effect to any reduction in such Note Balance on such immediately
preceding Distribution Date) or, in the case of the first Distribution
Date, on the Initial Class A-1 Note Balance, the Initial Class A-2 Note
Balance, the Initial Class A-3 Note Balance, the Initial Class A-4 Note
Balance or the Initial Class A-5 Note Balance, as applicable, together
with any unpaid Class A-1 Interest Carryover Shortfall, Class A-2
Interest Carryover Shortfall, Class A-3 Interest Carryover Shortfall,
Class A-4 Interest Carryover Shortfall or Class A-5 Interest Carryover
Shortfall, as applicable;
(iii) to the 1999-A Note Distribution Account for payment to
the Class B Noteholders, interest at the Class B Note Rate on the Class
B Note Balance as of the immediately preceding Distribution Date (after
giving effect to any reduction in the Class B Note Balance on such
immediately preceding Distribution Date) or, in the case of
17
the first Distribution Date, on the Initial Class B Note Balance,
together with any unpaid Class B Interest Carryover Shortfall;
(iv) to the 1999-A Note Distribution Account for payment to
the Class C Noteholders, interest at the Class C Note Rate on the Class
C Note Balance as of the immediately preceding Distribution Date (after
giving effect to any reduction in the Class C Note Balance on such
immediately preceding Distribution Date) or, in the case of the first
Distribution Date, on the Initial Class C Note Balance, together with
any unpaid Class C Interest Carryover Shortfall;
(v) to the Servicer, reimbursement of the Investor Percentage
of Capped Contingent and Excess Liability Premiums;
(vi) to the Origination Trustee, reimbursement of the Investor
Percentage of Capped Origination Trust Administrative Expenses;
(vii) in circumstances other than as set forth in clause (i)
above, to the 1999-A Indenture Trustee, reimbursement of the Investor
Percentage of Capped Indenture Trustee Administrative Expenses, and to
the 1999-A Owner Trustee, reimbursement of the Investor Percentage of
Capped Owner Trustee Administrative Expenses;
(viii) to the Servicer, the Investor Percentage of (a) the
1999-A SUBI Servicing Fee and (b) any unpaid 1999-A SUBI Servicing Fees
payable in respect of compensation to the Servicer with respect to one
or more prior Collection Periods;
(ix) to the Reserve Fund, until the amount on deposit therein
equals the Reserve Fund Requirement;
(x) to the 1999-A Certificate Distribution Account for payment
to the Certificateholders, interest at the Certificate Rate on the
Certificate Balance as of the immediately preceding Distribution Date
(after giving effect to any reduction in the Certificate Balance on
such immediately preceding Distribution Date) or, in the case of the
first Distribution Date, on the Initial Certificate Balance, together
with any unpaid Certificate Interest Carryover Shortfall;
(xi) to the 1999-A Note Distribution Account for payment to
the Class A Noteholders, (a) so long as the Class B Note Balance has
not been reduced to zero, an amount equal to the Covered Loss Amount
for the related Distribution Date sequentially, commencing with the
Class A-1 Noteholders until the Note Balance of each such Class has
been reduced to zero, or (b) if the Class B Note Balance has been
reduced to zero, pro rata, based on the Class X-0, Xxxxx X-0, Class
A-3, Class A-4 or Class A-5 Allocation Percentage, as applicable, an
amount equal to the sum of the Covered Loss Amount and the Uncovered
Loss Amount for the related Distribution Date;
(xii) to the 1999-A Note Distribution Account for payment to
each Class of Class A Noteholders, pro rata, based upon the Class X-0,
Xxxxx X-0, Class A-3, Class A-4 and Class A-5 Note Principal Loss
Amount allocable to each such Class, in each case, in
18
an amount not to exceed the amount of Note Principal Loss Amount
allocable to such Class of Class A Notes;
(xiii) to the 1999-A Note Distribution Account for payment to
each Class of Class A Noteholders, accrued and unpaid interest at the
related Note Rate on any unreimbursed Class X-0, Xxxxx X-0, Class A-3,
Class A-4 or Class A-5 Note Principal Loss Amount, as applicable;
(xiv) to the 1999-A Note Distribution Account for payment to
the Class B Noteholders, (a) if the Class C Note Balance has been
reduced to zero, an amount equal to the Uncovered Loss Amount for the
related Distribution Date plus (b) following the reduction of the Class
A Note Balance to zero, the Covered Loss Amount for the related
Distribution Date, until the Class B Note Balance is reduced to zero;
(xv) to the 1999-A Note Distribution Account for payment to
the Class C Noteholders, (a) if the Certificate Balance has been
reduced to zero, an amount equal to the Uncovered Loss Amount for the
related Distribution Date plus (b) following the reduction of the Class
B Note Balance to zero, the Covered Loss Amount for the related
Distribution Date, until the Class C Note Balance is reduced to zero;
(xvi) to the 1999-A Note Distribution Account for payment to
the Class B Noteholders, the Class B Note Principal Loss Amount as of
the close of business on the immediately preceding Distribution Date,
together with any Class B Note Principal Carryover Shortfall;
(xvii) to the 1999-A Note Distribution Account for payment to
the Class C Noteholders, the Class C Note Principal Loss Amount as of
the close of business on the immediately preceding Distribution Date,
together with any Class C Note Principal Carryover Shortfall;
(xviii) to the 1999-A Note Distribution Account for payment to
the Class B Noteholders, accrued and unpaid interest at the Class B
Note Rate on any unreimbursed Class B Note Principal Loss Amount and
any unreimbursed Class B Note Principal Carryover Shortfall;
(xix) to the 1999-A Note Distribution Account for payment to
the Class C Noteholders, accrued and unpaid interest at the Class C
Note Rate on any unreimbursed Class C Note Principal Loss Amount and
any unreimbursed Class C Note Principal Carryover Shortfall;
(xx) to the 1999-A Certificate Distribution Account for
payment to the Certificateholders, (a) an amount equal to the Uncovered
Loss Amount for the related Distribution Date plus (b) following the
reduction of the Class C Note Balance to zero, the Covered Loss Amount
for the related Distribution Date, until the Certificate Balance is
reduced to zero;
19
(xxi) to the 1999-A Certificate Distribution Account for
payment to the Certificateholders, the Certificate Principal Loss
Amount as of the close of business on the immediately preceding
Distribution Date;
(xxii) to the 1999-A Certificate Distribution Account for
payment to the Certificateholders, accrued and unpaid interest at the
Certificate Rate on any unreimbursed Certificate Principal Loss Amount;
and
(xxiii) to the 1999-A Indenture Trustee, the 1999-A Owner
Trustee and the Origination Trustee, as applicable, the Investor
Percentage of all Uncapped Administrative Expenses.
(d) EXCESS INTEREST COLLECTIONS. On each Distribution Date, the
Servicer, on behalf of the 1999-A Owner Trustee, shall distribute the entire
amount of Excess Interest Collections to HTC LP and HTD LP based upon their
respective percentage ownership of the Retained 1999-A SUBI Interest; PROVIDED,
HOWEVER, in the event the ERISA Compliance Test, if applicable, is not met on
any Distribution Date, all Excess Interest Collections shall be deposited into
the Reserve Fund. Upon any such distributions to HTC LP and HTD LP of Excess
Interest Collections, neither the Noteholders nor the Certificateholders will
have any rights in or claims to such amounts.
(e) PRINCIPAL DISTRIBUTIONS. On each Distribution Date beginning with
the first Distribution Date and ending on the Distribution Date before the
Distribution Date on which the Class A-4 Notes have been paid in full, the
Servicer, pursuant to the instructions of the 1999-A Owner Trustee, shall
distribute from the 1999-A SUBI Collection Account an amount equal to the
Investor Percentage of all Principal Collections collected or received in
respect of the related Collection Period allocable to the 1999-A SUBI Interest
to (i) the 1999-A Note Distribution Account for payment to the Class A-1
Noteholders until the Class A-1 Notes have been paid in full, (ii) the 1999-A
Note Distribution Account for payment to the Class A-2 Noteholders until the
Class A-2 Notes have been paid in full, (iii) the 1999-A Note Distribution
Account for payment to the Class A-3 Noteholders until the Class A-3 Notes have
been paid in full, (iv) the 1999-A Note Distribution Account for payment to the
Class A-4 Noteholders until the Class A-4 Notes have been paid in full and (v)
the 1999-A Note Distribution Account for payment of the Class A Percentage, the
Class B Percentage and the Class C Percentage of any remaining Principal
Collections to the Class A-5 Noteholders, Class B Noteholders and Class C
Noteholders, respectively. On each Distribution Date from and after the Class
A-4 Notes have been paid in full, the Servicer, pursuant to the instructions of
the 1999-A Owner Trustee, shall distribute (i) to the 1999-A Note Distribution
Account for payment to the Class A-5 Noteholders, the Class A Percentage of
Principal Collections collected or received in respect of the related Collection
Period allocable to the 1999-A SUBI Interest, (ii) subject to subsection (f)
below, to the 1999-A Note Distribution Account for payment to the Class B
Noteholders, the Class B Percentage of such Principal Collections and (iii)
subject to subsection (f) below, to the 1999-A Note Distribution Account for
payment to the Class C Noteholders, the Class C Percentage of such Principal
Collections. On each Distribution Date after the Class C Notes have been paid in
full, the Servicer, pursuant to the instructions of the 1999-A Owner Trustee,
shall distribute to the 1999-A Certificate Distribution Account for payment to
the Certificateholders the Certificate Percentage of all Principal Collections
collected or received in respect of the related Collection
20
Period allocable to the 1999-A SUBI Interest. Distributions to the 1999-A
Note Distribution Account and the 1999-A Certificate Distribution Account,
and subsequently to the Noteholders and Certificateholders, for payment
pursuant to Sections 3.03(c)(xi), (xii), (xiv) through (xvii), (xx) and (xxi)
shall constitute distributions of principal. The aggregate amount of
principal distributed to any Class of Noteholders or the Certificateholders
shall not exceed the Initial Note Balance or Initial Certificate Balance, as
the case may be, attributable to that Class of Notes or the Certificates, as
applicable. Uncovered Loss Amounts will be allocated (i) first, to the
Certificateholders until the Certificate Balance equals zero, (ii) then, to
the Class C Noteholders until the Class C Note Balance has been reduced to
zero, (iii) then, to the Class B Noteholders until the Class B Note Balance
has been reduced to zero and (iv) then, to the Class A Noteholders, pro rata,
based on the Class X-0, Xxxxx X-0, Class A-3, Class A-4 and Class A-5
Allocation Percentages.
(f) If and to the extent that the Collections available to make
distributions on a Distribution Date are insufficient to make (1) the
distributions pursuant to clauses (i) through (iv) and (xi) through (xix) of
Section 3.03(c), the Required Amount will be withdrawn from the Reserve Fund and
applied towards such shortfall as set forth in Section 3.03(c); (2) the
distributions to the Class A-5 Noteholders pursuant to clauses (xi) through
(xiii) of Section 3.03(c), then amounts otherwise available for distribution to
the Class B Noteholders and Class C Noteholders in respect of principal pursuant
to subsection (e) above will be applied toward such insufficiency; and (3) the
distributions to the Class B Noteholders pursuant to clauses (xiv), (xvi) and
(xviii) of Section 3.03(c), then amounts otherwise available for distribution to
the Class C Noteholders in respect of principal pursuant to subsection (e) above
will be applied toward such insufficiency.
If on any Distribution Date there remain any shortfalls in the amounts required
to be distributed pursuant to clauses (ii), (xi), (xii) or (xiii) of Section
3.03(c) to the Class A-1 Noteholders, the Class A-2 Noteholders, the Class A-3
Noteholders, the Class A-4 Noteholders and the Class A-5 Noteholders, the
amounts available will be distributed pro rata to the Class A-1 Noteholders, the
Class A-2 Noteholders, the Class A-3 Noteholders, the Class A-4 Noteholders and
the Class A-5 Noteholders based on the Class A-1 Allocation Percentage, the
Class A-2 Allocation Percentage, the Class A-3 Allocation Percentage, the Class
A-4 Allocation Percentage and the Class A-5 Allocation Percentage, respectively.
Notwithstanding the foregoing, if, on any Distribution Date from and after the
Distribution Date on which the Class A-4 Notes have been paid in full, there
remains any Class A-5 Aggregate Loss Amount, the Class B Principal Distributable
Amount for such date shall be reduced by such Class A-5 Aggregate Loss Amount
and such amounts shall instead be distributed to the Class A-5 Noteholders as
set forth in clauses (xi), (xii) and (xiii) of Section 3.03(c).
If on any Distribution Date there remain any shortfalls in the amounts required
to be distributed pursuant to clauses (iii), (xiv), (xvi) or (xviii) of Section
3.03(c) to the Class B Noteholders, the amounts available will be distributed
pro rata to the Class B Noteholders. Notwithstanding the foregoing, if, on any
Distribution Date from and after the Distribution Date on which the Class A-4
Notes have been paid in full, there remains any Class B Aggregate Loss Amount,
the Class C Principal Distributable Amount for such date shall be reduced by
such Class B Aggregate Loss Amount and such amounts shall instead be distributed
to the Class B Noteholders pursuant to clauses (xiv), (xvi) and (xviii) of
Section 3.03(c).
21
(g) PAYMENTS TO SERVICER, 1999-A OWNER TRUSTEE, 1999-A INDENTURE
TRUSTEE AND ORIGINATION TRUSTEE. On each Distribution Date, based upon the
Servicer's Certificate, the 1999-A Owner Trustee shall pay to the Servicer the
amounts allocated pursuant to clauses (v) and (viii) of Section 3.03(c) above.
On each Distribution Date, based upon the Servicer's Certificate, the 1999-A
Owner Trustee shall pay to the Origination Trustee the amounts allocated
pursuant to clauses (vi) and (xxiii) of Section 3.03(c) above. On each
Distribution Date, based upon the Servicer's Certificate, the 1999-A Owner
Trustee shall pay to the 1999-A Indenture Trustee the amounts allocated pursuant
to clauses (vii) and (xxiii) of Section 3.03(c) above. On each Distribution
Date, the 1999-A Owner Trustee will be entitled to withdraw from the 1999-A SUBI
Collection Account for its own benefit and use, the amounts allocated pursuant
to clauses (vii) and (xxiii) of Section 3.03(c) above. However, if the Servicer
previously has made Advances in respect of any such amounts allocated pursuant
to clauses (vi), (vii) or (xxiii) of Section 3.03(c) above, the 1999-A Owner
Trustee shall instead pay the amounts allocable to clauses (vi), (vii) or
(xxiii) of Section 3.03(c) above, as applicable, to the Servicer up to the
amount of such Advances not previously reimbursed.
Notwithstanding the foregoing, in accordance with the provisions of
Section 2.06(f) of the Servicing Agreement and Section 9.02(b)(ii) of the 1999-A
Servicing Supplement, for so long as AHFC is the Servicer and each Monthly
Remittance Condition is satisfied, the Servicer will be entitled to make
deposits of Collections into the 1999-A SUBI Collection Account net of amounts
payable or reimbursable to the Servicer as compensation, in respect of Advances
or otherwise (including for amounts advanced by the Servicer for amounts
otherwise payable to the 1999-A Owner Trustee, the 1999-A Indenture Trustee, the
Origination Trustee or the Trust Agent), and net of amounts payable or
reimbursable (and actually so paid or reimbursed directly by the Servicer) in
respect of the Origination Trust. To the extent the Servicer makes deposits net
of any such amounts, the Servicer will cause each relevant Servicer's
Certificate to correctly and accurately account for such amounts in providing
all information with respect to allocations, applications and payments to be
made pursuant to this Section 3.03 of this 1999-A Securitization Trust Agreement
on the same basis as though such amounts were in fact deposited into the 1999-A
SUBI Collection Account. Moreover, the Servicer will, in each relevant
Servicer's Certificate, instruct the 1999-A Owner Trustee not to make any
distribution to the Servicer, the 1999-A Owner Trustee, the 1999-A Indenture
Trustee or the Origination Trustee to the extent that the Servicer has made any
deposit net of a corresponding amount. The 1999-A Owner Trustee will have no
obligation with respect to or liability for following any such instruction by
the Servicer.
(h) On the Final Scheduled Distribution Date of any Class of Notes or
the Certificates, an additional payment to the Noteholders of such Class or the
Certificateholders of such Class, as the case may be, shall be made as and to
the extent required by Section 3.04(e) and (g).
Section 3.04 THE RESERVE FUND.
(a) ESTABLISHMENT OF THE RESERVE FUND.
(i) In order to assure that sufficient amounts to make
required distributions to Noteholders will be available, the 1999-A
Indenture Trustee shall establish and maintain with and in the name of
the 1999-A Indenture Trustee an Eligible Account to be known
22
as the "Reserve Fund", which will include the money and other property
deposited and held therein pursuant to Section 3.03 and this Section
3.04. Funds in the Reserve Fund shall be the property of the 1999-A
Securitization Trust and, to the extent provided herein, of HTC LP and
HTD LP. If for any reason the Reserve Fund is no longer an Eligible
Account, the Servicer shall, with the assistance of the 1999-A
Indenture Trustee, promptly cause the Reserve Fund to be moved to
another institution or otherwise changed so that the Reserve Fund
becomes an Eligible Account. The 1999-A Indenture Trustee shall retain,
subject to the provisions of this 1999-A Securitization Trust Agreement
and the other 1999-A Securitization Documents, all collections on or in
respect of the 1999-A SUBI Interest transferred from the 1999-A SUBI
Collection Account to the 1999-A Indenture Trustee, on behalf of the
Noteholders, in accordance with such provisions, in the 1999-A Note
Distribution Account or the Reserve Fund, as the case may be. The
1999-A Indenture Trustee shall be deemed to have possession of such
monies and collections for purposes of Section 9-305 of the UCC of the
jurisdiction in which such property is located.
(ii) On each Distribution Date, the Servicer, pursuant to
the instructions of the 1999-A Owner Trustee, shall withdraw from
the 1999-A SUBI Collection Account and deposit into the Reserve Fund
the amount allocated pursuant to clause (ix) of Section 3.03(c). All
deposits and withdrawals from the Reserve Fund shall be made only
upon the terms and conditions of the 1999-A Securitization Documents.
(iii) On each Distribution Date, the 1999-A Indenture Trustee
shall distribute to HTC LP and HTD LP, to the extent thereof, (A) any
net investment income from investment of funds in the Reserve Fund and
(B) any amounts in excess of the Reserve Fund Requirement on such date.
(iv) For so long as the Reserve Fund is an Eligible Account,
all amounts held in the Reserve Fund shall, to the extent permitted by
applicable laws, rules and regulations, be invested by the 1999-A
Indenture Trustee, as directed in writing by the Servicer pursuant to
Section 9.02(k) of the 1999-A Servicing Supplement, in Eligible
Investments (or, if the Servicer fails to give such directions, as
provided in Section 8.03(c) of the Indenture); otherwise, such amounts
shall be maintained in (1) Cash or Cash equivalents or (2) a money
market fund offered by the Origination Trustee or an Affiliate of the
Origination Trustee, the 1999-A Indenture Trustee or an Affiliate of
the 1999-A Indenture Trustee or the 1999-A Owner Trustee or an
Affiliate of the 1999-A Owner Trustee, in any case which money market
fund meets the requirements of clause (i) of the definition of Eligible
Investments, which investment, whether under clause (1) or clause (2),
matures no later than the Business Day immediately preceding the next
succeeding Distribution Date. Earnings on investment of funds in the
Reserve Fund shall be paid to HTC LP and HTD LP on each Distribution
Date, and any losses and any investment expenses shall be charged
against the funds on deposit therein. Neither the Servicer nor the
1999-A Indenture Trustee shall incur any liability for the selection of
investments or for losses thereon absent its own negligence or willful
misfeasance. The 1999-A Indenture Trustee shall have no liability in
respect of losses incurred as a result of the liquidation of any
investment prior to its stated maturity date or the failure of the
Servicer to provide timely written investment directions.
23
(b) INITIAL DEPOSIT; DISTRIBUTIONS. On or prior to the Closing Date,
the 1999-A Securitization Trust shall deposit or cause to be deposited
$115,274,540.12 into the Reserve Fund, constituting the Reserve Fund Initial
Deposit. Amounts on deposit in the Reserve Fund shall be supplemented from time
to time by the deposit therein of other funds as and to the extent described in
this 1999-A Securitization Trust Agreement and the other 1999-A Securitization
Documents. On each Distribution Date, the amounts on deposit in the Reserve Fund
shall be available for distribution as provided in Section 3.03 and, on each
Distribution Date, if the amount on deposit in the Reserve Fund (after giving
effect to all deposits thereto or withdrawals therefrom on such Distribution
Date) is greater than the Reserve Fund Requirement and Excess Interest
Collections are not required to be deposited into the Reserve Fund pursuant to
Section 3.03(d), the 1999-A Indenture Trustee will distribute any remaining
amounts to HTC LP and HTD LP based upon their respective percentage ownership of
the Retained 1999-A SUBI Interest. Upon such distribution to HTC LP and HTD LP,
neither the Noteholders nor the Certificateholders will have any further rights
in or claims to such amounts.
(c) RESERVE FUND REQUIREMENT. The amount required to be held in the
Reserve Fund is equal to the lesser of (i) $181,145,705.90 and (ii) the Note
Balance; PROVIDED, HOWEVER, that, if on any Determination Date, any of the
Charge-off Rate Test, the Delinquency Rate Test or the Residual Value Test are
not satisfied, then the Reserve Fund Requirement will be equal to the lesser of
(i) $214,081,288.79 and (ii) the Note Balance as of such Determination Date.
(d) CLAIMS. Amounts properly received by either HTC LP or HTD LP
pursuant to this 1999-A Securitization Trust Agreement shall be free of any
claim of the 1999-A Securitization Trust, the 1999-A Indenture Trustee, the
1999-A Owner Trustee, the Noteholders or the Certificateholders and shall not be
available to the 1999-A Indenture Trustee, the 1999-A Owner Trustee or the
1999-A Securitization Trust for the purpose of making deposits to the Reserve
Fund or making payments to the Noteholders or Certificateholders, nor shall
either HTC LP or HTD LP be required to refund any amount properly received by
it.
(e) RESERVE FUND SECURITIES INTERMEDIARY. The 1999-A Indenture Trustee
hereby confirms that (i) the 1999-A Indenture Trustee is acting, with respect to
its duties under this Section 3.04, as a "securities intermediary" as defined in
Section 8-102 of the UCC (in such capacity, the "Reserve Fund Securities
Intermediary"), (ii) the Reserve Fund Securities Intermediary has established
the Reserve Fund as a "securities account" as such term is defined in Section
8-501(a) of the UCC, (iii) the Reserve Fund Securities Intermediary shall,
subject to the terms of this 1999-A Securitization Trust Agreement, treat the
1999-A Indenture Trustee as entitled to exercise the rights that comprise any
financial asset credited to the Reserve Fund, and (iv) all property received by
the Reserve Fund Securities Intermediary for the account of the 1999-A Indenture
Trustee, or with respect to financial assets credited to the securities account,
will be promptly credited to the securities account, and (v) all securities or
other financial assets credited to the securities account shall be maintained by
and in the name of the Reserve Fund Securities Intermediary by endorsement to
the Reserve Fund Securities Intermediary or in blank or credit to a securities
account maintained in the name of the Reserve Fund Securities Intermediary for
the benefit of 1999-A Indenture Trustee and in no case will any financial asset
credited to the Reserve Fund be registered in the name of any other person,
payable to the order of any other person, or specially endorsed to any other
person, except to the extent the foregoing have been specially endorsed by HTC
LP and/or HTD LP to the 1999-A Indenture Trustee.
24
Neither the Servicer nor the 1999-A Indenture Trustee shall incur any liability
relating to any investments made pursuant to this Section 3.04 absent its own
negligence or willful misfeasance.
(f) FINAL SCHEDULED DISTRIBUTION DATE. On the respective Final
Scheduled Distribution Date, to the extent that the Class A-1 Note Balance, the
Class A-2 Note Balance, the Class A-3 Note Balance, the Class A-4 Note Balance,
the Class A-5 Note Balance, the Class B Note Balance or the Class C Note Balance
has not been reduced to zero, the 1999-A Indenture Trustee shall withdraw funds
from the Reserve Fund, if available, in an amount equal to the lesser of (i) the
Class A-1 Note Balance, the Class A-2 Note Balance, the Class A-3 Note Balance,
the Class A-4 Note Balance, the Class A-5 Note Balance, the Class B Note Balance
or the Class C Note Balance, plus, in each case, any Note Principal Loss Amounts
allocable to such Class, as applicable, and (ii) the amount in the Reserve Fund,
and shall pay such funds to the Noteholders of such Classes of Notes.
(g) FINANCIAL ASSETS ELECTION. The 1999-A Indenture Trustee hereby
agrees that all property (whether investment property, security, instrument,
cash or otherwise) credited to the Reserve Fund shall be treated as a "financial
asset" within the meaning of Section 8-102(a)(9) of the UCC.
(h) ENTITLEMENT ORDERS. If at any time the Reserve Fund Securities
Intermediary shall receive an "entitlement order" (within the meaning of Section
8-102(a)(8) of the UCC) issued by the 1999-A Indenture Trustee and relating to
the Reserve Fund, the Reserve Fund Securities Intermediary shall comply with
such entitlement order without further consent by any other person. The 1999-A
Indenture Trustee hereby agrees only to issue entitlement orders at the written
direction of the Servicer. The Reserve Fund Securities Intermediary shall have
no obligation to act, and shall be fully protected in refraining from acting, in
respect of the financial assets credited to the Reserve Fund in the absence of
such an entitlement order.
(i) SUBORDINATION OF LIEN; WAIVER OF SET-OFF. The Reserve Fund
Securities Intermediary hereby waives any right of deduction, set off, bankers
lien or any security interest on or in the securities account or any financial
assets credited to the securities account.
(j) CHOICE OF LAW. Both this Section 3.04 and the securities account
shall be governed by the laws of the State of New York (regardless of its
conflict of law provisions). Regardless of any provision in any other agreement,
for the purposes of the UCC New York shall be deemed to be the Reserve Fund
Securities Intermediary's jurisdiction.
(k) CONFLICTING ORDERS. The 1999-A Indenture Trustee, in such capacity,
has not entered into and, until termination of this 1999-A Securitization Trust
Agreement, will not enter into any agreement with any other person relating to
the Reserve Fund or any financial assets credited thereto pursuant to which it
has agreed or will agree to comply with entitlement orders (as defined in
Section 8-102(a)(8) of the UCC) of such person. No financial asset will be
registered in the name of the 1999-A Indenture Trustee, in such capacity,
payable to its order or specially endorsed to it, except to the extent such
financial asset has been endorsed to the Reserve Fund Securities Intermediary or
in blank.
25
(l) PAYMENTS ON FINAL SCHEDULED DISTRIBUTION DATES AND FOLLOWING
TERMINATION OF TRUST. On each related Final Scheduled Distribution Date and upon
termination of the 1999-A Securitization Trust pursuant to Section 7.01, all
amounts on deposit in the Reserve Fund shall be available (i) for payment of any
remaining amounts due on such date to reimburse unreimbursed Advances or pay
accrued and unpaid compensation payable to the Servicer through such date, (ii)
for payment to the Noteholders, and (iii) for payment of any remaining amounts
due to the 1999-A Owner Trustee, the 1999-A Indenture Trustee or the Origination
Trustee. Upon termination of the 1999-A Securitization Trust pursuant to Section
7.01, after payment of such amounts due, any amounts remaining on deposit in the
Reserve Fund shall be paid to HTC LP and HTD LP. Upon termination of the 1999-A
Securitization Trust, the 1999-A Indenture Trustee shall release from the lien
of this 1999-A Securitization Trust Agreement the Reserve Fund and any financial
assets held therein, and shall execute any requisite filing under the UCC as
provided by HTC LP and HTD LP to evidence such release and the release of any
security interest of the 1999-A Securitization Trust or the 1999-A Indenture
Trustee therein.
(m) The Reserve Fund Securities Intermediary undertakes to perform such
duties and only such duties as are specifically set forth in this Section 3.04.
The Reserve Fund Securities Intermediary, in such capacity, shall not have any
duties or responsibilities except those expressly set forth in this Section 3.04
or be a trustee for or have any fiduciary obligation to any party hereto.
(n) The duties and obligations of the Reserve Fund Securities
Intermediary, in such capacity, shall be determined solely by the express
provisions of this Section 3.04, and the Reserve Fund Securities Intermediary
shall take such action with respect to this Section 3.04 as it shall be directed
hereunder. The Reserve Fund Securities Intermediary, in such capacity, shall not
be liable except for the performance of such duties and obligations as are
specifically set forth in this Section 3.04 and as specifically directed by the
1999-A Indenture Trustee, and no implied covenants or obligations shall be read
into this Section 3.04 against the Reserve Fund Securities Intermediary, the
permissive right of the Reserve Fund Securities Intermediary to do things
enumerated in this Section 3.04 shall not be construed as a duty, and, in the
absence of bad faith, negligence or willful misfeasance on the part of the
Reserve Fund Securities Intermediary, the Reserve Fund Securities Intermediary
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
the Reserve Fund Securities Intermediary conforming to the requirements of this
Section 3.04.
(o) The Reserve Fund Securities Intermediary, in such capacity, shall
not be liable for any error of judgment made in good faith by an officer or
officers of the Reserve Fund Securities Intermediary, acting as such, unless it
shall be determined that the Reserve Fund Securities Intermediary, or any such
officer or officers, was negligent in ascertaining the pertinent facts or
otherwise acted with negligence or willful misfeasance, and the Reserve Fund
Securities Intermediary shall not be liable with respect to any action taken or
omitted to be taken by it in good faith absent negligence or willful misfeasance
in accordance with any direction of the 1999-A Indenture Trustee given under
this 1999-A Securitization Trust Agreement.
26
(p) None of the provisions of this 1999-A Securitization Trust
Agreement shall require the Reserve Fund Securities Intermediary to expend or
risk its own funds or otherwise to incur any liability, financial or otherwise,
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that it
is not assured of repayment of such funds or indemnity satisfactory to it
against such risk or liability.
(q) The Reserve Fund Securities Intermediary may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval or other paper or document in good faith
believed by it to be genuine and to have been signed or presented by the proper
party or parties.
(r) Whenever, in the administration of the provisions of this Section
3.04, the Reserve Fund Securities Intermediary shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering
any action to be taken hereunder, the Reserve Fund Securities Intermediary shall
be entitled to receive from each of HTC LP and HTD LP an Officer's Certificate
stating that the matter is established as fact and such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence, willful misfeasance or bad faith on the part of the
Reserve Fund Securities Intermediary, be deemed to be conclusively proved and
established, and such certificate, in the absence of negligence or willful
misfeasance on the part of the Reserve Fund Securities Intermediary, shall be
full warrant to the Reserve Fund Securities Intermediary for any action taken,
suffered or omitted by it under the provisions of this Section 3.04 on the basis
thereof.
(s) The Reserve Fund Securities Intermediary may consult with counsel
and the advice or any opinion of counsel shall be full and complete
authorization and protection in respect of any action taken or omitted by it
hereunder in good faith absent negligence or willful misfeasance and in
accordance with such advice or opinion of counsel.
(t) The Reserve Fund Securities Intermediary shall not be bound to make
any investigation into the facts or matters stated in any resolution, order,
certificate, statement, instrument, opinion, report, notice, request, consent,
entitlement order, approval or other paper or document.
(u) The Reserve Fund Securities Intermediary shall have no obligation
to invest or reinvest any cash held in the Reserve Fund in the absence of timely
and specific written investment direction from the Servicer. In no event shall
the Reserve Fund Securities Intermediary be liable for the selection of
investments or for investment losses incurred as a result of the liquidation of
any investment prior to its stated maturity or the failure of the Servicer to
provide timely written investment direction.
(v) The Reserve Fund Securities Intermediary may at any time resign by
giving 30 days prior written notice of resignation to the 1999-A Indenture
Trustee, HTC LP and HTD LP. Upon receiving such notice of resignation, the
1999-A Indenture Trustee shall promptly appoint a successor and, upon the
acceptance by the successor of such appointment, release the resigning Reserve
Fund Securities Intermediary from its obligations hereunder by written
instrument, a
27
copy of which instrument shall be delivered to each of the 1999-A Indenture
Trustee, the resigning Reserve Fund Securities Intermediary and the successor.
If no successor shall have been so appointed and have accepted appointment
within 45 days after the giving of such notice of resignation, the resigning
Reserve Fund Securities Intermediary may petition any court of competent
jurisdiction for the appointment of a successor.
(w) Each of the parties (for itself and any person or entity claiming
through it) hereby releases, waives, discharges, exculpates and covenants not to
xxx the Reserve Fund Securities Intermediary for any action taken or omitted
under this Section 3.04 except to the extent caused by the Reserve Fund
Securities Intermediary's negligence, willful misfeasance or bad faith. Anything
in this 1999-A Securitization Trust Agreement to the contrary notwithstanding,
in no event shall the Reserve Fund Securities Intermediary be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including lost profits), even if the Reserve Fund Securities Intermediary has
been advised of the likelihood of such loss or damage (unless so advised prior
to taking any such action) and regardless of the form of action.
(x) The Servicer, in its capacity as such, shall indemnify, defend and
hold harmless the Reserve Fund Securities Intermediary and its officers,
directors, employees, representatives and agents, from and against, and
reimburse the Reserve Fund Securities Intermediary for, any and all claims,
expenses, obligations, liabilities, losses, damages, injuries (to person,
property or natural resources), penalties, stamp or other similar taxes,
actions, suits, judgments, reasonable costs and expenses (including reasonable
attorneys' and agents' fees and expenses) directly or indirectly relating to or
arising from claims against the Reserve Fund Securities Intermediary by reason
of its participation in the transactions contemplated by this Section 3.04,
except to the extent caused by the Reserve Fund Securities Intermediary's
negligence, willful misfeasance or bad faith. The provisions of this Section
3.04 shall survive the termination of this 1999-A Securitization Trust Agreement
or the earlier resignation or removal of the Reserve Fund Securities
Intermediary.
Section 3.05 STATEMENTS TO SECURITYHOLDERS.
(a) On each Determination Date, commencing in September 1999, the
Servicer will prepare and forward to the Origination Trustee, the 1999-A Owner
Trustee and the 1999-A Indenture Trustee, and the 1999-A Indenture Trustee will
make available to each Noteholder and the 1999-A Owner Trustee will make
available to each Certificateholder on each Distribution Date, a statement
setting forth, as applicable, with respect to the related Distribution Date or
the related Collection Period, among other things, the following:
(i) the Investor Percentage for such Collection Period, stated
separately for (x) Interest Collections and Loss Amounts, and (y)
Principal Collections;
(ii) the total amount being distributed to Noteholders and to
Certificateholders in such distribution;
(iii) the total amount being distributed to each Class of
Noteholders in such distribution;
28
(iv) the total amount of interest being distributed to each
Class of Noteholders and the Certificateholders in such distribution;
(v) the total amount of principal being distributed to each
Class of Noteholders and the Certificateholders in such distribution;
(vi) the amount, if any, of Class A-1 Interest Carryover
Shortfall, Class A-2 Interest Carryover Shortfall, Class A-3 Interest
Carryover Shortfall, Class A-4 Interest Carryover Shortfall, Class A-5
Interest Carryover Shortfall, Class B Interest Carryover Shortfall,
Class C Interest Carryover Shortfall and Certificate Interest Carryover
Shortfall included in such distribution;
(vii) the amount, if any, of the remaining unpaid Class A-1
Interest Carryover Shortfall, Class A-2 Interest Carryover Shortfall,
Class A-3 Interest Carryover Shortfall, Class A-4 Interest Carryover
Shortfall, Class A-5 Interest Carryover Shortfall, Class B Interest
Carryover Shortfall, Class C Interest Carryover Shortfall and
Certificate Interest Carryover Shortfall after giving effect to such
distribution;
(viii) the Class A-1 Allocation Percentage, the Class A-2
Allocation Percentage, the Class A-3 Allocation Percentage, the Class
A-4 Allocation Percentage, the Class A-5 Allocation Percentage, the
Class B Percentage, the Class C Percentage, the Certificate Percentage
and the amount, if any, of the reimbursement of Loss Amounts included
in such distribution and the amount thereof allocated to each Class of
Notes;
(ix) the amount, if any, of the reimbursement of Class A-1
Note Principal Loss Amounts, Class A-2 Note Principal Loss Amounts,
Class A-3 Note Principal Loss Amounts, Class A-4 Note Principal Loss
Amounts, Class A-5 Note Principal Loss Amounts, Class B Note Principal
Loss Amounts, Class C Note Principal Loss Amounts and Certificate
Principal Loss Amounts included in such distribution;
(x) the amount, if any, of the aggregate of unreimbursed Class
A-1 Note Principal Loss Amounts, Class A-2 Note Principal Loss Amounts,
Class A-3 Note Principal Loss Amounts, Class A-4 Note Principal Loss
Amounts, Class A-5 Note Principal Loss Amounts, Class B Note Principal
Loss Amounts, Class C Note Principal Loss Amounts and Certificate
Principal Loss Amounts after giving effect to such distribution;
(xi) the amount, if any, of accrued Class A-1 Note Principal
Loss Interest Amounts, Class A-2 Note Principal Loss Interest Amounts,
Class A-3 Note Principal Loss Interest Amounts, Class A-4 Note
Principal Loss Interest Amounts, Class A-5 Note Principal Loss Interest
Amounts, Class B Note Principal Loss Interest Amounts, Class C Note
Principal Loss Interest Amounts and Certificate Principal Loss Interest
Amounts included in such distribution;
(xii) the amount, if any, of accrued and unpaid Class A-1 Note
Principal Loss Interest Amounts, Class A-2 Note Principal Loss Interest
Amounts, Class A-3 Note Principal Loss Interest Amounts, Class A-4 Note
Principal Loss Interest Amounts, Class A-5 Note Principal Loss Interest
Amounts, Class B Note Principal Loss Interest
29
Amounts, Class C Note Principal Loss Interest Amounts and Certificate
Principal Loss Interest Amounts after giving effect to such
distribution;
(xiii) the amount, if any, of accrued and unpaid Class B Note
Principal Carryover Shortfall and Class C Note Principal Carryover
Shortfall after giving effect to such distribution;
(xiv) the Investor Percentage of the 1999-A SUBI Servicing Fee
allocable to the 1999-A SUBI Interest for such Distribution Date and
any unpaid such amounts with respect to prior Distribution Dates;
(xv) the Note Balance, the Class A-1 Note Balance, the Class
A-2 Note Balance, the Class A-3 Note Balance, the Class A-4 Note
Balance, the Class A-5 Note Balance, the Class B Note Balance, the
Class C Note Balance, the Certificate Balance, the Class A-1 Note
Factor, the Class A-2 Note Factor, the Class A-3 Note Factor, the Class
A-4 Note Factor, the Class A-5 Note Factor, the Class B Note Factor,
the Class C Note Factor and the Certificate Factor, each after giving
effect to such distribution;
(xvi) the Required Amount, if any, included in such
distribution;
(xvii) the Aggregate Net Investment Value as of the end of
such Collection Period;
(xviii) the amount on deposit in the Reserve Fund on such
Distribution Date, after giving effect to withdrawals and deposits made
on such Distribution Date, the change in such balance from the
immediately preceding Distribution Date and the Reserve Fund
Requirement;
(xix) the amount of Payments Ahead on deposit in the 1999-A
SUBI Collection Account and representing Monthly Payments due in one
or more subsequent Collection Periods and the change in such balance
from the immediately preceding Distribution Date;
(xx) the amount of Advances made in respect of such Collection
Period, the amount of unreimbursed Advances on such Distribution Date
and the changes in such amount from the immediately preceding
Distribution Date; and
(xxi) the weighted average Lease Rate of the 1999-A Contracts
in the 1999-A SUBI for the immediately preceding Collection Period, and
the Charge-off Rate, Delinquency Rate and information related to the
Residual Value Test for each of the three immediately preceding
Collection Periods.
Any Securityholder may obtain a copy of any such statement, of any Servicer's
Certificate required pursuant to Section 10.01 of the 1999-A Servicing
Supplement, of any annual report of Independent Accountants required pursuant to
Section 3.02 of the Servicing Agreement and Section 10.02 of the 1999-A
Servicing Supplement or of any annual Officer's Certificate required pursuant to
Section 3.03 of the Servicing Agreement and Section 10.03(a) of the 1999-A
Servicing Supplement, upon written request to the 1999-A Indenture Trustee at
the
30
Corporate Trust Office of the 1999-A Indenture Trustee or to the 1999-A Owner
Trustee at the Corporate Trust Office of the 1999-A Owner Trustee, as the case
may be.
(b) Within a reasonable period of time after the end of each calendar
year, but not later than the latest date permitted by law, the 1999-A Indenture
Trustee shall mail to each Person who at any time during such calendar year
shall have been a Noteholder a statement or statements which in the aggregate
contain the sum of the amounts set forth in clauses (ii) through (vii) and (ix)
through (xv) of Section 3.05(a) for such calendar year or, if such Person shall
have been a Noteholder during a portion of such calendar year, for the
applicable portion of such year, for the purposes of such Noteholder's
preparation of federal income tax returns. In addition, the Servicer shall
furnish to the 1999-A Indenture Trustee for distribution to such Person at such
time any other information reasonably necessary under applicable law for the
preparation of such income tax returns.
(c) Within a reasonable period of time after the end of each calendar
year, but not later than the latest date permitted by law, the 1999-A Owner
Trustee shall mail to each Person who at any time during such calendar year
shall have been a Certificateholder a statement or statements which in the
aggregate contain the sum of the amounts set forth in clauses (ii) through (vii)
and (ix) through (xv) of Section 3.05(a) for such calendar year or, if such
Person shall have been a Certificateholder during a portion of such calendar
year, for the applicable portion of such year, for the purposes of such
Certificateholder's preparation of federal income tax returns. In addition, the
Servicer shall furnish to the 1999-A Owner Trustee for distribution to such
Person at such time any other information reasonably necessary under applicable
law for the preparation of such income tax returns.
Section 3.06 AGREEMENT TO TRANSFER RESIDUAL VALUE INSURANCE PROCEEDS.
(a) Each of HTC LP and HTD LP hereby agrees that, immediately upon
receipt of any 1999-A Residual Value Insurance Proceeds or proceeds from any
other residual value insurance policies to the extent such proceeds relate to
the 1999-A Contracts or the 1999-A Leased Vehicles (except for any such 1999-A
Residual Value Insurance Proceeds or other proceeds from other residual value
insurance policies which HTC LP and HTD LP receive from the 1999-A Residual
Value Insurance Co-Trust pursuant to Section 13.06(b) of the 1999-A SUBI
Supplement, which proceeds shall be transferred as set forth in subsections (b)
and (c) of Section 13.06 of the 1999-A SUBI Supplement), transfer such 1999-A
Residual Value Insurance Proceeds to the 1999-A Residual Value Insurance
Proceeds Account for the benefit of the 1999-A Securitization Trust in respect
of the 1999-A Residual Value Insurance Co-Trust.
(b) Each of HTC LP and HTD LP hereby agrees that it shall, immediately
upon receipt of any 1999-A Residual Value Insurance Proceeds from the 1999-A
Securitization Trust in respect of the 1999-A Residual Value Insurance Co-Trust
in connection with the HTC LP/Co-Trust 1999-A Insurance Premium Subordinated
Note, transfer such 1999-A Residual Value Insurance Proceeds to HTA LP and HTB
LP in accordance with the terms of the HTA LP/HTC LP 1999-A Insurance Premium
Subordinated Note and the HTB LP/HTC LP 1999-A Insurance Premium Subordinated
Note.
31
ARTICLE FOUR
CERTIFICATES
Section 4.01 THE CERTIFICATES.
(a) Certificates shall be issued which shall be substantially in the
form of Exhibit A to this 1999-A Securitization Trust Agreement. Two
Certificates shall be issuable, one in the denomination of $212,412,706.11 and
the other in the denomination of $2,145,582.89. The Certificates shall be
executed by the 1999-A Owner Trustee on behalf of the 1999-A Securitization
Trust by manual or facsimile signature of an officer or other signatory of the
1999-A Owner Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when the signatures were affixed, authorized
to sign on behalf of the 1999-A Owner Trustee shall be a valid and binding
obligation of the 1999-A Securitization Trust, notwithstanding that such
individuals or any of them ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of such Certificates. All Certificates shall be dated the date of their
authentication.
(b) No Certificate shall be entitled to any benefit under this 1999-A
Securitization Trust Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication substantially in the
form set forth in Exhibit A to this 1999-A Securitization Trust Agreement,
executed by the 1999-A Owner Trustee or an authentication agent appointed for
such purpose by the 1999-A Owner Trustee, by manual or facsimile signature. Such
certificate of authentication upon any Certificate shall be the sole conclusive
evidence that such Certificate has been duly authenticated and delivered under
this 1999-A Securitization Trust Agreement. The 1999-A Owner Trustee is hereby
authorized to appoint an authentication agent to execute any or all such
certificates of authentication on behalf of the 1999-A Owner Trustee.
Section 4.02 AUTHENTICATION AND DELIVERY OF CERTIFICATES. In exchange
for, and simultaneously with, the sale, assignment and transfer to the 1999-A
Owner Trustee of the 1999-A SUBI Interest (exclusive of all monies and payments
(such as the 1999-A Residual Value Insurance Proceeds) due or payable under the
Residual Value Insurance Policy or other residual value insurance policies
relating to the 1999-A Contracts and 1999-A Leased Vehicles and the right to
receive such amounts), the 1999-A SUBI Certificates and the other assets of the
1999-A Securitization Trust, HTC LP and HTD LP shall receive the Certificates
and the Notes.
Section 4.03 NO TRANSFER OF THE CERTIFICATES. Subject to Section 5.03,
the Certificates shall be owned by HTC LP and HTD LP and may not be sold,
transferred, assigned, conveyed or otherwise disposed of, except as provided by
Section 5.06. To the fullest extent permitted by applicable law, any purported
sale, transfer, assignment, conveyance, or other disposal of the Certificates
shall be null, void and of no effect under this 1999-A Securitization Trust
Agreement.
Section 4.04 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (i)
any mutilated Certificate is surrendered to the 1999-A Owner Trustee or the
1999-A Owner Trustee receives evidence to its satisfaction of the destruction,
loss or theft of a Certificate and (ii) there is delivered to the 1999-A Owner
Trustee such security or indemnity as may be required by the 1999-A Owner
Trustee to save itself and the 1999-A Securitization Trust harmless, then, in
the
32
absence of notice that such Certificate has been acquired by a bona fide
purchaser, the 1999-A Owner Trustee on behalf of the 1999-A Securitization Trust
shall execute and the 1999-A Owner Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and Percentage Interest. In
connection with the issuance of any new Certificate under this Section 4.04, the
1999-A Owner Trustee may require the payment by the Holder of a sum sufficient
to cover any tax or governmental charges that may be imposed in relation
thereto. Any duplicate Certificate issued pursuant to this Section 4.04 shall
constitute complete and indefeasible evidence of ownership in the 1999-A
Securitization Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time, and any such lost, stolen
or destroyed Certificate shall, upon issuance of any such duplicate Certificate,
be null, void and of no effect.
Section 4.05 PERSONS DEEMED OWNERS. The 1999-A Owner Trustee shall
treat both HTC LP and HTD LP as the owners of the Certificates for the purpose
of receiving distributions pursuant to Section 3.03 and for all other purposes
whatsoever.
ARTICLE FIVE
THE TRANSFERORS
Section 5.01 REPRESENTATIONS OF THE TRANSFERORS. Each of HTC LP and HTD
LP hereby makes the following representations on which the 1999-A Owner Trustee
relies in accepting the 1999-A SUBI Interest and the 1999-A SUBI Certificates,
and executing and authenticating the Certificates and on which the 1999-A
Indenture Trustee relies in authenticating the Notes. The representations speak
as of the execution and delivery of this 1999-A Securitization Trust Agreement,
but shall survive the sale, transfer and assignment of the 1999-A SUBI Interest
and the 1999-A SUBI Certificates to the 1999-A Owner Trustee and the pledge
thereof to the 1999-A Indenture Trustee pursuant to the Indenture.
(a) ORGANIZATION AND GOOD STANDING. Each of HTC LP and HTD LP
is a limited partnership validly organized and existing and in good
standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted, and had at all relevant times and has power, authority and
legal right to acquire, own and sell, as applicable, each of the HTC LP
1999-A SUBI Interest, the HTC LP 1999-A SUBI Certificate, the HTD LP
1999-A SUBI Interest and the HTD LP 1999-A SUBI Certificate.
(b) DUE REGISTRATION. Each of HTC LP and HTD LP is duly
registered as a foreign limited partnership in good standing, and has
obtained all necessary licenses and approvals, in all jurisdictions in
which the ownership or lease of property or the conduct of its business
requires such qualifications, except where the failure to so qualify or
to have obtained such licenses and approvals would not have a material
adverse effect on the earnings or business affairs of either HTC LP or
HTD LP.
(c) POWER AND AUTHORITY. Each of HTC LP and HTD LP has the
power and authority to execute and deliver this 1999-A Securitization
Trust Agreement and to carry out its terms; each of HTC LP and HTD LP
has the power and authority to sell and assign
33
the property to be sold and assigned to and deposited with the 1999-A
Owner Trustee as part of the 1999-A Securitization Trust and has duly
authorized such sale and assignment to the 1999-A Owner Trustee by all
necessary partnership action; and the execution, delivery and
performance of this 1999-A Securitization Trust Agreement have been
duly authorized by HTC LP and HTD LP by all necessary partnership
action.
(d) VALID SALE, BINDING OBLIGATIONS. This 1999-A
Securitization Trust Agreement (i) evidences a valid sale, transfer and
assignment of the HTC LP 1999-A SUBI Certificate and the HTC LP 1999-A
SUBI Interest evidenced thereby and the HTD LP 1999-A SUBI Certificate
and the HTD LP 1999-A SUBI Interest evidenced thereby, exclusive of all
monies and payments due or payable under the Residual Value Insurance
Policy or other residual value insurance policies relating to the
1999-A Contracts and 1999-A Leased Vehicles and the right to receive
such amounts, enforceable against creditors of and purchasers from HTC
LP and HTD LP; and (ii) assuming due authorization, execution and
delivery by the other parties hereto, constitutes a legal, valid and
binding obligation of each of HTC LP and HTD LP enforceable in
accordance with its terms, except as enforceability may be subject to
or limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at law.
(e) NO VIOLATION. The execution, delivery and performance by
each of HTC LP and HTD LP of this 1999-A Securitization Trust Agreement
and the consummation of the transactions contemplated by this 1999-A
Securitization Trust Agreement and the fulfillment of the terms of this
1999-A Securitization Trust Agreement do not conflict with, result in
any breach of any of the terms and provisions of, nor constitute (with
or without notice or lapse of time) a default under, the certificate of
limited partnership or limited partnership agreement of either HTC LP
or HTD LP, or conflict with or violate any of the material terms and
provisions of, or constitute (with or without notice or lapse of time)
a default under, any indenture, agreement or other instrument to which
either HTC LP or HTD LP are a party or by which they shall be bound;
nor result in the creation or imposition of any Lien upon any of the
properties of HTC LP or HTD LP pursuant to the terms of any such
indenture, agreement or other instrument (other than this 1999-A
Securitization Trust Agreement); nor violate any law or, to the best of
HTC LP's and HTD LP's knowledge, any order, rule or regulation
applicable to HTC LP or HTD LP, as the case may be, of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over HTC LP or HTD LP,
as the case may be, or their properties; in each case which breach,
default, conflict, lien or violation would have a material adverse
effect on the earnings or business affairs of HTC LP or HTD LP.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best of HTC LP's and HTD LP's knowledge, threatened,
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over HTC LP or HTD LP
or its properties: (i) asserting the invalidity of this 1999-A
Securitization Trust Agreement, the Notes or the Certificates, (ii)
seeking to prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions
34
contemplated by this 1999-A Securitization Trust Agreement, (iii)
seeking any determination or ruling that could reasonably be expected
to materially and adversely affect the performance by HTC LP or HTD LP
of their obligations under, or the validity or enforceability of, this
1999-A Securitization Trust Agreement, the Notes or the Certificates or
(iv) relating to HTC LP or HTD LP that could reasonably be expected to
adversely affect the federal income tax attributes of the Notes.
(g) TITLE TO THE 1999-A SUBI CERTIFICATES. Prior to the
transfer pursuant to this 1999-A Securitization Trust Agreement, each
of HTC LP and HTD LP had good title to, and was the sole legal and
beneficial owner of, the HTC LP 1999-A SUBI Certificate and the HTD LP
1999-A SUBI Certificate, respectively, free and clear of Liens, except
as provided for in the Backup Security Agreement.
Section 5.02 LIABILITY OF THE TRANSFERORS. Each of HTC LP and HTD LP
agrees to be, and shall be, liable without limitation for all debts and
obligations arising with respect to the 1999-A Securitization Trust and the
assets of the 1999-A Securitization Trust.
Section 5.03 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, THE TRANSFERORS; CERTAIN LIMITATIONS.
(a) Any Person (i) into which either HTC LP or HTD LP may be
merged or consolidated, (ii) which may result from any merger,
conversion or consolidation to which either HTC LP or HTD LP shall be a
party or (iii) which may succeed to all or substantially all of the
business of either HTC LP or HTD LP, shall be the successor to HTC LP
or HTD LP under this 1999-A Securitization Trust Agreement without the
execution or filing of any document or any further act on the part of
any of the parties to this 1999-A Securitization Trust Agreement,
except that if either HTC LP or HTD LP, as applicable, in any of the
foregoing cases is not the surviving entity, then the surviving entity
shall execute an agreement of assumption to perform every obligation of
either HTC LP or HTD LP, as applicable, either generally or
specifically as provided herein and shall specifically agree to be
bound to all of the limitations set forth in this Section 5.03. HTC LP
and HTD LP, as the case may be, shall provide notice of any merger,
consolidation or succession pursuant to this Section 5.03 to each
Rating Agency.
(b) (i) Subject to the limitations set forth in Sections
5.03(b)(ii) and 5.03(c), the purpose of each of HTC LP and HTD LP shall
be to engage in any lawful activity for which a limited partnership may
be formed under the laws of the State of Delaware other than the
practice of a profession permitted to be operated through a limited
partnership under laws of the State of Delaware.
(ii) Notwithstanding Section 5.03(b)(i) above, the
purpose of each of HTC LP and HTD LP shall be limited to the
following purposes and activities incidental to and necessary
or convenient to accomplish the following purposes:
(A) to act as settlor or grantor of one or
more securitization trusts formed pursuant to a trust
agreement or other agreement for the purpose of
acquiring interests in the Origination Trust, which
35
securitization trust may issue certificates of
beneficial interest in the assets of such
securitization trust;
(B) to acquire, own, hold, sell, transfer,
convey, dispose of, pledge, assign, borrow money
against, finance, refinance or otherwise deal with,
publicly or privately and whether with unrelated
third parties or with affiliated entities, beneficial
interests in the Origination Trust, including any
undivided trust interests or special units of
beneficial interest created with respect to the
Origination Trust, and certificates of the
securitization trust;
(C) to loan or otherwise invest funds
received as a result of HTC LP's or HTD LP's
beneficial interest in the Origination Trust or
certificates in the securitization trust and any
other income, as determined by the general partner of
HTC LP or HTD LP, as applicable, from time to time;
(D) to borrow money other than pursuant to
clause (C) above, but only to the extent that any
such borrowing is permitted by the terms of the
transactions contemplated by clauses (A) and (B)
above; and
(E) to engage in any lawful act or activity
and to exercise any powers permitted to limited
partnerships organized under Delaware law that are
incidental to and necessary or convenient for the
accomplishment of the foregoing purposes.
(c) Notwithstanding any other provision of this Section 5.03
and any provision of law, neither HTC LP nor HTD LP nor their general
partners, on behalf of HTC LP and HTD LP, shall do any of the
following:
(i) engage in any business or activity other than as
set forth in Section 5.03(b);
(ii) without the affirmative vote of a majority of
the members of the Board of Directors of the manager of the
general partner of HTC LP or HTD LP, as applicable, (which
must include the affirmative vote of all Independent Directors
of the manager of HTC LP's or HTD LP's general partner, as
required by the limited partnership agreement of HTC LP or HTD
LP, as the case may be), (A) dissolve or liquidate, in whole
or in part, or institute proceedings to be adjudicated
bankrupt or insolvent, (B) consent to the institution of
bankruptcy or insolvency proceedings against HTC LP or HTD LP,
as applicable, (C) file a petition seeking or consent to
reorganization or relief under any applicable federal or state
law relating to bankruptcy, (D) consent to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of HTC LP or HTD LP or all or
substantially all of the property of HTC LP or HTD LP, as
applicable, (E) make a general assignment for the benefit of
creditors, (F) admit in writing HTC LP's or HTD LP's, as
applicable, inability to pay its debts generally
36
as they become due, or (G) take any corporate action or
partnership action in furtherance of the actions set forth in
clauses (A) through (F) above; PROVIDED, HOWEVER, that no
general partner shall in any event consent to the institution
of bankruptcy or insolvency proceedings against either HTC LP
or HTD LP so long as HTC LP or HTD LP, as applicable, is
solvent; or
(iii) without the affirmative vote of a majority of
the members of the Board of Directors of the manager of the
general partner of HTC LP or HTD LP, as applicable, (which
must include the affirmative vote of all Independent Directors
of the manager of HTC LP's or HTD LP's general partner, as
required by the limited partnership agreement of HTC LP or HTD
LP, as the case may be), merge or consolidate with any other
limited partnership, corporation, company or entity or sell
all or substantially all of the assets of HTC LP or HTD LP, as
applicable, or acquire all or substantially all of the assets
or partnerships interests or capital stock or other ownership
interest of any other limited partnership, corporation,
company or entity (except for the acquisition of beneficial
interests in the Origination Trust and the sale, transfer,
conveyance, disposition, pledge, assignment, financing and
refinancing of, or otherwise dealing with, beneficial
interests in the Origination Trust in accordance with the
terms of Section 5.03(b)(ii), which shall not be otherwise
restricted by this Section 5.03(c)).
Section 5.04 LIMITATION ON LIABILITY OF THE TRANSFERORS AND OTHERS.
Each of HTC LP and HTD LP and any director, officer, employee or agent of HTC LP
and HTD LP may rely in good faith on the advice of counsel or on any document of
any kind, PRIMA FACIE properly executed and submitted by any Person with respect
to any matters arising under this 1999-A Securitization Trust Agreement.
Section 5.05 THE TRANSFERORS MAY OWN NOTES. Each of HTC LP and HTD LP
and each of their respective Affiliates may in its individual or any other
capacity become the owner or pledgee of Notes with the same rights as it would
have if it were not HTC LP or HTD LP or such an Affiliate thereof except as
otherwise specifically provided in the definition of the term "Noteholder".
Notes so owned by or pledged to HTC LP or HTD LP or such Affiliate shall have an
equal and proportionate benefit under the provisions of this 1999-A
Securitization Trust Agreement, without preference, priority or distinction as
among all of the Notes except as otherwise specifically provided in the
definition of the term "Noteholder". Each of HTC LP and HTD LP, as the case may
be, will give notice to each Rating Agency if it becomes aware that any of its
Affiliates shall at any time become the owner or pledgee of Notes.
Section 5.06 NO TRANSFER. On behalf of themselves and their successors
and assigns, each of HTC LP and HTD LP hereby covenants that it will not
transfer, pledge or assign to any Person the Certificates or any part of its
right to receive any Excess Interest Collections pursuant to Section 3.03(d)
except as expressly set forth in the 1999-A SUBI Supplement.
Section 5.07 TAX MATTERS PARTNER. If at any time the 1999-A
Securitization Trust is treated as a partnership for tax purposes, HTC LP shall
act as "Tax Matters Partner" (i) to represent the partners before taxing
authorities or courts of competent jurisdiction in any tax matters affecting the
1999-A Securitization Trust as a tax partnership and (ii) to execute any
37
agreements or other documents relating to or affecting such tax matters,
including agreements or documents binding the partners with respect to such tax
matters or otherwise affecting their rights, including extending the statute of
limitations for assessment of tax deficiencies and adjusting the 1999-A
Securitization Trust's federal, state or local tax returns. In the event of such
recharacterization, HTC LP shall provide written notice of such
recharacterization to the 1999-A Owner Trustee. HTC LP shall not be liable to
the 1999-A Securitization Trust or to any Noteholder for any action taken or
omitted by HTC LP with regard to such tax matters or otherwise as a result of
its holding the position of Tax Matters Partner.
ARTICLE SIX
THE 1999-A OWNER TRUSTEE
Section 6.01 DUTIES OF THE 1999-A OWNER TRUSTEE AND THE DELAWARE OWNER
TRUSTEE.
(a) The 1999-A Owner Trustee and the Delaware Owner Trustee
(both prior to and after the occurrence of a 1999-A Servicer
Termination Event under the Servicing Agreement or the 1999-A Servicing
Supplement) undertakes to perform such duties and only such duties as
are specifically set forth in this 1999-A Securitization Trust
Agreement.
(b) The 1999-A Owner Trustee and the Delaware Owner Trustee,
upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the 1999-A
Owner Trustee or the Delaware Owner Trustee, as applicable, that shall
be specifically required to be furnished pursuant to any provision of
this 1999-A Securitization Trust Agreement, shall examine them to
determine whether they conform on their face to the requirements of
this 1999-A Securitization Trust Agreement.
(c) No provision of this 1999-A Securitization Trust Agreement
shall be construed to relieve the 1999-A Owner Trustee or the Delaware
Owner Trustee from liability for its own negligent action, its own
negligent failure to act, its own bad faith or its own willful
misfeasance; PROVIDED, HOWEVER, that
(i) the duties and obligations of the 1999-A Owner
Trustee and the Delaware Owner Trustee shall be determined
solely by the express provisions of this 1999-A Securitization
Trust Agreement, neither the 1999-A Owner Trustee nor the
Delaware Owner Trustee shall be liable except for the
performance of such duties and obligations as are specifically
set forth in this 1999-A Securitization Trust Agreement, no
implied covenants or obligations shall be read into this
1999-A Securitization Trust Agreement against the 1999-A Owner
Trustee or the Delaware Owner Trustee, the permissive right of
the 1999-A Owner Trustee and the Delaware Owner Trustee to do
things enumerated in this 1999-A Securitization Trust
Agreement shall not be construed as a duty and, in the absence
of bad faith, negligence or willful misfeasance on the part of
the 1999-A Owner Trustee or the Delaware Owner Trustee, the
1999-A Owner Trustee and the Delaware Owner Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
38
certificates or opinions furnished to the 1999-A Owner Trustee
or the Delaware Owner Trustee, as applicable, and conforming
to the requirements of this 1999-A Securitization Trust
Agreement;
(ii) neither the 1999-A Owner Trustee nor the
Delaware Owner Trustee shall be personally liable for an error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the 1999-A Owner Trustee or the
Delaware Owner Trustee, as applicable, was negligent in
performing its duties in accordance with the terms of this
1999-A Securitization Trust Agreement; and
(iii) neither the 1999-A Owner Trustee nor the
Delaware Owner Trustee, as applicable, shall be personally
liable with respect to any action taken or suffered or omitted
to be taken in good faith absent negligence or willful
misfeasance in accordance with the direction of the 1999-A
Indenture Trustee (and, after payment in full of the Notes,
HTC LP and HTD LP) relating to the time, method and place of
conducting any proceeding for any remedy available to the
1999-A Owner Trustee or the Delaware Owner Trustee, as
applicable, or exercising any trust or power conferred upon
the 1999-A Owner Trustee or the Delaware Owner Trustee, as
applicable, under this 1999-A Securitization Trust Agreement,
the Origination Trust Agreement or the 1999-A SUBI Supplement.
(d) Neither the 1999-A Owner Trustee nor the Delaware Owner
Trustee shall be required to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties under
this 1999-A Securitization Trust Agreement or in the exercise of any of
its rights or powers if there shall be reasonable grounds for believing
that it is not assured of the repayment of such funds or indemnity
satisfactory to it against such risk or liability.
(e) All information obtained by the 1999-A Owner Trustee or
the Delaware Owner Trustee regarding the Lessees and the 1999-A
Contracts, whether upon the exercise of its rights under this 1999-A
Securitization Trust Agreement or any other 1999-A Securitization
Document, shall be maintained by the 1999-A Owner Trustee or the
Delaware Owner Trustee, as applicable, in confidence and shall not be
disclosed to any other Person, unless such disclosure is required by
any applicable law or regulation or pursuant to subpoena.
(f) Pursuant to Sections 8.01 and 8.02 of the 1999-A Servicing
Supplement, if the 1999-A Owner Trustee or the Delaware Owner Trustee
discovers that a representation or warranty with respect to a 1999-A
Contract was incorrect as of the time specified with respect to such
representation and warranty and such incorrectness materially and
adversely affects such 1999-A Contract, the 1999-A Owner Trustee or the
Delaware Owner Trustee, as applicable, shall give prompt written notice
to the Servicer and the Origination Trustee of such incorrectness.
39
Section 6.02 CERTAIN MATTERS AFFECTING THE 1999-A OWNER TRUSTEE AND THE
DELAWARE OWNER TRUSTEE.
Except as otherwise provided in Section 6.01:
(a) the 1999-A Owner Trustee and the Delaware Owner Trustee
may rely and shall be protected in acting or refraining from acting
upon any resolution, Officer's Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it in good faith to be genuine and to have been signed or
presented by the proper party or parties;
(b) the 1999-A Owner Trustee and the Delaware Owner Trustee
may consult with counsel and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it under this 1999-A Securitization Trust
Agreement in good faith absent negligence or willful misfeasance and in
accordance with such Opinion of Counsel;
(c) neither the 1999-A Owner Trustee nor the Delaware Owner
Trustee shall be under any obligation to exercise any of the rights or
powers vested in it by this 1999-A Securitization Trust Agreement or
the Origination Trust Agreement, as supplemented by the 1999-A SUBI
Supplement, or to institute, conduct or defend any litigation under or
in relation to this 1999-A Securitization Trust Agreement or the
Origination Trust Agreement, as supplemented by the 1999-A SUBI
Supplement, at the request, order or direction of the 1999-A Indenture
Trustee, HTC LP or HTD LP, unless the Certificateholders, the
Noteholders, the 1999-A Indenture Trustee, HTC LP or HTD LP shall have
offered to the 1999-A Owner Trustee or the Delaware Owner Trustee, as
applicable, reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby;
(d) neither the 1999-A Owner Trustee nor the Delaware Owner
Trustee shall be personally liable for any action taken, suffered or
omitted by it in good faith absent negligence or willful misfeasance
and believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this 1999-A Securitization Trust
Agreement; and
(e) the 1999-A Owner Trustee and the Delaware Owner Trustee
may execute any of the trusts or powers under this 1999-A
Securitization Trust Agreement or perform any duties under this 1999-A
Securitization Trust Agreement either directly or by or through agents
or attorneys or a custodian; PROVIDED, HOWEVER, that the 1999-A Owner
Trustee and the Delaware Owner Trustee shall remain liable for
performance of their duties as set forth in Section 6.01.
Section 6.03 1999-A OWNER TRUSTEE AND DELAWARE OWNER TRUSTEE NOT LIABLE
FOR NOTES, CERTIFICATES OR LEASES. Neither the 1999-A Owner Trustee nor the
Delaware Owner Trustee shall make any representations as to the validity,
enforceability or sufficiency of this 1999-A Securitization Trust Agreement, the
Indenture, the Notes, the Certificates (other than the
40
execution by the 1999-A Owner Trustee on behalf of the 1999-A Securitization
Trust of this 1999-A Securitization Trust Agreement and the authentication of
the Certificates), the 1999-A SUBI Interest or the 1999-A SUBI Certificates.
Neither the 1999-A Owner Trustee nor the Delaware Owner Trustee shall at any
time have any responsibility or liability (i) for or with respect to the
legality, validity and enforceability of the Indenture, the Notes, the 1999-A
SUBI Interest, the 1999-A SUBI Certificates, any 1999-A Contract, any ownership
interest in any 1999-A Leased Vehicle or the maintenance of any such ownership
interest, or (ii) for or with respect to the efficacy of the 1999-A
Securitization Trust or the 1999-A Owner Trustee's ability to generate the
payments to be distributed to the Noteholders or the Certificateholders under
this 1999-A Securitization Trust Agreement, including the validity of (A) the
assignment of the 1999-A SUBI Interest and the 1999-A SUBI Certificates to the
1999-A Securitization Trust or (B) any intervening assignment; the existence,
condition, location and ownership of any 1999-A Contract or 1999-A Leased
Vehicle; the existence and enforceability of the physical damage or credit life
or credit disability insurance; the existence and contents of any 1999-A
Contract, any computer or other record of any 1999-A Contract or the
completeness of any 1999-A Contract; the performance or enforcement of any
Lease; the compliance by HTC LP or HTD LP with any covenant or the breach by HTC
LP or HTD LP of any warranty or representation made under this 1999-A
Securitization Trust Agreement or in any related document and the accuracy of
any such warranty or representation; the acts or omissions of the Servicer; or
any action or failure to act by the 1999-A Owner Trustee or the Delaware Owner
Trustee in good faith, absent negligence or willful misfeasance, taken at the
instruction of the Servicer; PROVIDED, HOWEVER, that the foregoing shall not
relieve the 1999-A Owner Trustee or the Delaware Owner Trustee of its obligation
to perform its duties under this 1999-A Securitization Trust Agreement. Except
with respect to a claim based on the failure of the 1999-A Owner Trustee or the
Delaware Owner Trustee to perform its duties under this 1999-A Securitization
Trust Agreement or based on the 1999-A Owner Trustee's or the Delaware Owner
Trustee's, as applicable, willful misfeasance, bad faith or negligence, no
recourse shall be had for any claim based on any provision of this 1999-A
Securitization Trust Agreement, the Certificates, the 1999-A SUBI Interest, the
1999-A SUBI Certificates or any assignment thereof against the institution
serving as 1999-A Owner Trustee or Delaware Owner Trustee, in each case in its
individual capacity. Neither the 1999-A Owner Trustee nor the Delaware Owner
Trustee shall have any personal obligation, liability or duty whatsoever to any
Certificateholder, any Noteholder, the 1999-A Indenture Trustee, HTC LP, HTD LP
or any other Person with respect to any such claim, and any such claim shall be
asserted solely against the 1999-A Securitization Trust or any indemnitor who
shall furnish indemnity as provided in this 1999-A Securitization Trust
Agreement. Neither the 1999-A Owner Trustee nor the Delaware Owner Trustee shall
be accountable for the use or application by HTC LP or HTD LP of any of the
Notes or the Certificates or the proceeds of the Notes or the Certificates, or
for the use or application of any funds paid to the Servicer in respect of the
1999-A SUBI Interest or the 1999-A SUBI Certificates.
Section 6.04 1999-A OWNER TRUSTEE MAY OWN SECURITIES. The 1999-A Owner
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Notes or the owner of the Certificates with the same rights as it
would have if it were not 1999-A Owner Trustee.
Section 6.05 1999-A OWNER TRUSTEE'S FEES AND EXPENSES. The 1999-A Owner
Trustee shall be entitled to reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust) for all services rendered by it in the
41
execution of the trusts created by this 1999-A Securitization Trust Agreement
and in the exercise and performance of any of the powers and duties of the
1999-A Owner Trustee under this 1999-A Securitization Trust Agreement, and to
payment or reimbursement upon its request for all reasonable expenses,
disbursements and advances incurred or made by the 1999-A Owner Trustee in its
capacity as 1999-A Owner Trustee in accordance with any of the provisions of
this 1999-A Securitization Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ), except any such expense, disbursement or
advance as may arise from its negligence, willful misfeasance or bad faith or
that is the responsibility of the 1999-A Indenture Trustee, the Noteholders, the
Certificateholders, HTC LP or HTD LP under this 1999-A Securitization Trust
Agreement or any 1999-A Securitization Document. Such compensation and
reimbursement shall be paid as set forth in Sections 3.03(c) and 3.03(g).
Additionally, HTC LP or HTD LP, pursuant to Section 6.02(c), may agree to
indemnify the 1999-A Owner Trustee under certain circumstances and, as set forth
in this 1999-A Securitization Trust Agreement, will be liable for any unpaid
compensation and reimbursement which is not otherwise paid pursuant to this
Section 6.05.
Section 6.06 ELIGIBILITY REQUIREMENTS FOR 1999-A OWNER TRUSTEE. The
1999-A Owner Trustee under this 1999-A Securitization Trust Agreement shall at
all times: (a) be a national banking association or corporation having its
corporate trust office in the same State as the location of the Corporate Trust
Office of the 1999-A Owner Trustee as specified in this 1999-A Securitization
Trust Agreement; (b) be organized and doing business under the laws of such
State or the United States; (c) be authorized under such laws to exercise
corporate trust powers; (d) have a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and (e) have a long-term deposit rating no lower than Baa3 by
Moody's, so long as Xxxxx'x is a Rating Agency, BBB- by Standard & Poor's, so
long as Standard & Poor's is a Rating Agency, BBB- by Fitch, so long as Fitch is
a Rating Agency, or be otherwise acceptable to each Rating Agency, as evidenced
by a letter to such effect from each of them.
If the 1999-A Owner Trustee 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 6.06, 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. If at any time the 1999-A Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.06, the 1999-A Owner Trustee
shall resign immediately in the manner and with the effect specified in Section
6.07.
Section 6.07 RESIGNATION OR REMOVAL OF 1999-A OWNER TRUSTEE;
RESIGNATION OF DELAWARE OWNER TRUSTEE.
(a) RESIGNATION. The 1999-A Owner Trustee may at any time
resign and be discharged from the trusts created by this 1999-A
Securitization Trust Agreement by giving written notice thereof to HTC
LP and HTD LP. Upon receiving such notice of resignation, HTC LP and
HTD LP shall promptly appoint a successor 1999-A Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning 1999-A Owner Trustee and one copy to the
successor 1999-A Owner Trustee. If no successor 1999-A Owner Trustee
shall have been so appointed and
42
have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning 1999-A Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor
1999-A Owner Trustee.
(b) REMOVAL. If at any time the 1999-A Owner Trustee shall
cease to be eligible in accordance with the provisions of Section 6.06
and shall fail to resign after written request therefor by HTC LP and
HTD LP, or if at any time the 1999-A Owner Trustee shall be legally
unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the 1999-A Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
1999-A Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then HTC LP and HTD LP may
jointly remove the 1999-A Owner Trustee. If HTC LP and HTD LP shall
remove the 1999-A Owner Trustee under the authority of the immediately
preceding sentence, HTC LP and HTD LP shall promptly appoint a
successor 1999-A Owner Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the 1999-A Owner Trustee
so removed and one copy to the successor 1999-A Owner Trustee, and
payment of all fees owed to the outgoing 1999-A Owner Trustee.
(c) EFFECTIVE DATE OF RESIGNATION OR REMOVAL. Any resignation
or removal of the 1999-A Owner Trustee and appointment of a successor
1999-A Owner Trustee pursuant to any of the provisions of this Section
6.07 shall not become effective until acceptance of appointment by the
successor 1999-A Owner Trustee as provided in Section 6.08. The
Servicer shall give the 1999-A Indenture Trustee and each Rating Agency
notice of any such resignation or removal of the 1999-A Owner Trustee
and appointment and acceptance of a successor 1999-A Owner Trustee.
(d) DELAWARE OWNER TRUSTEE. Clauses (a) and (c) of this
Section 6.07 shall apply to the Delaware Owner Trustee on the same
basis as the 1999-A Owner Trustee.
Section 6.08 SUCCESSOR 1999-A OWNER TRUSTEE OR DELAWARE OWNER TRUSTEE.
Any successor 1999-A Owner Trustee appointed as provided in Section 6.07 shall
execute, acknowledge and deliver to its predecessor 1999-A Owner Trustee, to HTC
LP and to HTD LP, an instrument accepting such appointment under this 1999-A
Securitization Trust Agreement, and thereupon the resignation or removal of the
predecessor 1999-A Owner Trustee shall become effective and such successor
1999-A Owner Trustee, without any further act, deed or conveyance, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor under this 1999-A Securitization Trust Agreement, with like effect
as if originally named as 1999-A Owner Trustee. The predecessor 1999-A Owner
Trustee shall deliver to the successor 1999-A Owner Trustee all documents and
statements held by it under this 1999-A Securitization Trust Agreement; and HTC
LP, HTD LP and the predecessor 1999-A Owner Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required to fully
and certainly vest and confirm in the successor 1999-A Owner Trustee all such
rights, powers, duties and obligations. No successor 1999-A Owner Trustee shall
accept appointment as provided in this Section 6.08 unless at the time of such
acceptance such successor 1999-A Owner Trustee shall be eligible under the
provisions of Section 6.06. Upon acceptance by a successor 1999-A Owner Trustee
of its appointment as provided in this Section
43
6.08, the Servicer shall cause notice of the appointment of such successor
1999-A Owner Trustee under this 1999-A Securitization Trust Agreement to be
given by mail to the 1999-A Indenture Trustee and each Rating Agency. If the
Servicer fails to mail or cause to be mailed such notice within ten days after
acceptance of appointment by the successor 1999-A Owner Trustee, the successor
1999-A Owner Trustee shall cause such notice to be mailed at the expense of the
Servicer. This Section 6.08 shall apply to the Delaware Owner Trustee on the
same basis as the 1999-A Owner Trustee.
Section 6.09 MERGER OR CONSOLIDATION OF 1999-A OWNER TRUSTEE OR
DELAWARE OWNER TRUSTEE. Any corporation (i) into which the 1999-A Owner Trustee
may be merged or consolidated, (ii) which may result from any merger, conversion
or consolidation to which the 1999-A Owner Trustee shall be a party, or (iii)
which may succeed to the corporate trust business of the 1999-A Owner Trustee,
shall be the successor of the 1999-A Owner Trustee hereunder, provided such
corporation shall be eligible pursuant to Section 6.06, 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, except that if the
1999-A Owner Trustee in any of the foregoing cases is not the surviving entity,
then the surviving entity shall execute an agreement of assumption to perform
every obligation of the 1999-A Owner Trustee, either generally or particularly
as provided herein. Notice of any such event shall be given by the 1999-A Owner
Trustee to each Rating Agency. This Section 6.09 shall apply to the Delaware
Owner Trustee on the same basis as the 1999-A Owner Trustee.
Section 6.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE 1999-A OWNER
TRUSTEE. Notwithstanding any other provisions of this 1999-A Securitization
Trust Agreement, at any time, for the purpose of meeting any legal requirements
of any jurisdiction in which any part of the 1999-A Securitization Trust may at
the time be located, HTC LP, HTD LP and the 1999-A Owner Trustee acting jointly
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons approved by the 1999-A Owner Trustee to act as co-trustee,
jointly with the 1999-A Owner Trustee, or separate trustee or separate trustees,
of all or any part of the 1999-A Securitization Trust, and to vest in such
Person, in such capacity and for the benefit of the Noteholders and the
Certificateholders, such title to the 1999-A Securitization Trust, or any part
thereof, and, subject to the other provisions of this Section 6.10, such powers,
duties, obligations, rights and trusts as HTC LP, HTD LP and the 1999-A Owner
Trustee may consider necessary or desirable. If either HTC LP or HTD LP shall
not have joined in such appointment within 15 days after the receipt by it of a
request to do so, the 1999-A Owner Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee under this 1999-A
Securitization Trust Agreement shall be required to meet the terms of
eligibility as a successor 1999-A Owner Trustee pursuant to Section 6.06 and no
notice of a successor 1999-A Owner Trustee pursuant to Section 6.08 and no
notice to Certificateholders, Noteholders or the 1999-A Indenture Trustee of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 6.08.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the 1999-A Owner Trustee shall be conferred upon and
exercised or performed by the
44
1999-A 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 1999-A 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 1999-A 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 1999-A
Securitization Trust or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the 1999-A Owner Trustee;
(ii) no trustee under this 1999-A Securitization Trust
Agreement shall be personally liable by reason of any act or omission
of any other trustee under this 1999-A Securitization Trust Agreement;
and
(iii) HTC LP, HTD LP and the 1999-A Owner Trustee acting
jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the 1999-A 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 1999-A
Securitization Trust Agreement and the conditions of this Section 6.10. 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 1999-A Owner Trustee or separately, as may
be provided therein, subject to all the provisions of this 1999-A Securitization
Trust Agreement, specifically including every provision of this 1999-A
Securitization Trust Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the 1999-A Owner Trustee. Each such
instrument shall be filed with the 1999-A Owner Trustee and a copy thereof given
to HTC LP, HTD LP and the Servicer.
Any separate trustee or co-trustee may at any time appoint the 1999-A
Owner Trustee its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this 1999-A Securitization Trust Agreement on behalf of such separate trustee or
co-trustee 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
1999-A Owner Trustee, to the extent permitted by law, without the appointment of
a new or successor trustee. Notwithstanding anything to the contrary in this
1999-A Securitization Trust Agreement, the appointment of any separate trustee
or co-trustee shall not relieve the 1999-A Owner Trustee of its obligations and
duties under this 1999-A Securitization Trust Agreement.
Section 6.11 REPRESENTATIONS AND WARRANTIES OF 1999-A OWNER TRUSTEE.
The 1999-A Owner Trustee makes the following representations and warranties upon
which HTC LP, HTD LP, the Noteholders and the Certificateholders may rely:
(i) ORGANIZATION AND GOOD STANDING. The 1999-A Owner Trustee
is a national banking association organized, existing and in good
standing under the laws of the United States.
45
(ii) POWER AND AUTHORITY. The 1999-A Owner Trustee has full
power, authority and right to execute, deliver and perform this 1999-A
Securitization Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this 1999-A
Securitization Trust Agreement.
(iii) DUE EXECUTION. This 1999-A Securitization Trust
Agreement has been duly executed and delivered by the 1999-A Owner
Trustee.
(iv) ENFORCEABILITY. This 1999-A Securitization Trust
Agreement constitutes the legal, valid and binding obligation of the
1999-A Owner Trustee, enforceable against the 1999-A Owner Trustee in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws affecting enforcement of creditors' rights generally and
by general principles of equity.
Section 6.12 TAX RETURNS. Pursuant to Section 10.04 of the 1999-A
Servicing Supplement, the Servicer shall, on behalf of the 1999-A Securitization
Trust, the 1999-A Owner Trustee, HTC LP and HTD LP, prepare or shall cause to be
prepared any required federal tax information returns (in a manner consistent
with the treatment of the Notes as indebtedness) and the 1999-A Owner Trustee
shall file and distribute such forms as required by law in accordance with the
Servicer's instructions. Also pursuant to Section 10.04 of the 1999-A Servicing
Supplement, the Servicer shall prepare or cause to be prepared any federal and
state income tax returns that may be required with respect to the 1999-A
Securitization Trust or the assets of the 1999-A Securitization Trust and shall
deliver any such returns to the 1999-A Owner Trustee for signature by HTC LP and
HTD LP (or any other Person authorized to sign such returns) at least five days
prior to the date such returns are required by law to be filed. The 1999-A
Securitization Trust shall not elect to be treated as an association under
Treasury Regulations ss. 301.7701-3(a) for federal income tax purposes.
Section 6.13 1999-A OWNER TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF THE CERTIFICATES. All rights of action and claims under this 1999-A
Securitization Trust Agreement or the Certificates may be prosecuted and
enforced by the 1999-A Owner Trustee without the possession of the Certificates
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the 1999-A Owner Trustee shall be brought in its own
name as trustee. Any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and advances of the
1999-A Owner Trustee, its agents and counsel, be for the ratable benefit of the
Noteholders and the Certificateholders in respect of which such judgment has
been obtained.
Section 6.14 SUIT FOR ENFORCEMENT. If a 1999-A Servicer Termination
Event shall occur and be continuing, the 1999-A Indenture Trustee or the 1999-A
Owner Trustee, in its discretion, may, subject to the provisions of Sections
6.01 and 6.02 hereof and Section 2.01(c) of the Servicing Agreement (with
respect to the Servicer), proceed to protect and enforce its rights and the
rights of the Noteholders and Certificateholders under this 1999-A
Securitization Trust Agreement, the Servicing Agreement and the 1999-A Servicing
Supplement, as applicable, by a suit, action or proceeding in equity or at law
or otherwise, whether for the specific performance of any covenant or agreement
contained herein or therein or in aid of the execution of any power
46
granted herein or therein or for the enforcement of any other legal, equitable
or other remedy as the 1999-A Indenture Trustee or the 1999-A Owner Trustee,
being advised by counsel, shall deem most effectual to protect and enforce any
of the rights of the 1999-A Indenture Trustee or the 1999-A Owner Trustee or the
Noteholders and the Certificateholders.
Section 6.15 RIGHTS OF 1999-A INDENTURE TRUSTEE TO DIRECT 1999-A OWNER
TRUSTEE. Until the Notes are paid in full, the 1999-A Indenture Trustee shall
have the right, and, thereafter, HTC LP and HTD LP shall jointly have the right,
to direct the time, method and place of conducting any proceeding for any remedy
available to the 1999-A Owner Trustee under this 1999-A Securitization Trust
Agreement, or exercising any trust or power conferred on the 1999-A Owner
Trustee by this 1999-A Securitization Trust Agreement; PROVIDED, HOWEVER, that
(a) subject to Sections 6.01 and 6.02, the 1999-A Owner Trustee shall have the
right to decline to follow any such direction if the 1999-A Owner Trustee being
advised by counsel determines that the action so directed may not lawfully be
taken, or if the 1999-A Owner Trustee in good faith shall, by a Responsible
Officer, determine that the proceedings so directed would be illegal or subject
it to personal liability, and (b) nothing in this 1999-A Securitization Trust
Agreement shall impair the right of the 1999-A Owner Trustee to take any action
deemed proper by the 1999-A Owner Trustee and which is not inconsistent with
such direction by the 1999-A Indenture Trustee or by HTC LP and HTD LP, as
applicable.
Section 6.16 NO PETITION. Each of the parties hereto covenants and
agrees that prior to the date which is one year and one day after the last date
upon which (a) each Class of Notes and the Certificates have been paid in full,
and (b) all obligations due under any other Securitization have been paid in
full, it will not institute against, or join any other Person in instituting
against, the 1999-A Securitization Trust, HTA LP, HTB LP, HTC LP, HTD LP, any
general partner or member (as applicable) of a UTI Beneficiary or of a
Transferor which is a partnership or a limited liability company, the
Origination Trustee, the Origination Trust, any Special Purpose Affiliate, any
UTI Beneficiary, any Beneficiary, and any general partner or member (as
applicable) of a Beneficiary or of a Special Purpose Affiliate partnership (or
any of their respective general partners) that is a partnership or a limited
liability company, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law. The foregoing shall not limit the 1999-A Indenture
Trustee's or 1999-A Owner Trustee's right to file any claim in or otherwise take
actions with respect to any such proceeding instituted by any Person not under
such a constraint. This Section 6.16 shall survive the termination of this
1999-A Securitization Trust Agreement or the resignation or removal of the
1999-A Owner Trustee or the 1999-A Indenture Trustee under this 1999-A
Securitization Trust Agreement or the Indenture, respectively.
Section 6.17 AUTHORITY TO EXECUTE. Each of HTC LP and HTD LP hereby
authorizes and directs the 1999-A Owner Trustee (i) to execute and deliver on
behalf of the 1999-A Securitization Trust the Indenture, the Certificates and
any other document as HTC LP, HTD LP or the 1999-A Indenture Trustee may from
time to time direct, (ii) to execute and deliver all other documents
contemplated by the documents referred to in clause (i) above, and (iii) subject
to the terms of this 1999-A Securitization Trust Agreement, to take such other
actions in connection with the foregoing as HTC LP, HTD LP, the Servicer or the
1999-A Indenture Trustee may from time to time direct.
47
Section 6.18 MANAGEMENT OF THE 1999-A SECURITIZATION TRUST. The
business and affairs of the 1999-A Securitization Trust shall be managed by the
1999-A Owner Trustee at the direction of HTC LP, HTD LP, the Servicer and the
1999-A Indenture Trustee.
Section 6.19 NEGATIVE PLEDGE. Except as expressly set forth herein with
respect to the pledge to the 1999-A Indenture Trustee of the 1999-A SUBI
Certificates and the 1999-A SUBI Assets evidenced thereby and the disposition of
the assets of the 1999-A Securitization Trust in connection with the termination
of the 1999-A Securitization Trust pursuant to Section 7.01, the 1999-A Owner
Trustee shall not sell, assign, pledge, convey or otherwise transfer to any
Person the 1999-A SUBI Certificates or any interest therein.
ARTICLE SEVEN
TERMINATION
Section 7.01 DISSOLUTION AND TERMINATION OF THE 1999-A SECURITIZATION TRUST.
(a) The 1999-A Securitization Trust shall dissolve and its
affairs shall be wound up upon the earliest to occur of (i) the
maturity, sale or other liquidation, as the case may be, of the last
outstanding 1999-A Contract and 1999-A Leased Vehicle evidenced by the
1999-A SUBI Interest and the distribution of all proceeds thereof
(other than proceeds of the Residual Value Insurance Policy or any
other residual value insurance policy, to the extent such proceeds
relate to the 1999-A Contracts and the 1999-A Leased Vehicles) together
with all amounts on deposit all 1999-A SUBI Accounts and the Reserve
Fund in the manner provided in Section 3.03, (ii) the purchase as of
any Distribution Date by the Servicer of the corpus of the 1999-A
Securitization Trust in the manner provided in Section 7.02, (iii) the
day following the Distribution Date upon which all Notes and
Certificates have been paid in full and after which there is no
unreimbursed Class A-1 Note Principal Loss Amount, Class A-2 Note
Principal Loss Amount, Class A-3 Note Principal Loss Amount, Class A-4
Note Principal Loss Amount, Class A-5 Note Principal Loss Amount, Class
B Note Principal Loss Amount, Class C Note Principal Loss Amount,
Certificate Principal Loss Amount, Class A-1 Note Principal Loss
Interest Amount, Class A-2 Note Principal Loss Interest Amount, Class
A-3 Note Principal Loss Interest Amount, Class A-4 Note Principal Loss
Interest Amount, Class A-5 Note Principal Loss Interest Amount, Class B
Note Principal Loss Interest Amount, Class C Note Principal Loss
Interest Amount, Certificate Principal Loss Interest Amount, Class B
Note Principal Carryover Shortfall, Class C Note Principal Carryover
Shortfall, Class B Note Principal Carryover Shortfall Interest Amount
or Class C Note Principal Carryover Shortfall Interest Amount or (iv)
the expiration, disposition or termination of the 1999-A SUBI Interest.
HTC LP and HTD LP shall promptly notify the 1999-A Owner Trustee and
each Rating Agency of any prospective dissolution of the 1999-A
Securitization Trust.
(b) Upon the completion of the winding up of the 1999-A
Securitization Trust (i) the 1999-A Securitization Trust and this
1999-A Securitization Trust Agreement shall terminate, (ii) the
respective obligations and responsibilities of HTC LP, HTD LP, the
1999-A Indenture Trustee and the 1999-A Owner Trustee shall terminate,
and (iii) the 1999-A Owner Trustee shall cause the Certificate of Trust
to be cancelled by filing a
48
certificate of cancellation with the Secretary of State of the State of
Delaware in accordance with Section 3810 of the Business Trust Statute.
Section 7.02 OPTIONAL PURCHASE OF 1999-A SUBI CERTIFICATES.
On each Distribution Date as of which the Investor Balance shall be
less than or equal to $329,355,828.90 (10% of the sum of the Initial Note
Balance and the Initial Certificate Balance), either before or after giving
effect to any payment of principal required to be made on such Distribution
Date, the Servicer shall have the option to purchase the Securityholders'
interest in the corpus of the 1999-A Securitization Trust and to effect a
termination of the 1999-A Securitization Trust (including both the 1999-A Note
Securitization Trust and the 1999-A Residual Value Insurance Co-Trust). To
exercise such option, the Servicer shall notify the 1999-A Indenture Trustee,
the 1999-A Owner Trustee, HTC LP and HTD LP, in writing, no later than the third
Business Day of the month in which such purchase is to be effected and shall
deposit in the 1999-A SUBI Collection Account an amount equal to the greater of
(i) 99.8% of the Aggregate Net Investment Value as of the last day of the
related Collection Period, and (ii) the sum of (A) the Class A-1 Note Balance,
the Class A-2 Note Balance, the Class A-3 Note Balance, the Class A-4 Note
Balance, the Class A-5 Note Balance, the Class B Note Balance, the Class C Note
Balance and the Certificate Balance, (B) the accrued and unpaid Class A-1
Interest Distributable Amount, Class A-2 Interest Distributable Amount, Class
A-3 Interest Distributable Amount, Class A-4 Interest Distributable Amount,
Class A-5 Interest Distributable Amount, Class B Interest Distributable Amount,
Class C Interest Distributable Amount and Certificate Interest Distributable
Amount, (C) any accrued and unpaid Class A-1 Interest Carryover Shortfall, Class
A-2 Interest Carryover Shortfall, Class A-3 Interest Carryover Shortfall, Class
A-4 Interest Carryover Shortfall, Class A-5 Interest Carryover Shortfall, Class
B Interest Carryover Shortfall, Class C Interest Carryover Shortfall and
Certificate Interest Carryover Shortfall, (D) any unpaid Class A-1 Note
Principal Loss Amount, Class A-2 Note Principal Loss Amount, Class A-3 Note
Principal Loss Amount, Class A-4 Note Principal Loss Amount, Class A-5 Note
Principal Loss Amount, Class B Note Principal Loss Amount, Class C Note
Principal Loss Amount, Certificate Principal Loss Amount, Class B Note Principal
Carryover Shortfall and Class C Note Principal Carryover Shortfall, and (E) any
accrued and unpaid Class A-1 Note Principal Loss Interest Amount, Class A-2 Note
Principal Loss Interest Amount, Class A-3 Note Principal Loss Interest Amount,
Class A-4 Note Principal Loss Interest Amount, Class A-5 Note Principal Loss
Interest Amount, Class B Note Principal Loss Interest Amount, Class C Note
Principal Loss Interest Amount, Certificate Principal Loss Interest Amount,
Class B Note Principal Carryover Shortfall Interest Amount and Class C Note
Principal Carryover Shortfall Interest Amount, in each case through the day
preceding the final Distribution Date. On such Distribution Date, upon receipt
of such amount, the 1999-A Owner Trustee shall distribute such amounts pursuant
to the priorities set forth in Section 3.03, and any balance will be distributed
to the Servicer. Thereupon the Servicer shall succeed to all of the corpus of
the 1999-A Securitization Trust.
ARTICLE EIGHT
TAX MATTERS
Section 8.01 TAX AND ACCOUNTING CHARACTERIZATION. It is the intent of
the parties hereto that the 1999-A Securitization Trust not constitute a
separate entity for federal income tax or
49
state income or franchise tax purposes. It is the intent of each of HTC LP and
HTD LP and the Noteholders that the Notes be treated as indebtedness of each of
HTC LP and HTD LP secured by the assets of the 1999-A Securitization Trust for
federal income tax and state income and franchise tax purposes. The parties
agree that, unless otherwise required by appropriate tax authorities, the 1999-A
Securitization Trust shall not file or cause to be filed annual returns, reports
or other forms and shall treat the 1999-A Securitization Trust consistent with
the characterization that the 1999-A Securitization Trust is not a separate
entity for tax purposes.
ARTICLE NINE
MISCELLANEOUS PROVISIONS
Section 9.01 AMENDMENT.
(a) This 1999-A Securitization Trust Agreement and the 1999-A
Securitization Documents may be amended by the respective parties
thereto, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions herein or therein, to add, change or eliminate any other
provisions hereof or thereof with respect to matters or questions
arising hereunder or thereunder that shall not be inconsistent with the
provisions hereof or thereof, or to add or amend any provision therein
in connection with permitting transfers of the Certificates or the
Notes; provided, HOWEVER, that any such action shall not, in the good
faith judgment of the parties hereto or thereto, adversely affect in
any material respect the interests of any Noteholders, any
Certificateholders, the 1999-A Indenture Trustee, the 1999-A Owner
Trustee or the Origination Trustee; or, as a condition to the
effectiveness of such amendment, the 1999-A Indenture Trustee and
the 1999-A Owner Trustee shall have received an Opinion of Counsel
to the effect that such action shall not adversely affect in any
material respect the interests of any Noteholders or any
Certificateholders; and PROVIDED, FURTHER that any amendment
eliminating the Reserve Fund or reducing the Reserve Fund
Requirement shall also require HTC LP and HTD LP to deliver to the
1999-A Owner Trustee an Opinion of Counsel to the effect that after
such amendment, for federal income tax purposes, the 1999-A
Securitization Trust will not be treated as an association taxable
as a corporation and the Notes should properly be characterized as
indebtedness that is secured by the assets of the 1999-A
Securitization Trust.
(b) This 1999-A Securitization Trust Agreement and the 1999-A
Securitization Documents may also be amended from time to time by the
respective parties hereto or thereto including with respect to (i)
changing the formula for determining the Reserve Fund Requirement and
changing the Reserve Fund Tests which change could result in a decrease
in the amount of the Reserve Fund Requirement, (ii) changing the manner
by which the Reserve Fund is funded, which changes could include
borrowings by HTC LP and HTD LP to fund all or a portion of the Reserve
Fund Initial Deposit (which borrowings would be payable from assets or
cash flow otherwise payable to HTC LP and HTD LP), (iii) changing the
remittance schedule for deposits in the 1999-A Note Distribution
Account and the 1999-A Certificate Distribution Account, or (iv)
changing the definition of "Eligible Investments", if either (A) the
1999-A Indenture Trustee has been furnished with confirmation (written
or oral) from each Rating Agency to the effect that such amendment
would not cause its then-current rating
50
of any Rated Notes to be qualified, reduced or withdrawn, or (B) the
1999-A Indenture Trustee has received the consent of the Noteholders
holding Notes representing more than 50% of the aggregate Voting
Interests, acting as a single Class, and the 1999-A Owner Trustee has
received the consent of the Certificateholders holding Certificates
representing more than 50% of the aggregate Voting Interests (which
consent of any Noteholder or Certificateholder given pursuant to this
Section 9.01(b) or pursuant to any other provision of this 1999-A
Securitization Trust Agreement shall be conclusive and binding on such
Noteholder or Certificateholder and on all future Noteholders or
Certificateholders of such Note and of any Note or Certificate issued
upon the transfer thereof or in exchange thereof, or in lieu thereof
whether or not notation of such consent is made upon the Note or
Certificate); PROVIDED, HOWEVER, that (1) any amendment eliminating the
Reserve Fund or reducing the Reserve Fund Requirement to less than
the lesser of the Reserve Fund Initial Deposit and the sum of the
Note Balance and the Certificate Balance as of the related
Distribution Date (after giving effect to reductions in the Note
Balance and Certificate Balance on such Distribution Date), shall
also require that the 1999-A Indenture Trustee and each Rating
Agency receive an Opinion of Counsel to the effect that, after such
amendment, for federal income tax purposes the Notes will properly
be characterized as indebtedness that is secured by the assets of
the 1999-A Securitization Trust; and (2) no such amendment shall (x)
except as otherwise provided in Section 9.01(a), increase or reduce
in any manner (i) the amount of, or accelerate or delay the timing
of, collections of payments on the 1999-A SUBI Interest, the 1999-A
SUBI Certificates or the Retained 1999-A SUBI Certificates, or
distributions that shall be required to be made on any Note or
Certificate or (ii) the applicable Note Rate or Certificate Rate or
(y) reduce the aforesaid percentage of the aggregate Voting Interest
of the Notes or the aggregate Voting Interest of the Certificates
required to consent to any such amendment, without the consent of
all of the Noteholders and all of the Certificateholders holding
Notes or Certificates, as applicable, then outstanding.
(c) The 1999-A Owner Trustee shall provide each Rating Agency
prior notice of any proposed amendment hereto and copies of an Opinion
of Counsel, if relevant, whether or not such amendment requires the
approval of the Rating Agency. Any notice of any such amendment or
modification as to which notice is required to be given to any Rating
Agency shall contain both the substance and substantial form of the
proposed amendment or modification.
(d) Promptly after the execution of any such amendment or
consent, the 1999-A Owner Trustee and the 1999-A Indenture Trustee
shall furnish written notification of the substance of such amendment
or consent to each Certificateholder and Noteholder, as the case may
be. It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to Section 9.01(b) 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 of evidencing the authorization by
Certificateholders or Noteholders of the execution thereof shall be
subject to such reasonable requirements as the 1999-A Owner Trustee may
prescribe.
51
(e) Prior to the execution of any amendment to this 1999-A
Securitization Trust Agreement, the 1999-A Indenture Trustee and the
1999-A 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 1999-A Securitization Trust Agreement
and that such amendment would not reasonably be expected to adversely
affect the federal income tax attributes of the Notes. The 1999-A
Indenture Trustee and the 1999-A Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the 1999-A
Indenture Trustee's or 1999-A Owner Trustee's, as the case may be, own
rights, duties or immunities under this 1999-A Securitization Trust
Agreement or otherwise.
Section 9.02 PROTECTION OF TITLE TO 1999-A SECURITIZATION TRUST.
(a) Each of HTC LP and HTD LP shall execute and file, or cause
to be executed and filed, such financing statements and such
continuation and other statements, all in such manner and in such
places as may be required by law fully to preserve, maintain and
protect the interests of the Certificateholders, the Noteholders, the
1999-A Owner Trustee and the 1999-A Indenture Trustee under this 1999-A
Securitization Trust Agreement in the 1999-A SUBI Interest, the 1999-A
SUBI Certificates, the Reserve Fund Property and the proceeds thereof.
Each of HTC LP and HTD LP shall deliver (or cause to be delivered) to
the 1999-A Owner Trustee and the 1999-A Indenture Trustee file-stamped
copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) Neither of HTC LP nor HTD LP shall change its name,
identity or partnership structure in any manner that would, could or
might make any financing statement or continuation statement filed by
HTC LP or HTD LP in accordance with Section 9.02(a) seriously
misleading within the meaning of Section 9-402(7) of the UCC unless it
shall have given the 1999-A Owner Trustee written notice thereof and
shall have promptly filed appropriate amendments to all previously
filed financing statements or continuation statements.
(c) Each of HTC LP and HTD LP shall give the 1999-A Owner
Trustee prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new
financing statement and shall promptly make any such filing.
(d) Each of HTC LP and HTD LP shall deliver to the 1999-A
Owner Trustee promptly after the execution and delivery of each
amendment to this 1999-A Securitization Trust Agreement, an Opinion of
Counsel either (i) stating that, in the opinion of such Counsel, all
financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of
the 1999-A Owner Trustee in the 1999-A SUBI Interest, and reciting the
details of such filings or referring to prior Opinions of Counsel in
which such details are given, or (ii) stating that, in the opinion of
such counsel, no such action is necessary to preserve and protect such
interest.
52
Section 9.03 LIMITATIONS ON RIGHTS OF OTHERS. Except for Section 2.07,
the provisions of this 1999-A Securitization Trust Agreement are solely for the
benefit of the 1999-A Owner Trustee, the Delaware Owner Trustee, HTC LP, HTD LP,
the Certificateholders, the Servicer, the 1999-A Indenture Trustee and the
Noteholders, and nothing in this 1999-A Securitization Trust Agreement (other
than Section 2.07), whether express or implied, shall be construed to give to
any other Person any legal or equitable right, remedy or claim in the 1999-A
Securitization Trust Estate or under or in respect of this 1999-A Securitization
Trust Agreement or any covenants, conditions or provisions contained herein.
Section 9.04 NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be delivered or mailed by registered or certified
first-class United States mail, postage prepaid, hand delivery, prepaid courier
service, or by telecopier, and addressed in each case as follows: (i) if to the
1999-A Indenture Trustee, at The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx
00X, Xxx Xxxx, Xxx Xxxx 00000 (telecopier no. (000) 000-0000), Attention:
Corporate Trust Department; (ii) if to the 1999-A Owner Trustee, at U.S. Bank
National Association, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000
(telecopier no. (000) 000-0000), Attention: Honda Auto Lease Trust 1999-A, (iii)
if to HTC LP, at 000 Xxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (telecopier no.
(000) 000-0000), Attention: General Partner, (iv) if to HTD LP, at 000 Xxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (telecopier no. (000) 000-0000) Attention:
General Partner, (v) if to the Delaware Owner Trustee, at Wilmington Trust
Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 (telecopier no. (000) 000-0000), (vi) if to Moody's, at Xxxxx'x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telecopier no. (212)
553-0573), Attention: ABS Monitoring Group; (vii) if to Standard & Poor's, at
Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (telecopier no. (000) 000-0000) Attention: Asset Backed Surveillance
Group; (viii) if to Fitch, to Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(telecopier no. (000) 000-0000) Attention: Asset-Backed Surveillance; or (ix) at
such other address as shall be designated by any of the foregoing in a written
notice to the other parties hereto. Delivery shall occur only upon receipt or
reported tender of such communication by an officer of the recipient entitled to
receive such notices located at the address of such recipient for notices
hereunder.
Section 9.05 SEVERABILITY OF PROVISIONS. Any provision of this 1999-A
Securitization Trust 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 9.06 COUNTERPARTS. This 1999-A Securitization Trust 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.
Section 9.07 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, HTC LP, HTD
LP, the 1999-A Owner Trustee, the Delaware Owner Trustee, the 1999-A Indenture
Trustee, the Certificateholders and the Noteholders and their respective
successors and permitted assigns, all to the extent herein
53
provided. Any request, notice, direction, consent, waiver or other instrument or
action by HTC LP, HTD LP, the Certificateholders and the Noteholders shall bind
the successors and assigns of HTC LP, HTD LP, such Certificateholders and such
Noteholders.
Section 9.08 NO RECOURSE. The Certificates entitle the holders thereof
to the rights and benefits set forth in this 1999-A Securitization Trust
Agreement and in the Certificates. The Certificates do not represent interests
in or obligations of the Servicer, HTC LP, HTD LP, the 1999-A Owner Trustee, the
1999-A Indenture Trustee or any Affiliate thereof (other than the 1999-A
Securitization Trust) and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this 1999-A
Securitization Trust Agreement, the Certificates or the 1999-A Securitization
Documents.
Section 9.09 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 9.10 GOVERNING LAW. THIS 1999-A SECURITIZATION TRUST AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE
(EXCEPT FOR THE PROVISIONS OF SECTION 3.04 HEREOF, WHICH SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK), WITHOUT REGARD TO
ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW.
Section 9.11 CERTIFICATES NONASSESSABLE AND FULLY PAID. Subject to
Section 2.07, the Certificateholders shall not be personally liable for
obligations of the 1999-A Securitization Trust. The interests represented by the
Certificates shall be nonassessable for any losses or expenses of the 1999-A
Securitization Trust or for any reason whatsoever, and, upon authentication
thereof pursuant to Sections 4.01 and 4.02, the Certificates shall be deemed
fully paid.
[Remainder of page intentionally left blank]
54
IN WITNESS WHEREOF, the parties have caused this 1999-A Securitization
Trust Agreement to be duly executed by their respective officers as of the day
and year first above written by its duly authorized officer.
HONDA TITLING C L.P.
By: HONDA TITLING C LLC,
its General Partner
By: HONDA FUNDING INC.,
as Manager
By: /S/ X.XXXXXX
---------------------------------------
Name: X. Xxxxxx
Title: President
HONDA TITLING D L.P.
By: HONDA TITLING D LLC,
its General Partner
By: HONDA FUNDING INC.,
as Manager
By: /S/ X.XXXXXX
---------------------------------------
Name: X. Xxxxxx
Title: President
S-1
U.S. BANK NATIONAL ASSOCIATION,
as Owner Trustee
By: /S/ XXXXXXXX X. CHILD
---------------------------------------
Name: Xxxxxxxx X. Child
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Residual Value Insurance Co-Trustee
By: /S/ XXXXXXXX X. CHILD
---------------------------------------
Name: Xxxxxxxx X. Child
Title: Vice President
WILMINGTON TRUST COMPANY, as Delaware Owner
Trustee
By: /S/ XXXXXXXX X. XXXXX
---------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Financial Services Officer
THE BANK OF NEW YORK, as Indenture Trustee
By: /S/ XXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
S-2
EXHIBIT A
THIS 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 AND MAY NOT BE RESOLD OR TRANSFERRED EXCEPT IN THE EVENT OF THE
DISSOLUTION, TERMINATION OR BANKRUPTCY OF [HONDA TITLING C L.P. /HONDA TITLING D
L.P.] WHEN IT IS HOLDER HEREOF AND ANY TRANSFER IN VIOLATION OF THIS PROVISION
SHALL BE NULL AND VOID.
HONDA AUTO LEASE TRUST 1999-A
FORM OF AUTO LEASE ASSET-BACKED CERTIFICATE
evidencing an undivided beneficial interest in the 1999-A Securitization Trust,
as defined below, the property of which includes, among other things, the 1999-A
SUBI Certificates (transferred pursuant to the 1999-A Securitization Trust
Agreement), collectively evidencing a 99.8% beneficial interest in the 1999-A
SUBI Assets. The property of the 1999-A Securitization Trust has been pledged to
the 1999-A Indenture Trustee pursuant to the Indenture to secure the payment of
the Notes issued thereunder.
This Certificate does not represent an interest in or obligation of
Honda Titling C L.P., Honda Titling D L.P., American Honda Finance Corporation,
the 1999-A Owner Trustee, the 1999-A Indenture Trustee, the Delaware Owner
Trustee or any of their respective Affiliates, except to the extent described
below.
THIS CERTIFIES THAT [HONDA TITLING C L.P. ("HTC LP")/HONDA TITLING D
L.P. ("HTD LP")] is the registered owner of a [99%/1%] equity interest in a
separate series designated as the "1999-A Note Securitization Trust" (the
"1999-A Note Securitization Trust") of the Honda Auto Lease Trust 1999-A (the
"1999-A Securitization Trust") formed by HTC LP and HTD LP. The 1999-A
Securitization Trust was created pursuant to the 1999-A Securitization Trust
Agreement dated as of July 1, 1999 (the "1999-A Securitization Trust
Agreement"), among HTC LP, HTD LP, U.S. Bank National Association ("U.S. Bank"),
a national banking association, as owner trustee (the "1999-A Owner Trustee"),
Wilmington Trust Company, a Delaware corporation, as Delaware owner trustee (the
"Delaware Owner Trustee"), and The Bank of New York, a New York banking
corporation, as indenture trustee (the "1999-A Indenture Trustee"). A summary of
certain of the pertinent provisions of the 1999-A Securitization Trust Agreement
is set forth below. To the extent not otherwise defined herein capitalized terms
used herein without definitions have the respective meanings assigned to them in
the Agreement of Definitions, dated as of July 1, 1999, by and among HVT, Inc.,
Delaware Trust Capital Management, Inc, American Honda Finance Corporation, U.S.
Bank, the Delaware Owner Trustee, the 1999-A Indenture Trustee, Honda Titling A
L.P., Honda Titling B L.P., Honda Titling C L.P. and Honda Titling D L.P.
This Certificate is issued under the 1999-A Securitization Trust
Agreement and designated as a "Honda Auto Lease Trust 1999-A Auto Lease Backed
Certificate" (a "Certificate"). This Certificate is issued under and is subject
to the terms, provisions and conditions of the 1999-A Securitization Trust
Agreement, to which 1999-A Securitization Trust
A-1
Agreement the holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound.
The property of the 1999-A Securitization Trust includes, among other
things, (i) the HTC LP 1999-A SUBI Certificate evidencing a 98.802% interest in
the 1999-A SUBI Assets, (ii) the HTD LP 1999-A SUBI Certificate evidencing a
0.998% interest in the 1999-A SUBI Assets, (iii) the amounts on deposit from
time to time in the 1999-A SUBI Accounts, (iv) rights as the third-party
beneficiary of the Servicing Agreement, the 1999-A Servicing Supplement, the
Origination Trust Agreement and the 1999-A SUBI Supplement and (v) all of the
proceeds of the foregoing. The rights of the 1999-A Securitization Trust in the
foregoing property (excluding any interest in the Residual Value Insurance
Policy or any other residual value insurance policy to the extent such interest
relates to the 1999-A Contracts and the 1999-A Leased Vehicles) have been
pledged by the 1999-A Owner Trustee to the 1999-A Indenture Trustee pursuant to
the Indenture to secure the payment of the Notes.
Payments in respect of the 1999-A SUBI Certificates will be allocated
between the Notes and the Certificates and paid to, among other recipients, the
registered holder of this Certificate as provided in the 1999-A Securitization
Trust Agreement.
The holder of this Certificate acknowledges and agrees that its rights
to receive payments in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the 1999-A Securitization Trust
Agreement and the Indenture, as applicable.
By accepting this Certificate, the holder hereof waives any claim to
any proceeds or assets of the Origination Trust other than those from time to
time included within the 1999-A SUBI Interest as 1999-A SUBI Assets.
It is the intention of [HTC LP/HTD LP], as the holder of this
Certificate, that the Notes will be indebtedness for federal, state and local
income and franchise tax purposes and for purposes of any other tax imposed on
or measured by income. The 1999-A Owner Trustee and [HTC LP/HTD LP], as the
holder of this Certificate, by acceptance of this Certificate, agree to treat
the Notes, for purposes of federal, state, and local income or franchise taxes
and any other tax imposed on or measured by income, as indebtedness and to
report the transactions contemplated by the 1999-A Securitization Trust
Agreement on all applicable tax returns in a matter consistent with such
treatment.
The holder of this Certificate, by accepting this Certificate,
covenants and agrees that prior to the date which is one year and one day after
the last date upon which (a) each Class of Notes and the Certificates have been
paid in full, and (b) all obligations due under any other Securitization have
been paid in full, it will not institute against, or join any other Person in
instituting against, the 1999-A Securitization Trust, HTA LP, HTB LP, HTC LP,
HTD LP, any general partner or member (as applicable) of a UTI Beneficiary or of
a Transferor which is a partnership or a limited liability company, the
Origination Trustee, the Origination Trust, any Special Purpose Affiliate, any
UTI Beneficiary, any Beneficiary, and any general partner or member (as
applicable) of a Beneficiary or of a Special Purpose Affiliate partnership (or
any of their respective general partners) that is a partnership or a limited
liability company, any
A-2
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceedings under any federal or state bankruptcy or similar law.
If, notwithstanding the statement of intentions and undertakings set
forth in Section 8.01 of the 1999-A Securitization Trust Agreement and herein,
it is finally determined that the Notes do not evidence indebtedness of HTC LP
and HTD LP for all income and franchise tax purposes, but rather represent
equity interests in the assets of the 1999-A Securitization Trust, then [HTC
LP/HTD LP], as holder hereof, agrees (i) to treat the Notes, together with this
Certificate, as representing an interest in a partnership for all tax purposes,
(ii) to treat all payments in respect of such Certificate (to the extent not a
return of capital) as a "guaranteed payment" thereon made pursuant to Section
707(c) of the Code, and (iii) to allocate losses to such Certificate only to the
extent required for the allocation of all other items of income, gain,
deduction, loss or credit with respect to the assets and operations of the
1999-A Securitization Trust to [HTC LP/HTD LP] to be respected for federal
income tax purposes.
This Certificate does not represent an obligation of, or an interest
in, HTC LP, HTD LP, the Servicer, the 1999-A Indenture Trustee, the 1999-A Owner
Trustee, the Origination Trust or any of their respective Affiliates, other than
the 1999-A Securitization Trust. This Certificate is limited in right of payment
to certain collections and recoveries respecting the 1999-A SUBI Interest, the
1999-A SUBI Certificates and certain monies on deposit in the Reserve Fund and
in certain other accounts, in each case to the extent and as more specifically
set forth in the 1999-A Securitization Trust Agreement. A copy of the 1999-A
Securitization Trust Agreement may be examined during normal business hours at
the Corporate Trust Office of the 1999-A Owner Trustee, and at such other places
in the United States, if any, designated by the 1999-A Owner Trustee, by the
Certificateholder upon request.
The 1999-A Securitization Trust Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the parties thereto and the rights of the
Certificateholder under the 1999-A Securitization Trust Agreement at any time by
HTC LP, HTD LP, the Servicer, the 1999-A Indenture Trustee and the 1999-A Owner
Trustee. In certain limited circumstances, the 1999-A Securitization Trust
Agreement may only be amended with the consent of Holders of Notes evidencing
more than 50% of the aggregate Percentage Interests of all Notes, voting
together as a single class.
As provided in the 1999-A Securitization Trust Agreement, this
Certificate shall be owned by [HTC LP/HTD LP] and may not be transferred.
The obligations and responsibilities created by the 1999-A
Securitization Trust Agreement and the 1999-A Securitization Trust created
thereby shall terminate upon the payment to Noteholders of all amounts required
to be paid to them pursuant to the 1999-A Securitization Trust Agreement and the
disposition of all property held as part of the 1999-A Securitization Trust. The
Servicer may at its option purchase the corpus of the 1999-A Securitization
Trust at a price specified in the 1999-A Securitization Trust Agreement, and
such purchase of the 1999-A SUBI, the Retained 1999-A SUBI Certificates and
other property of the 1999-A Securitization Trust will effect early retirement
of this Certificate; PROVIDED, HOWEVER, such right of purchase is exercisable
only on the Distribution Date following the last day of a Collection Period as
of which the sum of the Note Balance and the Certificate Balance shall be
A-3
less than or equal to ten percent (10%) of the sum of the Initial Note Balance
and the Initial Certificate Balance.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the 1999-A Owner Trustee, by manual
signature, this Certificate shall not entitle the Certificateholder hereof to
any benefit under the 1999-A Securitization Trust Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-4
IN WITNESS WHEREOF, the 1999-A Owner Trustee on behalf of the 1999-A
Securitization Trust and not in its individual capacity has caused this
Certificate to be duly executed by its duly authorized officer.
HONDA AUTO LEASE TRUST 1999-A
BY: U.S. Bank National Association,
as 1999-A Owner Trustee
By:
--------------------------------
Name:
Title:
1999-A OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
1999-A Securitization Trust Agreement.
U.S. Bank National Association,
as 1999-A Owner Trustee
By:
-------------------------------
Name:
Title:
A-5
EXHIBIT B
CERTIFICATE OF TRUST OF
HONDA AUTO LEASE TRUST 1999-A
B-1
