EXHIBIT 4.2
EXECUTION COPY
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AMERICAN HONDA RECEIVABLES CORP.,
as Depositor,
and
BANKERS TRUST (DELAWARE),
as Owner Trustee
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AMENDED AND RESTATED
TRUST AGREEMENT
Dated October 25, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE ONE
DEFINITIONS
Section 1.01. General Definitions........................................1
Section 1.02. Other Definitional Provisions..............................4
Section 1.03. Interpretive Provisions....................................4
ARTICLE TWO
ORGANIZATION
Section 2.01. Name.......................................................5
Section 2.02. Office.....................................................5
Section 2.03. Purposes and Powers........................................5
Section 2.04. Appointment of Owner Trustee...............................6
Section 2.05. Initial Capital Contribution of Owner Trust Estate.........6
Section 2.06. Declaration of Trust.......................................6
Section 2.07. Liability of Owners........................................7
Section 2.08. Title to Trust Property....................................7
Section 2.09. Situs of Issuer............................................7
Section 2.10. Representations and Warranties of the Depositor............7
ARTICLE THREE
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership..........................................9
Section 3.02. The Trust Certificates.....................................9
Section 3.03. Authentication and Delivery of Trust Certificates..........9
Section 3.04. Registration of Transfer and Exchange of Trust
Certificates............................................10
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates...11
Section 3.06. Persons Deemed Owners.....................................12
Section 3.07. Access to List of Certificateholders' Names and Addresses.12
Section 3.08. Maintenance of Office or Agency...........................12
Section 3.09. Appointment of Paying Agent...............................12
Section 3.10. Definitive Trust Certificates.............................13
Section 3.11. Repayment of Trust Certificates...........................13
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Owners with Respect to Certain Matters....13
Section 4.02. Action by Owners with Respect to Certain Matters..........14
Section 4.03. Action by Owners with Respect to Bankruptcy...............14
Section 4.04. Restrictions on Owners' Power.............................14
Section 4.05. Majority Control..........................................14
ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Trust Account............................15
Section 5.02. Application of Trust Funds................................15
Section 5.03. Method of Payment.........................................16
Section 5.04. No Segregation of Monies, No Interest.....................16
Section 5.05. Accounting and Reports to Owners, Internal Revenue
Service and Others......................................16
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority.........................................17
Section 6.02. General Duties............................................17
Section 6.03. Action Upon Instruction...................................17
Section 6.04. No Duties Except as Specified in this Agreement or
in Instructions.........................................18
Section 6.05. No Action Except Under Specified Documents or
Instructions............................................19
Section 6.06. Restrictions..............................................19
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties...........................19
Section 7.02. Furnishing of Documents...................................20
Section 7.03. Representations and Warranties............................20
Section 7.04. Reliance, Advice of Counsel...............................21
Section 7.05. Not Acting in Individual Capacity.........................21
Section 7.06. Owner Trustee Not Liable for Trust Certificates
or Receivables..........................................21
Section 7.07. Owner Trustee May Own Trust Certificates and Notes........22
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ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses.........................22
Section 8.02. Indemnification...........................................22
Section 8.03. Payments to the Owner Trustee.............................22
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement............................23
ARTICLE TEN
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee................24
Section 10.02. Resignation or Removal of Owner Trustee...................24
Section 10.03. Successor Owner Trustee...................................25
Section 10.04. Merger or Consolidation of Owner Trustee..................25
Section 10.05. Appointment of Co-Trustee or Separate Trustee.............26
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Supplements and Amendments................................27
Section 11.02. No Legal Title to Owner Trust Estate in Owner.............28
Section 11.03. Limitations on Rights of Others...........................28
Section 11.04. Notices...................................................29
Section 11.05. Severability..............................................29
Section 11.06. Separate Counterparts.....................................29
Section 11.07. Successors and Assigns....................................29
Section 11.08. No Petition...............................................29
Section 11.09. No Recourse...............................................29
Section 11.10. Headings..................................................30
Section 11.11. Governing Law.............................................30
Section 11.12. Trust Certificates Nonassessable and Fully Paid...........30
Section 11.13. Depositor Payment Obligation..............................30
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EXHIBITS
Exhibit A - Form of Trust Certificate....................................A-1
Exhibit B - Form of Seller Certificate...................................B-1
Exhibit C - Form of Investment Letter....................................C-1
Exhibit D - Form of Rule 144A Letter.....................................D-1
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This Amended and Restated Trust Agreement, dated October 25, 2000,
is between American Honda Receivables Corp., a California corporation, as
depositor (the "Depositor"), and Bankers Trust (Delaware), a Delaware banking
corporation, as trustee (the "Owner Trustee").
WHEREAS, Honda Auto Receivables 2000-1 Owner Trust has been created
pursuant to a trust agreement, dated as of October 11, 2000, between the
Depositor and the Owner Trustee (the "Initial Trust Agreement"); and
WHEREAS, the parties hereto are entering into this amended and
restated trust agreement pursuant to which, among other things, the Initial
Trust Agreement will be amended and restated and $46,755,487.15 aggregate
principal amount of Asset Backed Certificates will be issued;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. GENERAL DEFINITIONS. Whenever used herein, unless the
context otherwise requires, the following words and phrases shall have the
following meanings:
"ADMINISTRATION AGREEMENT" means the administration agreement, dated
as of October 1, 2000, among the Issuer, the Indenture Trustee, the Depositor
and AHFC, as amended or supplemented from time to time.
"ADMINISTRATOR" means AHFC, as Administrator under the
Administration Agreement, and its successors in such capacity.
"AGREEMENT" means this Amended and Restated Trust Agreement, as the
same may be amended and supplemented from time to time.
"AHFC" means American Honda Finance Corporation, and its successors.
"AHRC" means American Honda Receivables Corp., and its successors.
"APPLICANTS" shall have the meaning specified in Section 3.07.
"BENEFIT PLAN" means (i) an employee benefit plan (as such term is
defined in Section 3(3) of ERISA) that is subject to the provisions of Title
I of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii)
any entity whose underlying assets include plan assets by reason of a plan's
investment in the entity.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the
Delaware Code, 12 DEL.C. Section 3801 et seq., as the same may be amended
from time to time.
"CERTIFICATE BALANCE" means, with respect to any Trust Certificate,
the original certificate balance of such Trust Certificate minus all payments
on such Trust Certificate with respect to principal.
"CERTIFICATE DISTRIBUTION ACCOUNT" means the account established and
maintained as such pursuant to Section 5.01.
"CERTIFICATE OF TRUST" means the Certificate of Trust filed for the
Issuer pursuant to Section 3810(a) of the Business Trust Statute,
substantially in the form of Exhibit A to the Initial Trust Agreement.
"CERTIFICATE RATE" means the 6.670% per annum calculated on the
basis of a 360 day year of twelve 30 day months.
"CERTIFICATE REGISTER" and "CERTIFICATE REGISTRAR" means the
register maintained and the registrar (or any successor thereto) appointed
pursuant to Section 3.04.
"CERTIFICATEHOLDER" or "HOLDER" means a Person in whose name a Trust
Certificate is registered.
"CLOSING DATE" means October 25, 2000.
"CODE" means the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"COMMISSION" means the Securities and Exchange Commission, and its
successors.
"CORPORATE TRUST OFFICE" means, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at 0000
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, or at such other address
as the Owner Trustee may designate by notice to the Owners and, the
Depositor, or the principal corporate trust office of any successor Owner
Trustee at the address designated by such successor Owner Trustee by notice
to the Owners and the Depositor.
"DEPOSITOR" means AHRC in its capacity as depositor hereunder.
"DTC" means The Depository Trust Company, and its successors.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
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"EXPENSES" means all liabilities, obligations, losses, damages,
taxes, claims, actions and suits, and any and all reasonable out of pocket
costs, expenses and disbursements (including reasonable legal fees and
expenses) of any kind and nature whatsoever.
"INDEMNIFIED Parties" means the Owner Trustee and its successors,
assigns, agents and any co-trustee.
"INVESTMENT LETTER" means a letter delivered in connection with the
transfer of a Trust Certificate pursuant to Section 3.04(a), substantially in
the form of Exhibit C.
"ISSUER" means the Honda Auto Receivables 2000-1 Owner Trust, and
its successors.
"OPINION OF COUNSEL" means one or more written opinions of counsel,
who may be an employee of or counsel to the Seller, the Depositor or the
Servicer, which counsel shall be acceptable to the Indenture Trustee, the
Owner Trustee or each Rating Agency, as applicable.
"ORIGINAL CERTIFICATE BALANCE" means $46,755,487.15.
"OWNER" means each Holder of a Trust Certificate.
"OWNER TRUST ESTATE" means all right, title and interest of the
Issuer in and to the property and rights assigned to the Issuer pursuant to
Article Two of the Sale and Servicing Agreement, all funds on deposit from
time to time in the Accounts and the Certificate Distribution Account, all
other property of the Issuer from time to time, including any rights of the
Owner Trustee and the Issuer pursuant to the Sale and Servicing Agreement and
the Administration Agreement and all proceeds of the foregoing.
"OWNER TRUSTEE" means Bankers Trust (Delaware), a Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"PAYING AGENT" means any paying agent or co-paying agent appointed
pursuant to Section 3.09.
"PERCENTAGE INTEREST" means, as to any Trust Certificate, (i) the
original certificate balance for such Trust Certificate, as specified on the
face thereof, divided by (ii) the Original Certificate Balance; provided,
that in determining whether the Holders of the requisite portion or
percentage of the Trust Certificates have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
other Basic Document, Trust Certificates owned by the Issuer, any other
obligor upon the Certificates, the Seller, the Servicer or any Affiliate of
any of the foregoing Persons shall be disregarded and deemed to be excluded
from the Certificate Balance (unless such Persons own 100% of the Trust
Certificates), except that, in determining whether the Indenture Trustee and
Owner Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Trust Certificates
that the Indenture Trustee and the Owner Trustee know to be so owned shall be
so disregarded. Trust Certificates so owned that have been pledged in good
faith may be regarded
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as included in the Certificate Balance if the pledgee establishes to the
satisfaction of the Indenture Trustee or the Owner Trustee, as applicable,
the pledgee's right so to act with respect to such Trust Certificates and
that the pledgee is not the Issuer, any other obligor upon the Trust
Certificates, the Seller or any Affiliate of any of their respective
Affiliates.
"RECORD DATE" means, with respect to any Payment Date, the day
immediately preceding such Payment Date.
"REQUIRED RATING" means, with respect to any entity, that such
entity (or the parent of such entity) has a rating of at least BBB- by
Standard & Poor's and at least Baa3 by Moody's.
"RULE 144A LETTER" means a letter delivered in connection with the
transfer of a Trust Certificate pursuant to Section 3.04(a), substantially in
the form attached hereto as Exhibit D.
"SALE AND SERVICING AGREEMENT" means the sale and servicing
agreement, dated as of October 1, 2000, among the Issuer, the Depositor and
AHFC, as servicer, as amended or supplemented from time to time.
"SECRETARY OF STATE" means the Secretary of State of the State of
Delaware.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLER CERTIFICATE" means a certificate of transfer delivered in
connection with the transfer of a Trust Certificate pursuant to Section
3.04(a), substantially in the form of Exhibit B.
"TREASURY REGULATIONS" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"TRUST CERTIFICATE" means a certificate evidencing the beneficial
interest of an Owner in the Trust, substantially in the form of Exhibit A.
Section 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) Capitalized terms used herein that are not otherwise defined
have the meanings ascribed thereto in the Sale and Servicing Agreement or the
Indenture, as the case may be.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
Section 1.03. INTERPRETIVE PROVISIONS.
(a) For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, (i) terms
used herein include, as
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appropriate, all genders and the plural as well as the singular,
(ii) references to words such as "herein", "hereof" and the like
shall refer to this Agreement as a whole and not to any particular
part, article or section within this Agreement, (iii) references to
a section such as "Section 1.01" and the like shall refer to the
applicable Section of this Agreement, (iv) the term "include, and
all variations thereof shall mean "include without limitation", (v)
the term "or" shall include "and/or" and (vi) the term "proceeds"
shall have the meaning set forth in the applicable UCC.
(b) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto,
accounting terms not defined in this Agreement or in any such
certificate or other document, and accounting terms partly defined
in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent
that the definitions of accounting terms in this Agreement or in any
such certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
ARTICLE TWO
ORGANIZATION
Section 2.01. NAME. The trust created hereby shall be known as the
"Honda Auto Receivables 2000-1 Owner Trust", in which name the Owner Trustee
may conduct the business of the Issuer, make and execute contracts and other
instruments and xxx and be sued, to the extent herein provided.
Section 2.02. OFFICE. The office of the Issuer shall be in care of
the Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the Owners
and the Depositor.
Section 2.03. PURPOSES AND POWERS.
(a) The sole purpose of the Issuer is to conserve the Owner Trust
Estate and collect and disburse the periodic income therefrom for the use and
benefit of the Certificateholders, and in furtherance of such purpose to
engage in the following ministerial activities:
(i) to issue the Notes pursuant to the Indenture
and the Trust Certificates pursuant to this Agreement and to sell
the Notes and the Trust Certificates;
(ii) with the proceeds of the sale of the Notes
and the Trust Certificates, to purchase the Receivables, to fund the
Reserve Fund and the Yield Supplement Account, to pay the
organizational, start-up and transactional expenses of the
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Trust and to pay the balance to the Depositor pursuant to the Sale
and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage
and convey the Owner Trust Estate pursuant to the Indenture and to
hold, manage and distribute to the Owners pursuant to the Sale and
Servicing Agreement any portion of the Trust Estate released from
the Lien of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations
under the Basic Documents to which it is to be a party;
(v) to engage in those activities, including
entering into agreements, that are necessary to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic
Documents, to engage in such other activities as may be required in
connection with conservation of the Owner Trust Estate and the
making of distributions to the Owners and the Noteholders.
(b) The Issuer is hereby authorized to engage in the foregoing
activities. The Issuer shall not engage in any activities other than in
connection with the foregoing or other than as required or authorized by the
terms of this Agreement or the other Basic Documents.
Section 2.04. APPOINTMENT OF OWNER TRUSTEE. The Depositor hereby
appoints the Owner Trustee as trustee of the Issuer effective as of the date
hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
The Owner Trustee may engage, in the name of the Issuer or in its
own name on behalf of the Issuer, in the activities of the Issuer, make and
execute contracts on behalf of the Issuer and xxx on behalf of the Issuer.
Section 2.05. INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE.
The Depositor hereby sells, assigns, transfers, conveys and sets over to the
Owner Trustee, as of the date hereof, the sum of $ 1,000.00. The Owner
Trustee hereby acknowledges receipt in trust from the Depositor, as of the
date hereof, of the foregoing contribution, which shall constitute the
initial Owner Trust Estate and shall be deposited in the Certificate
Distribution Account. The Depositor shall pay organizational expenses of the
Issuer as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee.
Section 2.06. DECLARATION OF TRUST. The Owner Trustee hereby
declares that it will hold the Owner Trust Estate in trust upon and subject
to the conditions set forth herein for the sole purpose of conserving the
Owner Trust Estate and collecting and disbursing the periodic income
therefrom for the use and benefit of the Owners, subject to the obligations
of the Issuer under the Basic Documents. It is the intention of the parties
hereto that the Issuer constitute a business trust under the Business Trust
Statute and that this Agreement constitute the governing
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instrument of such business trust. It is the intention of the parties hereto
that, solely for income and franchise tax purposes, (i) so long as there is a
sole Owner, the Issuer shall be treated as a security arrangement, with the
assets of the Issuer being the Receivables and other assets held by the
Issuer, the owner of the Receivables being the sole Owner and the Notes being
non-recourse debt of the sole Owner and (ii) if there is more than one Owner,
the Issuer shall be treated as a partnership for income and franchise tax
purposes, with the assets of the partnership being the Receivables and other
assets held by the Issuer and with the partners of the partnership being the
Owners and the Notes being debt of the partnership. The parties agree that,
unless otherwise required by appropriate tax authorities, the Issuer will
file or cause to be filed annual or other necessary returns, reports and
other forms consistent with the characterization of the Issuer as provided in
the preceding sentence for such tax purposes. Effective as of the date
hereof, the Owner Trustee shall have all rights, powers and duties set forth
herein and in the Business Trust Statute for the sole purpose and to the
extent necessary to accomplish the purpose of the Issuer as set forth in
Section 2.03(a).
Section 2.07. LIABILITY OF OWNERS. The Owners shall be entitled to
the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the general corporation law of the
State of Delaware.
Section 2.08. TITLE TO TRUST PROPERTY. Legal title to the Owner
Trust Estate shall be vested at all times in the Issuer as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in
which case title shall be deemed to be vested in the Owner Trustee, a
co-trustee and/or a separate trustee, as the case may be.
Section 2.09. SITUS OF ISSUER. The Issuer will be located in the
State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Issuer shall be located in the states of Delaware or New York.
The Issuer shall not have any employees in any state other than Delaware;
provided, however, that nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of Delaware.
Payments will be received by the Issuer only in, and payments will be made by
the Issuer only from, the states of Delaware or New York. The only office of
the Issuer will be at the Corporate Trust Office.
Section 2.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of California,
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 the Receivables.
(b) The Depositor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of its
property or the conduct of its business shall require such qualifications.
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(c) The Depositor has the power and authority to execute and deliver
this Agreement and to carry out its terms; the Depositor has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Owner Trustee as part of the Owner Trust Estate and the
Depositor has duly authorized such sale and assignment and deposit to the
Issuer by all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the Depositor by
all necessary corporate action.
(d) This Agreement constitutes a legal, valid and binding obligation
of the Depositor, enforceable in accordance with its terms, except as such
enforceability may be subject to or limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation, fraudulent conveyance 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 in law.
(e) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, nor constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or bylaws of the Depositor, or conflict with or violate any of
the material terms or provisions of, or constitute (with or without notice or
lapse of time) a default under, any indenture, agreement or other instrument
to which the Depositor is a party or by which it is bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the
Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties; which breach, default,
conflict, lien or violation would have a material adverse effect on the
earnings, business affairs or business prospects of the Depositor.
(f) There are no proceedings or investigations pending or, to the
Depositor's knowledge, threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties: (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the issuance of the
Trust Certificates or the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or ruling
that might materially and adversely affect the performance by the Depositor
of its obligations under, or the validity or enforceability of, this
Agreement.
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ARTICLE THREE
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. INITIAL OWNERSHIP. Upon the formation of the Issuer by
the contribution by the Depositor pursuant to Section 2.05 and until the
issuance of the Trust Certificates, the Depositor shall be the sole
beneficiary of the Issuer.
Section 3.02. THE TRUST CERTIFICATES. The Trust Certificates shall
be issued in minimum denominations of $100,000 and integral multiples
thereof; provided, however, that one Trust Certificate may be issued in such
denomination as required to include any residual amount. The Trust
Certificates shall be executed by the Owner Trustee on behalf of the Issuer
by manual or facsimile signature of an authorized officer of the Owner
Trustee and shall have deemed to have been validly issued when so executed.
Trust Certificates bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures were affixed, authorized to sign
on behalf of the Owner Trustee, shall be validly issued and binding
obligations of the Issuer and entitled to the benefit of this Agreement,
notwithstanding that such individuals or any of them shall have ceased to be
so authorized prior to the authentication and delivery of such Trust
Certificates or did not hold such offices at the date of authentication and
delivery of such Trust Certificates.
A transferee of a Trust Certificate shall become a Certificateholder
and shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a Trust
Certificate duly registered in such transferee's name pursuant to Section
3.04.
Section 3.03. AUTHENTICATION AND DELIVERY OF TRUST CERTIFICATES. On
the Closing Date, the Owner Trustee shall cause to be authenticated and
delivered upon the order of the Depositor, in exchange for the Receivables
and the other assets of the Issuer, simultaneously with the sale, assignment
and transfer to the Issuer of the Receivables, and the constructive delivery
to the Owner Trustee of the Receivable Files and the other assets of the
Issuer, Trust Certificates duly authenticated by the Owner Trustee, in
authorized denominations equaling in the aggregate the Original Certificate
Balance and evidencing the entire ownership of the Issuer. No Trust
Certificate shall entitle its Holder to any benefit under this Agreement, or
be valid for any purpose, unless there shall appear on such Trust Certificate
a certificate of authentication substantially in the form set forth in
Exhibit A, executed by the Owner Trustee or its authenticating agent, by
manual signature; and such authentication shall constitute conclusive
evidence that such Trust Certificate shall have been duly authenticated and
delivered hereunder. All Trust Certificates shall be dated the date of their
authentication. Upon issuance, authentication and delivery pursuant to the
terms hereof, the Trust Certificates will be entitled to the benefits of this
Agreement. The authenticating agent of the Owner Trustee shall be Bankers
Trust Company. Whenever, in any Basic Document, a reference is made to
authentication by the Owner Trustee, such reference shall include
authentication by the authenticating agent.
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Section 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
CERTIFICATES.
(a) The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.08, a Certificate
Register in which, subject to such reasonable regulations as it may
prescribe, the Owner Trustee shall provide for the registration of Trust
Certificates and of transfers and exchanges of Trust Certificates as herein
provided. Bankers Trust Company is hereby appointed as initial Certificate
Registrar. Upon any resignation of the initial Certificate Registrar, the
Owner Trustee shall promptly appoint a successor thereto.
The Trust Certificates have not been registered under the Securities
Act or listed on any securities exchange. No transfer of a Trust Certificate
shall be made unless such transfer is made pursuant to an effective
registration statement under the Securities Act and any applicable state
securities laws or is exempt from the registration requirements under the
Securities Act and such state securities laws. In the event that a transfer
is to be made in reliance upon an exemption from the Securities Act and state
securities laws, in order to assure compliance with the Securities Act and
such laws, the Holder desiring to effect such transfer and such Holder's
prospective transferee shall each certify to the Issuer in writing the facts
surrounding the transfer in the form of a Seller Certificate and Investment
Letter or a Rule 144A Letter. Except in the case of a transfer as to which
the proposed transferee has provided a Rule 144A Letter, there shall also be
delivered to the Issuer an Opinion of Counsel that such transfer may be made
pursuant to an exemption from the Securities Act and an Opinion of Counsel or
memorandum of law that such transfer may be made pursuant to an exemption
from state securities laws, which Opinion(s) of Counsel and memorandum of law
shall not be an expense of the Issuer or the Owner Trustee. The Depositor
shall provide to any Holder of a Trust Certificate and any prospective
transferee designated by any such Holder, information regarding the Trust
Certificates and the Receivables and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Trust Certificate without registration
thereof under the Securities Act pursuant to the registration exemption
provided by Rule 144A. Each Holder of a Trust Certificate desiring to effect
such a transfer shall, and does hereby agree to, indemnify the Issuer, the
Owner Trustee and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with federal and state
securities laws. The Owner Trustee on behalf of the Issuer shall cause each
Trust Certificate to contain a legend in the form set forth on the form of
Trust Certificate attached hereto as Exhibit A.
(b) Upon surrender for registration of transfer of any Trust
Certificate at the office of the Certificate Registrar and subject to the
satisfaction of the preceding paragraph, the Owner Trustee shall execute,
authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Trust Certificates in authorized denominations
of a like aggregate original certificate balance dated the date of
authentication by the Owner Trustee or any authenticating agent; provided
that prior to such execution, authentication and delivery, the Owner Trustee
shall have received an Opinion of Counsel to the effect that the proposed
transfer will not cause the Issuer to be characterized, as an association (or
a publicly traded partnership) taxable as a corporation or alter the tax
characterization of the Notes for federal income tax purposes. At the option
of a Holder, Trust Certificates may be exchanged for other Trust Certificates
of authorized
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denominations of a like aggregate original certificate balance upon surrender
of the Trust Certificates to be exchanged at the office or agency maintained
pursuant to Section 3.08.
(c) At the option of a Certificateholder, Trust Certificates may
be exchanged for other Trust Certificates in authorized denominations of a
like aggregate original certificate balance upon surrender of the Trust
Certificates to be exchanged at the office of the Certificate Registrar.
Whenever any Trust Certificates are so surrendered for exchange, the Owner
Trustee on behalf of the Issuer shall execute, authenticate and deliver (or
shall cause its authenticating agent to authenticate and deliver) the Trust
Certificates that the Certificateholder making the exchange is entitled to
receive. Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or such Holder's attorney duly authorized in writing.
(d) No service charge shall be made for any registration of
transfer or exchange of Trust Certificates, but the Owner Trustee may require
payment of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer or exchange of Trust Certificates.
(e) The Trust Certificates may not be acquired by or for the
account of a Benefit Plan. By accepting and holding a Trust Certificate, the
Holder thereof shall be deemed to have represented and warranted that it is
not a Benefit Plan nor will it hold such Trust Certificate for the account of
a Benefit Plan.
(f) All Trust Certificates surrendered for registration of
transfer or exchange, if surrendered to the Issuer or any agent of the Owner
Trustee or the Issuer under this Agreement, shall be delivered to the Owner
Trustee and promptly cancelled by it, or, if surrendered to the Owner
Trustee, shall be promptly cancelled by it, and no Trust Certificates shall
be issued in lieu thereof except as expressly permitted by any of the
provisions of this Agreement. The Owner Trustee shall dispose of cancelled
Trust Certificates in accordance with its normal practice.
(g) The preceding provisions of this Section notwithstanding, the
Owner Trustee shall not make, and the Certificate Registrar shall not
register transfers or exchanges of, Trust Certificates for a period of 15
days preceding the due date for any payment with respect to the Trust
Certificates.
Section 3.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
CERTIFICATES. If (i) any mutilated Trust Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Trust Certificate and
(ii) there is delivered to the Certificate Registrar and the Owner Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice that such Trust Certificate has been
acquired by a bona fide purchaser, the Owner Trustee on behalf of the Issuer
shall execute and the Owner Trustee or its authenticating agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Certificate, a new Trust Certificate in an
authorized denomination and of a like original certificate balance. In
connection with the issuance of any new Trust Certificate under
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this Section, the Owner Trustee may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Certificate issued pursuant to this
Section shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust
Certificate shall be found at any time.
Section 3.06. PERSONS DEEMED OWNERS. Prior to due presentation of a
Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar, any Paying Agent and any of their respective agents
may treat the Person in whose name any Trust Certificate is registered as the
owner of such Trust Certificate for the purpose of receiving distributions
pursuant to Section 5.02 and for all other purposes whatsoever, and none of
the Owner Trustee, the Certificate Registrar, any Paying Agent or any of
their respective agents shall be affected by any notice to the contrary.
Section 3.07. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Owner Trustee shall furnish or cause to be furnished to the
Servicer and the Depositor, within 15 days after receipt by the Owner Trustee
of a written request therefor from the Servicer or the Depositor, a list, in
such form as the Servicer or the Depositor may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record
Date. If three or more Certificateholders, or one or more Certificateholders
evidencing not less than 51 % of the Percentage Interests of the Trust
Certificates (hereinafter referred to as the "Applicants"), apply in writing
to the Owner Trustee, and such application states that the Applicants desire
to communicate with other Certificateholders with respect to their rights
under this Agreement or under the Trust Certificates, then the Owner Trustee
shall, within five Business Days after the receipt of such application,
afford such Applicants access during normal business hours to the current
list of Certificateholders. Each Holder, by receiving and holding a Trust
Certificate, shall be deemed to have agreed not to hold any of the Depositor,
the Certificate Registrar or the Owner Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
Section 3.08. MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee
shall maintain in the Borough of Manhattan, The City of New York, an office
or offices or agency or agencies where Trust Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Owner Trustee in respect of the Trust Certificates and the Basic
Documents may be served. The Owner Trustee initially designates Bankers Trust
(Delaware) c/o Bankers Trust Company, 0 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx, as its office for such purposes. The
Owner Trustee shall give prompt written notice to the Depositor and to the
Certificateholders of any change in the location of the Certificate Register
or any such office or agency.
Section 3.09. APPOINTMENT OF PAYING AGENT. The Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Sections 5.02 and 5.03 and shall report the amounts of
such distributions to the Owner Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Certificate Distribution Account
for the purpose of making the distributions referred to above. The Owner
Trustee may revoke such power and remove the Paying Agent if the Owner
Trustee determines in its sole discretion that
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the Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect. The Paying Agent initially shall be
Bankers Trust Company, and any co-paying agent chosen by the Paying Agent
that is acceptable to the Owner Trustee. Each Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Owner Trustee.
In the event that Bankers Trust Company shall no longer be the Paying Agent,
the Owner Trustee shall appoint a successor to act as Paying Agent (which
shall be a bank or trust company). The Owner Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which
such successor Paying Agent or additional Paying Agent shall agree with the
Owner Trustee that, as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders.
The Paying Agent shall return all unclaimed funds to the Owner Trustee and
upon removal of a Paying Agent such Paying Agent shall also return all funds
in its possession to the Owner Trustee. The provisions of Sections 7.01,
7.03, 7.04 and 8.01 shall apply to the Owner Trustee also in its role as
Paying Agent, for so long as the Owner Trustee shall act as Paying Agent and,
to the extent applicable, to any other paying agent appointed hereunder. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
Section 3.10. DEFINITIVE TRUST CERTIFICATES. The Trust Certificates,
upon original issuance, will be issued in definitive, fully registered form.
Section 3.11. REPAYMENT OF TRUST CERTIFICATES. In the event of an
optional purchase pursuant to Section 8.01 (a) of the Sale and Servicing
Agreement, the Trust Certificates will be prepaid in whole, but not in part,
at an aggregate prepayment price equal to the aggregate Certificate Balance
of all the Trust Certificates plus accrued interest thereon at the
Certificate Rate.
ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. PRIOR NOTICE TO OWNERS WITH RESPECT TO CERTAIN
MATTERS. Subject to the provisions and limitations of Section 4.04, with
respect to the following matters, the Owner Trustee shall not take action
unless at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders in writing of the proposed action
and the Owners shall not have notified the Owner Trustee in writing prior to
the 30th day after such notice is given that such Owners have withheld
consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Issuer (except
claims or lawsuits brought in connection with the collection of the
Receivables) and the compromise of any action, claim or lawsuit brought by or
against the Issuer (except with respect to the aforementioned claims or
lawsuits for collection of the Receivables);
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(b) the election by the Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Business Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the Owners;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially
adversely affect the interests of the Owners; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, paying agent for the Notes or Indenture Trustee or pursuant to
this Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent, Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this
Agreement, as applicable.
Section 4.02. ACTION BY OWNERS WITH RESPECT TO CERTAIN MATTERS.
Subject to the provisions and limitations of Section 4.04, the Owner Trustee
shall not have the power, except upon the direction of the Owners, to (i)
remove the Administrator pursuant to Section 1.09 of the Administration
Agreement, (ii) appoint a successor Administrator pursuant to Section 1.09 of
the Administration Agreement, (iii) remove the Servicer pursuant to Section
7.02 of the Sale and Servicing Agreement, (iv) except as expressly provided
in the Basic Documents, sell the Receivables after the termination of the
Indenture, or (v) authorize the merger or consolidation of the Issuer with or
into any other business trust or entity (other than in accordance with
Section 3.10 of the Indenture). The Owner Trustee shall take the actions
referred to in the preceding sentence only upon written instructions signed
by the Owners.
Section 4.03. ACTION BY OWNERS WITH RESPECT TO BANKRUPTCY. The Owner
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Issuer without the unanimous prior approval of all
Owners (including the Depositor) and the delivery to the Owner Trustee by
each such Owner of a certificate certifying that such Owner reasonably
believes that the Issuer is insolvent.
Section 4.04. RESTRICTIONS ON OWNERS' POWER. The Owners shall not
direct the Owner Trustee to take or to refrain from taking any action if such
action or inaction would be contrary to any obligation of the Issuer or the
Owner Trustee under this Agreement or any of the other Basic Documents or
would be contrary to the purpose of the Issuer as set forth in Section 2.03,
nor shall the Owner Trustee be obligated to follow any such direction, if
given.
Section 4.05. MAJORITY CONTROL. Except as expressly provided herein,
any action that may be taken by the Owners under this Agreement may be taken
by the Holders of Trust Certificates evidencing not less than a majority of
the Percentage Interests evidenced by the
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Trust Certificates. Except as expressly provided herein, any written notice
of the Owners delivered pursuant to this Agreement shall be effective if
signed by Holders of Trust Certificates evidencing not less than a majority
of the Percentage Interests evidenced by the Trust Certificates at the time
of the delivery of such notice.
ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. ESTABLISHMENT OF TRUST ACCOUNT. The Owner Trustee, for
the benefit of the Certificateholders, shall establish and maintain in the
name of the Issuer an Eligible Account (the "Certificate Distribution
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders.
The Issuer shall possess all right, title and interest in funds on
deposit from time to time in the Certificate Distribution Account and in the
proceeds thereof. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and control
of the Owner Trustee for the benefit of the Certificateholders. If, at any
time, the Certificate Distribution Account ceases to be an Eligible Account,
the Owner Trustee (or the Depositor on behalf of the Owner Trustee, if the
Certificate Distribution Account is not then held by the Owner Trustee or an
Affiliate thereof) shall within ten Business Days (or such longer period, not
to exceed 30 calendar days, as to which each Rating Agency may consent)
establish a new Certificate Distribution Account as an Eligible Account and
shall transfer any cash and/or any investments to such new Certificate
Distribution Account. Monies on deposit in the Certificate Distribution
Account may be invested in Eligible Investments upon the terms set forth in
Section 4.01 of the Sale and Servicing Agreement, as if the Certificate
Distribution Account were an "Account". Earnings on investments of funds in
the Certificate Distribution Account shall be paid to the Servicer as part of
the Supplemental Servicing Fee and any losses and investment expenses shall
be charged against the funds in such account.
Section 5.02. APPLICATION OF TRUST FUNDS.
(a) On each Payment Date, the Owner Trustee will distribute to
Certificateholders, on the basis of the Percentage Interest evidenced by
their Trust Certificates, amounts deposited in the Certificate Distribution
Account pursuant to Section 4.06 of the Sale and Servicing Agreement with
respect to such Payment Date.
(b) On each Payment Date, the Owner Trustee shall send to each
Certificateholder the statement or statements provided to the Owner Trustee
by the Servicer pursuant to Section 4.10 of the Sale and Servicing Agreement
with respect to such Payment Date.
(c) In the event that any withholding tax is imposed on the
Issuer's payment (or allocations of income) to an Owner, such tax shall
reduce the amount otherwise distributable to the Owner in accordance with
this Section. The Owner Trustee is hereby authorized and directed to retain
from amounts otherwise distributable to the Owners sufficient funds for the
payment of any tax that is legally owed by the Issuer (but such authorization
shall not prevent
15
the Owner Trustee from contesting any such tax in appropriate proceedings and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to
an Owner shall be treated as cash distributed to such Owner at the time it is
withheld by the Issuer and remitted to the appropriate taxing authority. If
there is a possibility that withholding tax is payable with respect to a
distribution, the Owner Trustee may in its sole discretion withhold such
amounts in accordance with this paragraph (c).
Section 5.03. METHOD OF PAYMENT. Subject to Section 9.01(c)
respecting the final payment upon retirement of each Trust Certificate,
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the related Record Date
by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Payment Date, or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register.
Section 5.04. NO SEGREGATION OF MONIES; NO INTEREST. Subject to
Sections 5.01 and 5.02, monies received by the Owner Trustee hereunder need
not be segregated in any manner except to the extent required by law or the
Sale and Servicing Agreement and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
Section 5.05. ACCOUNTING AND REPORTS TO OWNERS, INTERNAL REVENUE
SERVICE AND OTHERS. The Owner Trustee shall maintain (or cause to be
maintained) the books of the Issuer on a fiscal year basis ending March 31 of
each year and the accrual method of accounting. In addition, the Issuer shall
deliver to each Owner such information, reports or statements as may be
required by the Code and applicable Treasury Regulations and as may be
required to enable each Owner to prepare its federal and state income tax
returns. Consistent with the Issuer's characterization for tax purposes, as a
security arrangement for the issuance of non-recourse debt, no federal income
tax return shall be filed on behalf of the Issuer unless either (i) the Owner
Trustee shall receive an Opinion of Counsel that, based on a change in
applicable law occurring after the date hereof, the Code requires such a
filing or (ii) the Internal Revenue Service shall determine that the Issuer
is required to file such a return. Notwithstanding the preceding sentence,
the Owner Trustee shall file Internal Revenue Service Form 8832 and elect for
the Issuer to be treated as a domestic eligible entity with a single owner
that is disregarded as a separate entity, which election shall remain in
effect so long as the Depositor or any other party is the sole Owner. In the
event that the Issuer is required to file tax returns, the Owner Trustee
shall prepare or shall cause to be prepared any tax returns required to be
filed by the Issuer and shall remit such returns to the Depositor (or if the
Depositor no longer owns any Certificates, the Owner designated for such
purpose by the Depositor to the Owner Trustee in writing) at least five days
before such returns are due to be filed. The Depositor (or such designee
Owner, as applicable) shall promptly sign such returns and deliver such
returns after signature to the Owner Trustee and such returns shall be filed
by the Owner Trustee with the appropriate tax authorities. In no event shall
the Owner Trustee or the Depositor (or such designee Owner, as applicable) be
liable for any liabilities, costs or expenses of the Issuer or the
Noteholders arising out of the application of any tax law,
16
including federal, state, foreign or local income or excise taxes or any
other tax imposed on or measured by income (or any interest, penalty or
addition with respect thereto or arising from a failure to comply therewith)
except for any such liability, cost or expense attributable to any act or
omission by the Owner Trustee or the Depositor (or such designee Owner, as
applicable), as the case may be, in breach of its obligations under this
Agreement.
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. GENERAL AUTHORITY. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Issuer is to
be a party and each certificate or other document attached as an exhibit to
or contemplated by the Basic Documents to which the Issuer is to be a party
and any amendment or other agreement, as evidenced conclusively by the Owner
Trustee's execution thereof. In addition to the foregoing, the Owner Trustee
is authorized, but shall not be obligated, to take all actions required of
the Issuer pursuant to the Basic Documents. The Owner Trustee is further
authorized from time to time to take such action as the Administrator
recommends with respect to the Basic Documents.
Section 6.02. GENERAL DUTIES. Subject to the provisions and
limitations of Sections 2.03 and 2.06, it shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement and the other Basic Documents to
which the Issuer is a party and to administer the Issuer in the interest of
the Owners, subject to the Basic Documents and in accordance with the
provisions of this Agreement. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the other Basic Documents to the extent the Administrator
has agreed in the Administration Agreement to perform any act or to discharge
any duty of the Owner Trustee hereunder or under any Basic Document, and the
Owner Trustee shall not be held liable for the default or failure of the
Administrator to carry out its obligations under the Administration Agreement.
Section 6.03. ACTION UPON INSTRUCTION.
(a) Subject to Article Four, in accordance with the terms of the
Basic Documents, the Owners may by written instruction direct the Owner
Trustee in the management of the Issuer. Such direction may be exercised at
any time by written instruction of the Owners pursuant to Article Four.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner Trustee or
is contrary to the terms hereof or of any other Basic Document or is
otherwise contrary to law.
17
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any other Basic Document, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate under the circumstances) to
the Owners requesting instruction as to the course of action to be adopted,
and to the extent the Owner Trustee acts in good faith in accordance with any
written instruction of the Owners received, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall
not have received appropriate instruction within ten days of such notice (or
within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action not inconsistent
with this Agreement and the other Basic Documents, as it shall deem to be in
the best interests of the Owners, and shall have no liability to any Person
for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any other Basic Document or
any such provision is ambiguous as to its application, or is, or appears to
be, in conflict with any other applicable provision, or in the event that
this Agreement permits any determination by the Owner Trustee or is silent or
is incomplete as to the course of action that the Owner Trustee is required
to take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Owners requesting instruction and, to the extent that the Owner Trustee acts
or refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action not inconsistent with this Agreement
or the other Basic Documents, as it shall deem to be in the best interests of
the Owners, and shall have no liability to any Person for such action or
inaction.
Section 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Owner Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Owner Trustee is a party, except as
expressly provided by the terms of this Agreement or in any document or
written instruction received by the Owner Trustee pursuant to Section 6.03;
and no implied duties or obligations shall be read into this Agreement or any
other Basic Document against the Owner Trustee. The Owner Trustee shall have
no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to prepare or
file any Commission filing for the Issuer or to record this Agreement or any
other Basic Document. The Owner Trustee nevertheless agrees that it will, at
its own cost and expense, promptly take all action as may be necessary to
discharge any liens (other than the lien of the Indenture) on any part of the
Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the
Owner Trust Estate.
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Section 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Owner Trust Estate except in
accordance with (i) the powers granted to and the authority conferred upon
the Owner Trustee pursuant to this Agreement, (ii) the Basic Documents and
(iii) any document or instruction delivered to the Owner Trustee pursuant to
Section 6.03.
Section 6.06. RESTRICTIONS. The Owner Trustee shall not take any
action (i) that is inconsistent with the purposes of the Issuer set forth in
Section 2.03 or (ii) that, to the actual knowledge of the Owner Trustee,
would result in the Issuer's becoming taxable as a corporation for federal or
state income tax purposes. The Owners shall not direct the Owner Trustee to
take action that would violate the provisions of this Section.
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
Section 7.01. ACCEPTANCE OF TRUSTS AND DUTIES. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts, but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of this Agreement
and the other Basic Documents. The Owner Trustee shall not be answerable or
accountable hereunder or under any other Basic Document under any
circumstances, except (i) for its own willful misconduct, bad faith or gross
negligence or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.03 expressly made by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of
judgment made in good faith by the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions
of the Administrator or any Owner or Owners;
(c) no provision of this Agreement or any other Basic Document
shall require the Owner Trustee to expend or risk funds or otherwise incur
any financial liability in the performance of any of its rights or powers
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any Basic Document, including the
principal of and interest on the Notes or the Trust Certificates;
(e) the Owner Trustee shall not be responsible for or in respect
of the validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor or for the form,
19
character, genuineness, sufficiency, value or validity of any of the Owner
Trust Estate, or for or in respect of the validity or sufficiency of the
Basic Documents, other than the certificate of authentication on the Trust
Certificates, and the Owner Trustee shall in no event assume or incur any
liability, duty or obligation to any Noteholder or to any Owner, other than
as expressly provided for in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Seller, the Depositor, the Indenture
Trustee or the Servicer under any Basic Document or otherwise, and the Owner
Trustee shall have no obligation or liability to perform the obligations of
the Issuer under this Agreement or the other Basic Documents that are
required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the Servicer or the
Seller under the Sale and Servicing Agreement or any other Person under any
of the Basic Documents; and
(g) the Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any other Basic Document, at the request, order
or direction of any of the Owners, unless such Owners have offered to the
Owner Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein or
thereby; the right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or in any other Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for other
than its gross negligence, bad faith or willful misconduct in the performance
of any such act.
Section 7.02. FURNISHING OF DOCUMENTS.
The Owner Trustee shall furnish to the Owners, promptly upon receipt
of a written request therefor, duplicates or copies of all reports, notices,
requests, demands, certificates, financial statements and any other
instruments furnished to the Owner Trustee under the Basic Documents.
Section 7.03. REPRESENTATIONS AND WARRANTIES. The Owner Trustee
hereby represents and warrants to the Depositor and the Owners, that:
(a) it is a Delaware banking corporation duly organized and
validly existing in good standing under the laws of the State of Delaware; it
has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement;
(b) it has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf; and
(c) neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby, nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or
20
regulation governing the banking or trust powers of the Owner Trustee or any
judgment or order binding on it, or constitute any default under its charter
documents or bylaws.
Section 7.04. RELIANCE, ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it
to be genuine and believed by it to be signed by the proper party or parties.
The Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of
determination of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized
officers of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to the Owner Trustee, for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this Agreement and the
other Basic Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by
the Owner Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled persons to be selected with reasonable care and
employed by it. The Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written
opinion or advice of any such counsel, accountants or other such persons and
not contrary to this Agreement or any other Basic Document.
Section 7.05. NOT ACTING IN INDIVIDUAL CAPACITY. Except as otherwise
provided in this Article, in accepting the trusts hereby created Bankers
Trust (Delaware) acts solely as Owner Trustee hereunder and not in its
individual capacity, and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Agreement or any
other Basic Document shall look only to the Owner Trust Estate for payment or
satisfaction thereof.
Section 7.06. OWNER TRUSTEE NOT LIABLE FOR TRUST CERTIFICATES OR
RECEIVABLES. The recitals contained herein and in the Trust Certificates
(other than the signature of the Owner Trustee and the certificate of
authentication on the Trust Certificates) shall be taken as the statements of
the Depositor, and the Owner Trustee assumes no responsibility for the
correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, any other Basic Document or the
Trust Certificates (other than the signature of the Owner Trustee and the
certificate of authentication on the Trust Certificates and the
representations and warranties in Section 7.03) or the Notes, or of any
Receivable or related documents. The Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Receivable, or the perfection and priority of any
security interest created by any Receivable in any Financed Vehicle or the
maintenance of any such perfection and priority, or for or with respect to
the sufficiency of the
21
Owner Trust Estate or its ability to generate the payments to be distributed
to Certificateholders under this Agreement or the Noteholders under the
Indenture, including, without limitation, the existence, condition and
ownership of any Financed Vehicle; the existence and enforceability of any
insurance thereon; the existence and contents of any Receivable on any
computer or other record thereof; the validity of the assignment of any
Receivable to the Issuer or of any intervening assignment; the completeness
of any Receivable; the performance or enforcement of any Receivable; the
compliance by the Depositor or the Servicer with any warranty or
representation made under any Basic Document or in any related document or
the accuracy of any such warranty or representation, or any action of the
Administrator, the Indenture Trustee or the Servicer or any subservicer taken
in the name of the Owner Trustee.
Section 7.07. OWNER TRUSTEE MAY OWN TRUST CERTIFICATES AND NOTES.
The Owner Trustee in its individual or any other capacity may become the
owner or pledgee of Trust Certificates or Notes and may deal with the
Depositor, the Administrator, the Indenture Trustee and the Servicer in
banking transactions with the same rights as it would have if it were not
Owner Trustee.
ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
Section 8.01. OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have
been separately agreed upon before the date hereof between the Depositor and
the Owner Trustee, and upon the formation of the Issuer, the Owner Trustee
shall be entitled to be reimbursed by the Issuer for its other reasonable
expenses hereunder, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the
Owner Trustee may employ in connection with the exercise and performance of
its rights and its duties hereunder.
Section 8.02. INDEMNIFICATION. The Issuer shall be liable as primary
obligor for, and shall indemnify the Indemnified Parties from and against,
any and all Expenses which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any other Indemnified Party in any way
relating to or arising out of this Agreement, the other Basic Documents, the
Owner Trust Estate, the administration of the Owner Trust Estate or the
action or inaction of the Owner Trustee or any other Indemnified Party
hereunder, except only that the Issuer shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or resulting
from any of the matters described in the third sentence of Section 7.01. The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. In the
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section, the Owner Trustee's choice of legal counsel shall
be subject to the approval of the Depositor (or if the Depositor is no longer
an owner, the designee of the Depositor), which approval shall not be
unreasonably withheld.
Section 8.03. PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid to the
Owner Trustee pursuant to this Article shall be deemed not to be a part of
the Owner Trust Estate immediately
22
after such payment. Any amounts owing to the Owner Trustee under this
Agreement or the other Basic Documents shall constitute a claim against the
Owner Trust Estate.
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. TERMINATION OF TRUST AGREEMENT.
(a) This Agreement (other than Article Eight) and the Issuer shall
terminate and be of no further force or effect upon the earlier to occur of
(i) the purchase on any Payment Date by the Seller or the Servicer, or any
successor Servicer, at its option, pursuant to Section 8.01(a) of the Sale
and Servicing Agreement, of the Owner Trust Estate other than the Accounts
and the Certificate Distribution Account, (ii) the final distribution by the
Owner Trustee of all monies or other property or proceeds of the Owner Trust
Estate in accordance with the terms of the Indenture, the Sale and Servicing
Agreement and Article Five or (iii) the Payment Date next succeeding the
month which is one year after the maturity or other liquidation of the last
Receivable and the disposition of any amount received upon liquidation of any
property remaining in the Owner Trust Estate. The bankruptcy, liquidation,
dissolution, death or incapacity of any Owner shall not (i) operate to
terminate this Agreement or the Issuer, (ii) entitle such Owner's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of
the Issuer or Owner Trust Estate or (iii) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither of the
Depositor nor any Owner shall be entitled to revoke or terminate the Issuer.
(c) The outstanding Trust Certificates are subject to redemption
in whole, but not in part, pursuant to Section 8.01 of the Sale and Servicing
Agreement; provided that the Issuer has available funds sufficient to pay the
aggregate Certificate Balance of all the Trust Certificates, together with
accrued interest at the Certificate Rate to but excluding the Payment Date.
Notice of any termination of the Issuer, specifying the Payment Date upon
which Certificateholders shall surrender their Trust Certificates to the
Paying Agent for payment of the final distribution and cancellation, shall be
given by the Owner Trustee by letter to Certificateholders mailed within five
Business Days of receipt of notice of such termination from the Servicer
given pursuant to Section 8.01(b) of the Sale and Servicing Agreement,
stating (i) the Payment Date upon or with respect to which final payment of
the Trust Certificates shall be made upon presentation and surrender of the
Trust Certificates at the office of the Paying Agent in The City of New York
therein designated, (ii) the amount of any such final payment and (iii) that
the Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Trust
Certificates at the office of the Paying Agent therein specified. The Owner
Trustee shall give such notice to the Certificate Registrar (if other than
the Owner Trustee) and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Trust
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Payment Date
23
pursuant to Section 5.02. The Owner Trustee shall promptly notify each Rating
Agency upon the final payment of the Trust Certificates.
(d) In the event that all of the Certificateholders shall not
surrender their Trust Certificates for cancellation within six months after
the date specified in the above mentioned written notice, the Owner Trustee
shall give a second written notice to the remaining Certificateholders to
surrender their Trust Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
all the Trust Certificates shall not have been surrendered for cancellation,
the Owner Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Trust Certificates, and the cost thereof shall be paid out
of the funds and other assets that shall remain subject to this Agreement.
Subject to applicable escheat laws, any funds remaining in the Issuer after
exhaustion of such remedies shall be distributed by the Owner Trustee to the
Depositor, in its capacities as Depositor and as Holder of such Certificate.
(e) Upon the winding up of the Issuer and its termination, the
Owner Trustee shall cause the Certificate of Trust to be cancelled by filing
a certificate of cancellation with the Secretary of State in accordance with
Section 3810 of the Business Trust Statute.
ARTICLE TEN
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 10.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times (i) be a corporation satisfying the provisions of
Section 3807(a) of the Business Trust Statute, (ii) be authorized to exercise
corporate trust powers, (iii) have a combined capital and surplus of at least
$50,000,000, (iv) be subject to supervision or examination by federal or
state authorities and (v) have the Required Rating. If such corporation shall
publish reports of condition at least annually pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Owner Trustee shall resign immediately in the
manner and with the effect specified in Section 10.02.
Section 10.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner
Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Administrator. Upon receiving
such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Owner Trustee and one
copy to the successor Owner Trustee. If no successor Owner Trustee shall have
been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may
petition at the Issuer's expense any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
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If at any time the Owner Trustee shall cease to be eligible in
accordance with Section 10.01 and shall fail to resign after written request
therefor by the Administrator, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator may remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee, and shall pay all fees and
expenses owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.03 and payment of all fees and expenses
owed to the outgoing Owner Trustee. The Administrator shall provide notice of
such resignation or removal of the Owner Trustee to each Rating Agency.
Section 10.03. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become
effective, and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement and the
Administrator and the predecessor Owner Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Owner Trustee all
such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Administrator shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and each Rating
Agency. If the Administrator shall fail to mail such notice within ten days
after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense
of the Administrator.
Section 10.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, without
25
the execution or filing of any instrument or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such corporation shall be eligible pursuant to Section 10.01
and, provided, further, that the Owner Trustee shall mail notice of such
merger or consolidation to each Rating Agency.
Section 10.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate or any Financed Vehicle may at the time be
located, the Administrator and the Owner Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or
more Persons approved by the Administrator and Owner Trustee to act as
co-trustee, jointly with the Owner Trustee, or as separate trustee or
separate trustees, of all or any part of the Owner Trust Estate, and to vest
in such Person, in such capacity, such title to the Trust or any part thereof
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Owner Trustee may
consider necessary or desirable. If the Administrator shall not have joined
in such appointment within 15 days after the receipt by it of a request so to
do, the Owner Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor Owner Trustee pursuant to Section
10.01, except that such co-trustee or successor trustee shall have the
Required Rating, and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Owner Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Owner Trust Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement; and
(c) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee,
upon its
26
acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Owner Trustee. Each such instrument shall be
filed with the Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. SUPPLEMENTS AND AMENDMENTS.
(a) This Agreement may be amended by the parties hereto with prior
written notice to each Rating Agency, without the consent of any
Securityholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions in this
Agreement or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time by the
parties hereto, with prior written notice to each Rating Agency, with the
consent of the Holders of Trust Certificates evidencing not less than a
majority of the Percentage Interests evidenced by the Trust Certificates and,
if such amendment materially and adversely affects the interests of the
Noteholders, with the consent of Holders (as such term is defined in the
Indenture) of Notes evidencing not less than a majority of the Outstanding
Amount of the Notes, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall
be required to be made for the benefit of the Noteholders or the
Certificateholders, (ii) increase or reduce any Interest Rate or Certificate
Rate or (iii) reduce the aforesaid percentage of the Outstanding Amount of
the Notes or of the Percentage Interests evidenced by the Trust Certificates
required to consent to any such amendment, without the consent of the Holders
of all the outstanding Notes and Trust Certificates affected thereby.
27
(c) Prior to the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Indenture Trustee, the Administrator and each
Rating Agency.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder. It shall not be necessary for
the consent of Certificateholders, Noteholders or the Indenture Trustee
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of Certificateholders provided for in this Agreement or in any
other Basic Document) and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such
amendment with the Secretary of State.
(f) In connection with the execution of any amendment to this
Agreement or any other basic Document to which the Issuer is a party and for
which amendment the Owner Trustee's consent is sought, the Owner Trustee
shall be entitled to receive and rely upon an Opinion of Counsel to the
effect that the execution of such amendment is authorized or permitted by
this Agreement or such other Basic Document, as the case may be, and that all
conditions precedent in this Agreement or such other Basic Document, as the
case may be, for the execution and delivery thereof by the Issuer or the
Owner Trustee, as the case may be, have been satisfied. The Owner Trustee
may, but shall not be obligated to, enter into any such amendment that
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 11.02. NO LEGAL TITLE TO OWNER TRUST ESTATE IN OWNER. The
Owner shall not have legal title to any part of the Owner Trust Estate. The
Owners shall be entitled to receive distributions with respect to their
undivided ownership interest therein only in accordance with Articles Five
and Nine. No transfer, by operation of law or otherwise, of any right, title
or interest of the Owners to and in their ownership interest in the Owner
Trust Estate shall operate to terminate this Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it
of legal title to any part of the Owner Trust Estate.
Section 11.03. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of
this Agreement are solely for the benefit of the Owner Trustee, the
Indemnified Parties, the Depositor, the Owners, the Administrator and, to the
extent expressly provided herein, the Indenture Trustee and the Noteholders,
and nothing in this Agreement, whether express or implied, shall be construed
to give to any other Person any legal or equitable right, remedy or claim in
the Owner Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
28
Section 11.04. NOTICES.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all demands, notices and communications under this Agreement shall be
in writing, personally delivered, mailed by certified mail, return receipt
requested, or sent via facsimile transmission (followed by hard copy by
overnight delivery) and shall be deemed to have been duly given upon receipt
(i) in the case of the Owner Trustee, at the Corporate Trust Office, with a
copy to: Bankers Trust Company, 0 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxx Xxxxxxx, (ii) in the case of the Depositor, to
American Honda Receivables Corp., 000 Xxx Xxxx Xxxxxx, Xxxxxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: President or (iii) as to either party,
at such other address as shall be designated by such party in a written
notice to the other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder
receives such notice.
Section 11.05. SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other covenants, agreements, provisions or terms of
this Agreement or of the Trust Certificates or the rights of the Holders
thereof.
Section 11.06. SEPARATE COUNTERPARTS. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 11.07. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the Depositor and its permitted assigns, the Owner Trustee and its successors
and each Owner and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or action by an Owner shall bind the successors and assigns of such Owner.
Section 11.08. NO PETITION. The Owner Trustee, by entering into this
Agreement, each Certificateholder, by accepting a Trust Certificate, and the
Indenture Trustee and each Noteholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Depositor or the Issuer, or join in any institution against the
Depositor or the Issuer of, any bankruptcy proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating tot he Trust Certificates, the Notes, this Agreement or
any other Basic Document.
Section 11.09. NO RECOURSE. Each Certificateholder by accepting a
Trust Certificate acknowledges that such Certificateholder's Trust
Certificates represent beneficial interests in the
29
issuer only and do not represent interests in or obligations of the
Depositor, the Seller, the Servicer, the Administrator, the Owner Trustee,
the Indenture Trustee or any of their respective Affiliates and no recourse
may be had against such parties or their assets, except as may be expressly
set forth or contemplated in the Trust Certificates, this Agreement or any
other Basic Document.
Section 11.10. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 11.11. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Delaware, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
Section 11.12. TRUST CERTIFICATES NONASSESSABLE AND FULLY PAID.
Certificateholders shall not be personally liable for obligations of the
Issuer. The interests represented by the Trust Certificates shall be
nonassessable for any losses or expenses of the Issuer or for any reason
whatsoever, and, upon the authentication thereof by the Owner Trustee
pursuant to Section 3.03, 3.04 or 3.05, the Trust Certificates are and shall
be deemed fully paid.
Section 11.13. DEPOSITOR PAYMENT OBLIGATION. The Depositor shall be
responsible for payment of the Administrator's compensation under the
Administration Agreement and shall reimburse the Administrator for all
expenses and liabilities of the Administrator incurred thereunder. In
addition, the Depositor shall be responsible for the payment of all fees and
expenses of the Issuer and the Trustees paid by any of them in connection
with any of their obligations under the Basic Documents to obtain or maintain
any required license under the Pennsylvania Motor Vehicle Sales Finance Act.
30
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed by their respective officers as
of the day and year first above written.
AMERICAN HONDA RECEIVABLES CORP.,
as Depositor
By: /s/ X. Xxxxxx
----------------------------------
Name: X. Xxxxxx
Title: President
BANKERS TRUST (DELAWARE),
not in its individual capacity but
solely as Owner Trustee
By: /s/ M. Xxxx Xxxxxxx
----------------------------------
Name: M. Xxxx Xxxxxxx
Title: Assistant Vice President
EXHIBIT A
FORM OF TRUST CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM. IN ADDITION, THE TRANSFER OF
THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH
IN SECTION 3.04 OF THE TRUST AGREEMENT UNDER WHICH THIS CERTIFICATE ISSUED (A
COPY OF WHICH TRUST AGREEMENT IS AVAILABLE FROM THE OWNER TRUSTEE UPON
REQUEST), INCLUDING RECEIPT BY THE OWNER TRUSTEE OF AN INVESTMENT LETTER IN
WHICH THE TRANSFEREE MAKES CERTAIN REPRESENTATIONS.
NUMBER-1 Initial Certificate Balance: _____
HONDA AUTO RECEIVABLES 2000-1 OWNER TRUST
6.670% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Issuer, as defined below,
the property of which includes a pool of retail installment sale or
conditional sale contracts secured by new and used Honda and Acura motor
vehicles.
(This Trust Certificate does not represent an interest in or
obligation of American Honda Receivables Corp., American Honda Finance
Corporation or any of their respective affiliates.)
THIS CERTIFIES THAT ____________________________ is the registered
owner of a 100 percent nonassessable, fully-paid, undivided interest in the
Honda Auto Receivables 2000-1 Owner Trust (the "Issuer"), formed by American
Honda Receivables Corp., a California corporation (the "Depositor").
The Issuer was created pursuant to a Trust Agreement dated as of
October __, 2000, as amended and restated by an Amended and Restated Trust
Agreement dated as of October 25, 2000 (as amended or supplemented from time
to time, the "Trust Agreement"), between the Depositor and Bankers Trust
(Delaware), as owner trustee (the "Owner Trustee"), a summary of certain of
the pertinent provisions of which is set forth below. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed
thereto in the Trust Agreement.
This Trust Certificate is one of the duly authorized certificates
designated as "Asset Backed Certificates" (the "Trust Certificates"). Issued
under an Indenture dated as of October 1, 2000 (the "Indenture"), between the
Issuer and U.S. Bank National Association, as indenture trustee, are four
classes of Notes designated as "Class A-1 6.71125% Asset Backed Notes,"
"Class A-2 6.650% Asset Backed Notes", "Class A-3 6.620% Asset Backed Notes"
and "Class A-4 6.670% Asset Backed Notes" (collectively, the "Notes"). This
Trust Certificate is issued under and is subject to terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of
this Trust Certificate, by virtue of its acceptance thereof, assents and by
A-1
which such Holder is bound. The property of the Issuer includes, among other
things, a pool of retail installment sale or conditional sale contracts for
new and used Honda and Acura motor vehicles (collectively, the
"Receivables"), all monies received on or in respect of the Receivables on or
after October 1, 2000, security interests in the vehicles financed thereby,
certain bank accounts and the proceeds thereof, proceeds from claims on
certain insurance policies and certain other rights under the Trust Agreement
and the Sale and Servicing Agreement and all proceeds of the foregoing.
It is the intent of the Depositor, the Servicer and the
Certificateholders that, for purposes of federal income, state and local
income tax and any other income taxes, the Issuer will be treated as a
security arrangement for the issuance of debt by the sole Certificateholders.
The purchaser hereof, by acceptance of the Trust Certificates, agrees to
treat, and to take no action inconsistent with the above treatment for so
long as it is the sole Owner.
Solely in the event the Trust Certificates are held by more than a
single Owner, it is the intent of the Depositor, the Servicer and the
Certificateholders that, for purposes of federal income, state and local
income and single business tax and any other income taxes, the Issuer will be
treated as a partnership and the Certificateholders will be treated as
partners in the partnership. The purchaser hereof and the other
Certificateholders, by acceptance of a Trust Certificate, agree to treat, and
to take no action inconsistent with the treatment of, the Trust Certificates
for such tax purposes as partnership interests in the Issuer.
Each Certificateholder, by its acceptance of a Trust Certificate,
covenants and agrees that such Certificateholder will not at any time
institute against the Depositor, or join in any institution against the
Depositor of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings , or other proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Trust Certificates, the Notes, the Trust Agreement or any
other Basic Document.
Distributions on this Trust Certificate will be made as provided in
the Trust Agreement by the Owner Trustee by wire transfer or check mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Trust Certificate or the making of any
notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Trust Certificate
will be made after due notice by the Owner Trustee of the pendency of such
distribution and only upon presentation and surrender of this Trust
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Trust Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement or the Sale and Servicing Agreement or be valid for
any purpose.
A-2
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and
not in its individual capacity, has caused this Trust Certificate to be duly
executed.
HONDA AUTO RECEIVABLES 2000-1 OWNER
TRUST
By: BANKERS TRUST (DELAWARE),
not in its individual capacity
but solely as Owner Trustee
By:
----------------------------------
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the
within-mentioned Trust Agreement.
Bankers Trust (Delaware), not OR Bankers Trust (Delaware),
in its individual capacity but as Owner Trustee
solely as Owner Trustee
By: By: , as
------------------------------ -------------------------------
Authorized Signatory Authenticating Agent
By:
-----------------------------------
Authorized Signatory
A-3
[REVERSE OF TRUST CERTIFICATE]
The Trust Certificates do not represent an obligations of, or an
interest in, the Depositor, the Servicer, the Owner Trustee or any of their
respective affiliates and no recourse may be had against such parties or
their assets, except as expressly set forth or contemplated herein or in the
Trust Agreement or the other Basic Documents. In addition, this Trust
Certificate is not guaranteed by any governmental agency or instrumentality
and is limited in right of payment to certain collections and recoveries with
respect to the Receivables (and certain other amounts), all as more
specifically set forth herein and in the Sale and Servicing Agreement. A copy
of each of the Sale and Servicing Agreement and the Trust Agreement may be
examined by any Certificateholder upon written request during normal business
hours at the principal officer of the Depositor and at such other places, if
any, designated by the Depositor.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under
the Trust Agreement at any time by the parties thereto with the consent of
the Holders of the Trust Certificates and the Notes, each voting as a class,
evidencing not less than a majority of the Percentage Interests evidenced by
the outstanding Trust Certificates, or a majority of the outstanding
principal balance of the Notes of each such class. Any such consent by the
Holder of this Trust Certificate shall be conclusive and binding on such
Holder and on all future Holders of this Trust Certificate and of any Trust
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent is made upon this Trust
Certificate. The Trust Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of
the Trust Certificates.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Trust Certificate is
registrable in the Certificate Register upon surrender of this Trust
Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained by the Owner Trustee in the Borough of
Manhattan, The City of New York, accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Trust Certificates
evidencing the same original certificate balance in the Issuer will be issued
to the designated transferee. The initial Certificate Registrar appointed
under the Trust Agreement is Bankers Trust Company, 0 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx.
Except as provided in the Trust Agreement, the Trust Certificates
are issuable only as registered Trust Certificates. As provided in the Trust
Agreement and subject to certain limitations therein set forth, Trust
Certificates are exchangeable for new Trust Certificates evidencing the same
aggregate original certificate balance, as requested by the Holder
surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the Person in whose name
this Trust Certificate is registered as
A-4
the owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Registrar or any such agent shall be affected by any notice to
the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Issuer created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Sale and Servicing Agreement and the disposition of
all property held as part of the Owner Trust Estate. The Servicer of the
Receivables may at its option purchase the Owner Trust Estate at a price
specified in the Sale and Servicing Agreement, and such purchase of the
Receivables and other property of the Issuer will effect early retirement of
the Trust Certificates; provided, however, such right of purchase is
exercisable only as of the last day of any Collection Period as of which the
Pool Balance is less than or equal to 10% of the Original Pool Balance.
The Trust Certificates may not be acquired by a Benefit Plan. By
accepting and holding this Trust Certificate, the Holder hereof shall be
deemed to have represented and warranted that it is not a Benefit Plan.
A-5
EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE
---------------, ----
[Seller]
--------------------------
--------------------------
--------------------------
BANKERS TRUST (DELAWARE)
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: ___________________
Re: Honda Auto Receivables 2000-1 Owner Trust
Asset Backed Certificates
-----------------------------------------
Dear Sirs:
In connection with out disposition of the above-referenced Asset
Backed Certificates (the "Certificates") we certify that (i) we understand
that the Certificates have not been registered under the Securities Act of
1933, as amended (the "Act"), and are being transferred by us in a
transaction that is exempt from the registration requirements of the Act and
(ii) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or
taken any other action which would result in, a violation of Section 5 of the
Act.
Very truly yours,
[NAME OF TRANSFEROR]
By
-------------------------------------
Authorized Officer
B-1
EXHIBIT C
FORM OF INVESTMENT LETTER
---------------, ---
Seller
------------------------
------------------------
------------------------
BANKERS TRUST (DELAWARE)
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: ____________________
Re: Honda Auto Receivables 2000-1 Owner Trust
Asset Backed Certificates
-----------------------------------------
Dear Sirs:
In connection with our acquisition of the above-referenced Asset
Backed Certificates (the "Certificates") we certify that (a) we understand
that the Certificates are not being registered under the Securities Act of
1933, as amended (the "Act"), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are an "accredited
investor," as defined in Regulation D under the Act, and have such knowledge
and experience in financial and business matters that we are capable of
evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Seller concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are acquiring the Certificates for
investment for our own account and not with a view to any distribution of
such Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (f) below),
(e) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, or taken any other action that would
result in a violation of Section 5 of the Act or any state securities laws,
(f) we are not a Benefit Plan and (g) we will not sell, or otherwise dispose
of any Certificates unless (i) such sale, transfer or other disposition is
made pursuant to an effective registration statement under the Act and in
compliance with any state securities laws or is exempt from such registration
requirements and, if requested, we will at our expense provide an Opinion of
Counsel satisfactory to the addresses of this certificate that such sale,
transfer or other disposition may be made pursuant to an exemption from the
Act, (ii) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate and (iii) the purchaser or transferee has otherwise complied with
any conditions for transfer set forth in the Amended and Restated Trust
C-1
Agreement dated as of October 1, 2000, between American Honda Receivables
Corp. and Bankers Trust (Delaware), as Owner Trustee.
Very truly yours,
[NAME OF TRANSFEROR]
By
-------------------------------------
Authorized Officer
C-2
EXHIBIT D
FORM OF RULE 144A LETTER
---------------, ---
[Seller]
------------------------
------------------------
------------------------
BANKERS TRUST (DELAWARE)
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: ____________________
Re: Honda Auto Receivables 2000-1 Owner Trust
Asset Backed Certificates
-----------------------------------------
Dear Sirs:
In connection with our acquisition of the above-referenced Asset
Backed Certificates (the "Certificates") we certify that (a) we understand
that the Certificates are not being registered under the Securities Act of
1933, as amended (the "Act"), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have such knowledge and
experience in financial and business matters that we are capable of
evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Seller concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we have not, nor has anyone acting on our
behalf, offered, transferred, pledged, sold or otherwise disposed of the
Certificates or an interest in the Certificates, or solicited any offer to
buy, transfer, pledge or otherwise dispose of the Certificates or any
interest in the Certificates from any person in any manner or made any
general solicitation by means of general advertising or in any other manner,
taken any other action that would constitute a distribution of the
Certificates under the Act or that would render the disposition of the
Certificates a violation of Section 5 of the Act or any state securities laws
or require registration pursuant thereto, and we will not act, or authorize
any person to act, in such manner with respect to the Certificates, (e) we
are not a Benefit Plan and (f) we are a "qualified institutional buyer" as
that term is defined in Rule 144A under the Act. We are aware that the sale
to us is being made in reliance on Rule 144A. We are acquiring the
certificates for our own account or for resale pursuant to Rule 144A and
understand that such certificates may be resold, pledged or transferred only
(i) to a person reasonably believed to be a
D-1
qualified institutional buyer that purchases for its own account or for the
account of a qualified ______ buyer to whom notice is given that the resale,
pledge or transfer is being made in ________ Rule 144A or (ii) pursuant to
another exemption from registration under the Act.
Very truly yours,
[NAME OF TRANSFEREE]
By
------------------------------------
Authorized Officer
D-2
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
the within Trust Certificate, and all rights thereunder, any hereby
irrevocably constitutes and appoints __________________, attorney, to
transfer said Trust Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
*
---------------------------------------
Signature Guaranteed:
----------------------------
--------
* NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Trust
Certificate in every particular, without alteration, enlargement or any
change whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be determined
by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
