EXHIBIT 4.2
EXECUTION COPY
AMENDED AND RESTATED
TRUST AGREEMENT
between
HOUSEHOLD AUTO RECEIVABLES CORPORATION
and
WILMINGTON TRUST COMPANY
Owner Trustee
Dated as of July 2, 2001
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS......................................................................1
Section 1.1. Capitalized Terms.........................................................1
Section 1.2. Other Definitional Provisions.............................................2
Section 1.3. Action by or Consent of Noteholders and Certificate-holders...............3
Section 1.4. Material Adverse Effect...................................................3
ARTICLE II ORGANIZATION....................................................................4
Section 2.1. Name......................................................................4
Section 2.2. Office....................................................................4
Section 2.3. Purposes and Powers.......................................................4
Section 2.4. Appointment of Owner Trustee..............................................5
Section 2.5. Initial Capital Contribution of Trust Estate..............................5
Section 2.6. Declaration of Trust......................................................5
Section 2.7. Liability.................................................................5
Section 2.8. Title to Trust Property...................................................5
Section 2.9. Situs of Trust............................................................6
Section 2.10. Representations and Warranties of the Depositor...........................6
Section 2.11. Federal Income Tax Allocations............................................7
Section 2.12. Covenants of the Depositor................................................8
Section 2.13. Covenants of the Certificateholders.......................................9
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS........................................10
Section 3.1. Initial Ownership........................................................10
Section 3.2. The Certificates.........................................................10
Section 3.3. Authentication of Certificates...........................................11
Section 3.4. Registration of Transfer and Exchange of Certificates....................12
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificates........................13
Section 3.6. Persons Deemed Certificateholders........................................13
Section 3.7. Access to List of Certificateholders' Names and Addresses................13
Section 3.8. Maintenance of Office or Agency..........................................14
Section 3.9. ERISA Restrictions.......................................................14
Section 3.10. Securities Matters.......................................................14
Section 3.11. Distributions............................................................14
Section 3.12. Paying Agent.............................................................14
ARTICLE IV VOTING RIGHTS AND OTHER ACTIONS................................................15
Section 4.1. Prior Notice to Holders with Respect to Certain Matters..................15
Section 4.2. Action by Certificateholders with Respect to Certain Matters.............16
Section 4.3. Action by Certificateholders with Respect to Bankruptcy..................16
Section 4.4. Restrictions on Certificateholders' Power................................16
(i)
PAGE
Section 4.5. Majority Control.........................................................17
ARTICLE V CERTAIN DUTIES..................................................................17
Section 5.1. Accounting and Records to the Noteholders, Certificate-holders, the
Internal Revenue Service and Others..................................17
Section 5.2. Signature on Returns; Tax Matters Partner................................17
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE..........................................18
Section 6.1. General Authority........................................................18
Section 6.2. General Duties...........................................................18
Section 6.3. Action upon Instruction..................................................18
Section 6.4. No Duties Except as Specified in this Agreement or in Instructions.......19
Section 6.5. No Action Except under Specified Documents or Instructions...............20
Section 6.6. Restrictions.............................................................20
ARTICLE VII CONCERNING THE OWNER TRUSTEE..................................................20
Section 7.1. Acceptance of Trusts and Duties..........................................20
Section 7.2. Furnishing of Documents..................................................22
Section 7.3. Representations and Warranties...........................................22
Section 7.4. Reliance; Advice of Counsel..............................................22
Section 7.5. Not Acting in Individual Capacity........................................23
Section 7.6. Owner Trustee Not Liable for Certificates or Receivables.................23
Section 7.7. Owner Trustee May Own Certificates and Notes.............................24
Section 7.8. Payments from Owner Trust Estate.........................................24
Section 7.9. Doing Business in Other Jurisdictions....................................24
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE................................................24
Section 8.1. Owner Trustee's Fees and Expenses........................................24
Section 8.2. Indemnification..........................................................25
Section 8.3. Payments to the Owner Trustee............................................25
Section 8.4. Non-recourse Obligations.................................................25
ARTICLE IX TERMINATION OF AGREEMENT.......................................................25
Section 9.1. Termination of Agreement.................................................25
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES..........................27
Section 10.1. Eligibility Requirements for Owner Trustee...............................27
Section 10.2. Resignation or Removal of Owner Trustee..................................27
Section 10.3. Successor Owner Trustee..................................................28
Section 10.4. Merger or Consolidation of Owner Trustee.................................29
Section 10.5. Appointment of Co-Trustee or Separate Trustee............................29
ARTICLE XI MISCELLANEOUS..................................................................30
Section 11.1. Supplements and Amendments...............................................30
(ii)
PAGE
Section 11.2. No Legal Title to Owner Trust Estate in Certificateholders...............31
Section 11.3. Limitations on Rights of Others..........................................31
Section 11.4. Notices..................................................................31
Section 11.5. Severability.............................................................32
Section 11.6. Separate Counterparts....................................................32
Section 11.7. Assignments; Series Support Provider.....................................32
Section 11.8. Covenants of the Depositor...............................................32
Section 11.9. No Petition..............................................................32
Section 11.10. No Recourse.............................................................33
Section 11.11. Headings................................................................33
Section 11.12. GOVERNING LAW...........................................................33
Section 11.13. Master Servicer.........................................................33
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
(iii)
THIS AMENDED AND RESTATED
TRUST AGREEMENT, dated as of July 2, 2001,
between
HOUSEHOLD AUTO RECEIVABLES CORPORATION, a Nevada corporation (the
"Depositor"), and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as
Owner Trustee (the "Owner Trustee") amends and restates in its entirety that
certain
Trust Agreement, dated as of June 29, 2001, between the Depositor and
the Owner Trustee.
ARTICLE I
DEFINITIONS
Section 1.1. CAPITALIZED TERMS. For all purposes of this Agreement,
the following terms shall have the meanings set forth below:
"Agreement" shall mean this Amended and Restated Agreement, as the
same may be amended and supplemented from time to time.
"Benefit Plan" shall have the meaning assigned to such term in ss.3.9.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 DEL. CODE Section 3801 et seq. as the same may be amended
from time to time.
"Certificates" means, if the Depositor elects (i) to evidence its
interest in certificated form pursuant to Section 3.2, the certificate
substantially in the form of Exhibit A or (ii) to have its interest be
uncertified pursuant to Section 3.2, such uncertificated interest.
"Certificate Majority" shall have the meaning assigned to such term in
Section 4.1.
"Certificate Paying Agent" means U.S. Bank National Association, a
national banking association.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned and the registrar appointed pursuant to Section 3.4.
"Certificate of Trust" shall mean the Certificate of Trust in the form
of Exhibit B to be filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Administration, or at such other address as the Owner
Trustee may designate by notice to the Certificateholders and the Depositor, or
the principal corporate trust office of any successor Owner Trustee (the address
of which the successor owner trustee will notify the Certificateholders and the
Depositor).
"Depositor" shall mean
Household Auto Receivables Corporation in its
capacity as Depositor hereunder.
"ERISA" shall have the meaning assigned to such term in Section 3.9.
"Expenses" shall have the meaning assigned to such term in Section
8.2.
"Holder" or "Certificateholder" shall mean a Person in whose name a
Certificate is registered on the Certificate Register.
"Household" shall mean Household Finance Corporation.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.2.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in and to the property and rights assigned to the Trust pursuant to
Article II of the Master Sale and Servicing Agreement, all funds on deposit from
time to time in the Trust Accounts and all other property of the Trust from time
to time, including any rights of the Owner Trustee and the Trust pursuant to the
Master Sale and Servicing Agreement, each Basic Document and each Series Related
Document.
"Owner Trustee" shall mean Wilmington Trust Company, a
Delaware
banking corporation, not in its individual capacity but solely as owner trustee
under this Agreement, and any successor Owner Trustee hereunder.
"Percentage Interest" shall mean, with respect to a Certificate, the
portion of the interests in the Trust represented by a Certificate, as reflected
in the Certificate Register.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities Act" shall have the meaning assigned to such term in
Section 3.4.
"Series Trust Estate" shall mean the property granted to the Owner
Trustee on behalf of the Trust pursuant to Section 1.02 of the Series 2001-2
Supplement.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this Agreement.
Section 1.2. OTHER DEFINITIONAL PROVISIONS(a) . (a) Capitalized terms
used herein and not otherwise defined have the meanings assigned to them in the
Master Sale and Servicing Agreement or, if not defined therein, in the
Indenture, PROVIDED THAT, as used herein, Series means only the Series of Notes
and Series of Certificates with respect
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to which the Trust is the Issuer and only such Series Trust Estates included in
the Owner Trust Estate.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any Certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any Certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles as in effect on the date of
this Agreement or any such certificate or other document, as applicable. To the
extent that the definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Agreement or in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Section and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
Section 1.3. ACTION BY OR CONSENT OF NOTEHOLDERS AND
CERTIFICATE-HOLDERS. Whenever any provision of this Agreement refers to action
to be taken, or consented to, by Noteholders or Certificateholders, such
provision shall be deemed to refer to the Certificateholder or Noteholder, as
the case may be, of record as of the Record Date immediately preceding the date
on which such action is to be taken, or consent given, by Noteholders or
Certificateholders. Solely for the purposes of any action to be taken, or
consented to, by Noteholders, any Note registered in the name of the Depositor
or any Affiliate thereof shall be deemed not to be outstanding; PROVIDED,
HOWEVER, that, solely for the purpose of determining whether the Trustee is
entitled to rely upon any such action or consent, only Notes which the Owner
Trustee or the Trustee knows to be so owned shall be so disregarded.
Section 1.4. MATERIAL ADVERSE EFFECT. Whenever a determination is to
be made under this Agreement as to whether a given event, action, course of
conduct or set of facts or circumstances could or would have a material adverse
effect on the Noteholders or Certificateholders (or any similar or analogous
determination), such determination shall be made without taking into account the
funds available from claims under any policy or other Series Support.
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ARTICLE II
ORGANIZATION
Section 2.1. NAME. There is hereby formed a trust to be known as
"Household Automotive Trust 2001-2", in which name the Owner Trustee may conduct
the business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
Section 2.2. OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address as
the Owner Trustee may designate by written notice to the Certificateholders and
the Depositor.
Section 2.3. PURPOSES AND POWERS(a) . (a) The purpose of the Trust is,
and the Trust shall have the power and authority, to engage in the following
activities:
(i) to issue the Notes pursuant to the Indenture and each Series
Supplement and the Certificates pursuant to this Agreement and each Series
Supplement, and to sell the Notes;
(ii) with the proceeds of the sale of the Notes, to fund the expense
of obtaining any Series Support and to pay the organizational, start-up and
transactional expenses of the Trust and to pay the balance to the Depositor
pursuant to the Master Sale and Servicing Agreement;
(iii) with respect to each Series Trust Estate, to assign, grant,
transfer, pledge, mortgage and convey each Series Trust Estate to the
Trustee pursuant to the Indenture and the related Series Supplement for the
benefit of the Noteholders;
(iv) to enter into and perform its obligations under the Basic
Documents and the Series Related Documents with respect to each Series, in
each case, to which it is a party;
(v) to acquire, hold and manage the Owner Trust Estate;
(vi) to make distributions on the Certificates in accordance with
their respective terms;
(vii) to own Class SV Preferred Stock of the Depositor;
(viii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(ix) subject to compliance with the Basic Documents and the Series
Related Documents with respect to each Series, to engage in such other
activities as may be required in connection with conservation of the Owner
Trust Estate and the making of distributions to the Certificateholders and
the Noteholders.
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(b) The Trust is hereby authorized to engage in the foregoing
activities. The Trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Agreement, the Basic Documents or any Series Related Documents.
Section 2.4. APPOINTMENT OF OWNER TRUSTEE. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
Section 2.5. INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, on behalf of the Trust, as of the date hereof, the sum of $1,000 and
one share of Class SV Preferred Stock of the Depositor. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate.
The Depositor shall pay organizational expenses of the Trust as they may arise.
Section 2.6. DECLARATION OF TRUST. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein, on behalf of the Trust, for the use and benefit of
the Certificateholders, subject to the obligations of the Trust under the Basic
Documents and the Series Related Documents with respect to each Series. It is
the intention of the parties hereto that the Trust constitute a business trust
under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business trust. It is the intention of the parties
hereto that, solely for income and franchise tax purposes, the Trust shall be
treated as a branch; PROVIDED, HOWEVER, that in the event Certificates are owned
by more than one Certificateholder, it is the intention of the parties hereto
that, solely for income and franchise tax purposes, the Trust shall then be
treated as a partnership and that, unless otherwise required by appropriate tax
authorities, only after such time the Trust will file or cause to be filed
annual or other necessary returns, reports and other forms consistent with the
characterization of the Trust as a partnership for such tax purposes. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and to the extent not inconsistent herewith, in the
Business Trust Statute with respect to accomplishing the purposes of the Trust.
The Owner Trustee shall file the Certificate of Trust with the Secretary of
State.
Section 2.7. LIABILITY. (a) The Depositor shall pay organizational
expenses of the Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the
Owner Trustee.
(b) No Holder, other than to the extent set forth in clause (a), shall
have any personal liability for any liability or obligation of the Trust.
Section 2.8. TITLE TO TRUST PROPERTY. (a) Legal title to all the
Owner Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in 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.
5
(b) The holders of the Certificates shall not have legal title to any
part of the related Series Trust Estate. The Holders of the Certificates shall
be entitled to receive distributions with respect to their undivided ownership
interest therein in accordance with the terms hereof and the related Series
Supplement. No transfer, by operation of law or otherwise, of any right, title
or interest by any Certificateholder of its ownership interest in the Owner
Trust Estate shall operate to terminate this Agreement or the trusts hereunder
or entitle any transferee to an accounting or to the transfer to it of legal
title to any part of any Series Trust Estate.
Section 2.9. SITUS OF TRUST. The Trust will be located and
administered in the State of
Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located with the Certificate Paying
Agent in the State of Illinois. Payments will be received by the Certificate
Paying Agent on behalf of the Trust in Illinois and payments will be made by the
Trust from Illinois. The Trust shall not have any employees in any state other
than
Delaware; PROVIDED, HOWEVER, that nothing herein shall restrict or prohibit
the Owner Trustee, the Master Servicer or any agent of the Trust from having
employees within or without the State of
Delaware. The only office of the Trust
will be at the Corporate Trust Office in
Delaware.
Section 2.10.REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor makes the following representations and warranties on which the Owner
Trustee relies in accepting the Owner Trust Estate in trust and executing the
Certificates and Notes and upon which any Series Support Provider relies in
providing any Series Support. Each of the following representations and
warranties shall be deemed to be made on each date on which a Series Trust
Estate is pledged under the Indenture.
(a) ORGANIZATION AND GOOD STANDING. The Depositor is duly organized
and validly existing as a Nevada corporation with power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted and is proposed to be conducted
pursuant to this Agreement and the Basic Documents.
(b) DUE QUALIFICATION. It is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of its
property, the conduct of its business and the performance of its obligations
under this Agreement and the Basic Documents requires such qualification and in
which the failure to so qualify would have a material adverse effect on the
business, properties, assets or condition (financial or otherwise) of the
Depositor.
(c) POWER AND AUTHORITY. The Depositor has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms; the
Depositor has full power and authority to sell and assign the property to be
sold and assigned to and deposited with the Trust; the Depositor has duly
authorized such sale, assignment and deposit to the Trust by all necessary
corporate action; and the execution, delivery and performance of this Agreement
has been duly authorized by the Depositor by all necessary corporate action.
6
(d) BINDING OBLIGATIONS. This Agreement, when duly executed and
delivered, shall constitute legal, valid and binding obligations of the
Depositor enforceable against the Depositor in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
by equitable limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(e) NO CONSENT REQUIRED. To the best knowledge of the Depositor, no
consent, license, approval or authorization or registration or declaration with,
any Person or with any governmental authority, bureau or agency is required in
connection with the execution, delivery or performance of this Agreement, the
Basic Documents and the applicable Series Related Documents, except for such as
have been obtained, effected or made or as to which a failure to obtain, effect
or make would not have a material adverse effect on the business, properties,
assets or condition (financial or other) of the Depositor.
(f) NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under, the articles of
incorporation or by-laws of the Depositor, or any material indenture, agreement
or other instrument to which the Depositor is a party or by which it is bound;
nor result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents or any applicable Series Related
Documents); nor violate any law or, to the best of the Depositor's knowledge,
any order, rule or regulation applicable to the Depositor of any court or of any
Federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties,
PROVIDED, HOWEVER, that the Receivables will not satisfy the Eligibility
Criteria set forth in Schedule I to the Series Supplement until the Closing
Date.
(g) NO PROCEEDINGS. To the best of the Depositor's knowledge, there
are no proceedings or investigations pending or, to its knowledge threatened
against it before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over it or its
properties (A) asserting the invalidity of this Agreement or any of the Basic
Documents, (B) seeking to prevent the issuance of the Certificates or the Notes
or the consummation of any of the transactions contemplated by this Agreement or
any of the Basic Documents, (C) seeking any determination or ruling that might
materially and adversely affect its performance of its obligations under, or the
validity or enforceability of, this Agreement, any of the Basic Documents or any
Series Related Documents, or (D) seeking to adversely affect the federal income
tax or other federal, state or local tax attributes of any of the Notes or
Certificates.
Section 2.11.FEDERAL INCOME TAX ALLOCATIONS. (a) For so long as
the Trust has a single owner for federal income tax purposes, it will, pursuant
to Treasury Regulations promulgated under section 7701 of the Code, be
disregarded as an entity distinct from the Certificateholder for all federal
income tax purposes. Accordingly, for
7
federal income tax purposes, the Certificateholder will be treated as (i) owning
all assets owned by the Trust, (ii) having incurred all liabilities incurred by
the Trust, and (iii) all transactions between the Trust and the
Certificateholder will be disregarded.
(b) Neither the Owner Trustee nor any Certificateholder will, under
any circumstances, and at any time, make an election on IRS Form 8832 or
otherwise, to classify the Trust as an association taxable as a corporation for
federal, state or any other applicable tax purpose.
(c) In the event that the Trust has two equity owners for federal
income tax purposes, the Trust will be treated as a partnership. At any such
time that the Trust has two equity owners, this Agreement will be amended, in
accordance with Section 11.1 herein, and appropriate provisions will be added so
as to provide for treatment of the Trust as a partnership.
Section 2.12.COVENANTS OF THE DEPOSITOR. The Depositor agrees and
covenants for the benefit of the Owner Trustee and the Trustee for the benefit
of the Noteholders, during the term of this Agreement, and to the fullest extent
permitted by applicable law, that:
(a) (i) it shall not create, incur or suffer to exist any indebtedness
or (ii) engage in any business, except (x) as permitted by its certificate of
incorporation, the Basic Documents and the Series Related Documents or (y) in
connection with a securitization transaction and the related documents in which
the related indebtedness is issued pursuant to an indenture having a provision
substantially similar to Section 11.18 of the Indenture; PROVIDED, HOWEVER, that
no other Series shall be issued under the Basic Documents and the Series Related
Documents so long as the Series 2001-2 Notes are outstanding;
(b) it shall not, for any reason, institute proceedings for the Trust
to be adjudicated a bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against the Trust, or file a petition
seeking or consenting to reorganization or relief under any applicable federal
or state law relating to the bankruptcy of the Trust, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Trust or a substantial part of the property of the
Trust or cause or permit the Trust to make any assignment for the benefit of
creditors, or admit in writing the inability of the Trust to pay its debts
generally as they become due, or declare or effect a moratorium on the debt of
the Trust or take any action in furtherance of any such action;
(c) it shall obtain from each counterparty to each Basic Document to
which it or the Trust is a party and each other agreement entered into on or
after the date hereof to which it or the Trust is a party, an agreement by each
such counterparty that prior to the occurrence of the event specified in Section
9.1(e) such counterparty shall not institute against, or join any other Person
in instituting against, it or the Trust, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceedings
under the laws of the United States or any state of the United States; and
8
(d) it shall not, for any reason, withdraw or attempt to withdraw from
this Agreement, dissolve, institute proceedings for it to be adjudicated a
bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against it, or file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating to
bankruptcy, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of it or a substantial part of
its property, or make any assignment for the benefit of creditors, or admit in
writing its inability to pay its debts generally as they become due, or declare
or effect a moratorium on its debt or take any action in furtherance of any such
action.
Section 2.13.COVENANTS OF THE CERTIFICATEHOLDERS. Each
Certificateholder agrees:
(a) to be bound by the terms and conditions of the related
Certificates, of this Agreement and, with respect to the holders of
Certificates, of the related Series Supplement, including any supplements or
amendments hereto and to perform the obligations of a Certificateholder as set
forth therein or herein, in all respects as if it were a signatory hereto. This
undertaking is made for the benefit of the Trust, the Owner Trustee and the
Noteholders;
(b) to hereby appoint the Depositor as such Certificateholder's agent
and attorney-in-fact to sign any federal income tax information return filed on
behalf of the Trust, if any, and agree that, if requested by the Trust, it will
sign such federal income tax information return in its capacity as holder of an
interest in the Trust. Each Certificateholder also hereby agrees that in its tax
returns it will not take any position inconsistent with those taken in any tax
returns that may be filed by the Trust;
(c) if such Certificateholder is other than an individual or other
entity holding its Certificate through a broker who reports securities sales on
Form 1099-B, to notify the Owner Trustee of any transfer by it of a Certificate
in a taxable sale or exchange, within 30 days of the date of the transfer;
(d) until the completion of the events specified in Section 9.1(e),
not to, for any reason, institute proceedings for the Trust or the Depositor to
be adjudicated a bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against the Trust, or file a petition
seeking or consenting to reorganization or relief under any applicable federal
or state law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Trust or a substantial part of its property, or cause or permit
the Trust to make any assignment for the benefit of its creditors, or admit in
writing its inability to pay its debts generally as they become due, or declare
or effect a moratorium on its debt or take any action in furtherance of any such
action; and
(e) that there shall not be more than 98 other holders of
Certificates.
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ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.1. INITIAL OWNERSHIP. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5, the Trust shall issue an
uncertificated ownership interest in the Trust (the "Uncertificated
Certificate") to the Depositor. Unless and until the Depositor transfers all or
a portion of the Percentage Interest represented by such Uncertificated
Certificate, such Uncertificated Certificate shall represent one hundred percent
(100%) of the Percentage Interest.
Section 3.2. THE CERTIFICATES. (a) The Certificates shall be in
uncertificated form with records of interest ownership maintained by the
Certificate Registrar in the Certificate Register. If, on or after the Closing
Date, the holder of any Uncertificated Certificate delivers to the Owner Trustee
a written request that the Uncertificated Certificate specified in such request
be issued in certificated form (a related "Certification Request"), the Owner
Trustee shall promptly issue such Certificate to the holder thereof in
certificated form. If a Certification Request has been delivered, the
Certificate will be issued in registered form, substantially in the form of
Exhibit A, and shall upon issue, be executed and delivered by the Depositor to
the Owner Trustee for authentication and redelivery as provided in Section 3.3.
(b) If the Certificates are in certificated form, they shall be
executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefit of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates.
(c) A transferee of a Certificate (whether in certificated or
uncertificated form) shall become a Certificateholder, and shall be entitled to
the rights and subject to the obligations of a Certificateholder hereunder,
upon due registration of such Certificate in such transferee's name pursuant to
Section 3.4.
(d) No Certificates shall be issued under this Agreement unless such
Certificates have been authorized pursuant to a Series Supplement and all
conditions precedent to the issuance thereof, as specified in the related Series
Supplement shall have been satisfied. All Certificates of each Series issued
under this Agreement shall be in all respects entitled to the benefits hereof
and of the related Series Trust Estate.
(e) Upon the written direction of the Depositor, the Owner Trustee and
the Depositor shall enter into one or more Supplements, providing for the
issuance of separate Series of Certificates. Each Series shall be a separate
Series of the Trust within the meaning of Section 3806(b)(2) of the Business
Trust Statute. Separate and distinct records (including tax records) shall be
maintained for each Series and the Owner Trust Estate associated with each such
Series shall be maintained for each Series and the Owner Trust Estate associated
with each such Series shall be held in Trust and accounted
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for separately from the Owner Trust Estate of any other Series. Except as
specified in this Agreement or in any Supplement, the Owner Trust Estate of any
Series shall not be subject to claims, debts, liabilities, expenses or
obligations arising from or with respect to the Trust or any other Series. The
debts, obligations and expenses incurred, contracted for or otherwise existing
with respect to a particular Series shall be enforceable against the related
Owner Trust Estate only and not against the assets of the Trust generally or any
other Series. Notice of this limitation on inter-series liabilities shall be set
forth in the Certificate of Trust (whether originally or by amendment) as filed
with the Secretary of State pursuant to the Business Trust Statute, and upon the
giving of such notice in the Certificate of Trust, the statutory provisions of
Section 3804 of the Business Trust Statute relating to limitations on
inter-series liabilities (and the statutory effect under Section 3804 of setting
forth such notice in the Certificate of Trust) shall become applicable to the
Trust and each Series of Certificates.
(f) Each Supplement shall contain provisions requiring that neither
the Depositor nor any Holder of a Certificate of the related Series of
Certificates shall direct the Owner Trustee to (i) take any action that would
cause the Owner Trust Estate of the related Series to be substantively
consolidated into any other Owner Trust Estate of any other Series such that it
will have its separate existence disregarded in the event of an insolvency event
with respect to any Certificateholder of such Series, the Trust or another
Series, (ii) to commingle any of the Owner Trust Estate of the related Series
with the Owner Trust Estate of any other Series, (iii) to maintain the
corporate, financial and accounting books and records and statements of the
related Series, if any, in a manner such that they cannot be separated from
those of any other Series, (iv) to take any action that would cause (a) the
funds and other assets of the related Series, if any, not to be identifiable or
the bank accounts, corporate records and books of account, if any, of the
related Series not to be inseparable from those of any other Series and (b) the
Trust to pay, other than from assets of the related Series, any obligations or
indebtedness of any kind incurred by the related Series and payable by the Trust
pursuant to this Agreement, (v) to maintain the assets and liabilities of the
related Series so that they are not readily ascertainable from those of any
other Series and subject to segregation without requiring substantial time or
expense to effect and account for such segregated assets and liabilities, (vi)
to take any actions with respect to the related Series except in its capacity as
Owner Trustee in respect of such Series. The Master Servicer shall have the
right to take any action on behalf of the Trust to enforce the foregoing
provisions of each Supplement for the benefit of the Trust and of each Series.
(g) Each Certificateholder shall hold an exclusive, divided beneficial
interest in the Owner Trust Estate of its related Series of Certificates.
(h) The Certificateholders of any Series of Certificates shall be
entitled to receive distributions with respect to their undivided ownership
interest therein only in accordance with the provisions of Section 3.11 and the
related Supplement.
Section 3.3. AUTHENTICATION OF CERTIFICATES. If the Certificates are
in certificated form, the Owner Trustee shall cause the related Certificates to
be executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Depositor, signed by its chairman of the board, its
president or any vice president, its
11
treasurer or any assistant treasurer without further corporate action by the
Depositor, in authorized denominations. No Certificate shall entitle its holder
to any benefit under this Agreement or, with respect to a Series, the related
Series Supplement, or shall be valid for any purpose, unless there shall appear
on such Certificate a certificate of authentication substantially in the form
set forth in Exhibit A, executed by the Owner Trustee or its authenticating
agent, by manual signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Section 3.4. REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.8, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Owner Trustee
shall provide for the registration of Certificates (whether in certificated or
uncertificated form) and of transfers and exchanges of Certificates (whether in
certificated or uncertificated form) as herein provided. The Owner Trustee shall
be the initial Certificate Registrar .
(b) The Certificate Registrar shall provide the Trustee with a list of
the names and addresses of the Certificateholders on each Series Closing Date in
the form which such information is provided to the Certificate Registrar by the
Depositor. Upon any transfers of Certificates, the Certificate Registrar shall
notify the Trustee of the name and address of the transferee in writing, by
facsimile, on the day of such transfer.
(c) If a Certificate is in certificated form, upon surrender for
registration of transfer of any Certificate to the Certificate Registrar at the
office or agency maintained pursuant to Section 3.8, the Owner Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Series in the aggregate
Percentage Interest to be transferred, dated the date of authentication by the
Owner Trustee or any authenticating agent. If a Certificate is in uncertificated
form, upon representation of such Certificate in accordance with Section 3.2,
the Certificate Registrar shall reflect in the Certificate Registrar the
transfer of the relevant Percentage Interest. If a Certificate is in
certificated form, at the option of the Holder thereof, such Certificate may be
exchanged for one or more other Certificates of the same Series in authorized
denominations of a like Percentage Interest upon surrender of the Certificates
of the same Series, to be exchanged at the office or agency maintained pursuant
to Section 3.8. Certificates may be issued in any Percentage Interest not to
exceed 100%.
(d) Every Certificate presented or, in the case of certificated
Certificates, surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Owner Trustee and the Certificate Registrar duly executed by the
Certificateholder or his attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Certificate Registrar, which requirements include membership
or participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Certificate Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act. Each certificated Certificate surrendered for
12
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Owner Trustee in accordance with its customary practice.
(e) No service charge shall be made for any registration of transfer
or exchange of Certificates, but the Owner Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Certificates.
Section 3.5. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee, such security or indemnity
as may be required by them to save each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a bona fide purchaser,
the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee or
its authenticating agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Series principal balance. In connection with the issuance of
any new Certificate under this Section, the Owner Trustee or the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this section shall constitute conclusive evidence
of an ownership interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
Section 3.6. PERSONS DEEMED CERTIFICATEHOLDERS. Every Person by virtue
of becoming a Certificateholder in accordance with this Agreement and the rules
and regulations of the Certificate Registrar shall be deemed to be bound by the
terms of this Agreement. Prior to due presentation of a Certificate for
registration of transfer, the Owner Trustee, the Certificate Registrar and any
agent of the Owner Trustee and the Certificate Registrar may treat the Person in
whose name any Certificate shall be registered in the Certificate Register as
the owner of such Certificate for the purpose of receiving distributions
pursuant hereto, the Indenture or any Series Supplement (in the case of a
Certificate) and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar, nor any agent of the Owner Trustee or the
Certificate Registrar shall be bound by any notice to the contrary.
Section 3.7. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Owner Trustee or the Certificate Registrar shall furnish or cause
to be furnished to the Master Servicer, the Depositor or Owner Trustee within 15
days after receipt by the Owner Trustee or the Certificate Registrar of a
request therefor from such Person in writing, a list, of the names and addresses
of the Certificateholders as of the most recent Record Date. If three or more
Holders of Certificates or one or more Holders of Certificates evidencing not
less than 25% of the Percentage Interest apply in writing to the Owner Trustee
or the Certificate Registrar, and such application states that the applicants
desire to communicate with other Certificateholders with respect to their rights
under this Agreement, under the Certificates of such Series or under the related
Series Supplement and such application is accompanied by a copy of the
communication that
13
such applicants propose to transmit, then the Owner Trustee or the Certificate
Registrar shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders of such Series. Each Holder, by receiving and
holding a Certificate, shall be deemed to have agreed not to hold any of the
Depositor, the Master Servicer, the Owner Trustee or any agent thereof
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 3.8. MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee or the
Certificate Registrar shall maintain in Wilmington,
Delaware, an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificates and the Basic Documents may be
served. The Owner Trustee initially designates its Corporate Trust Office for
such purposes. The Owner Trustee shall give prompt written notice to the
Depositor, the Certificateholders and (unless a Support Default shall have
occurred and be continuing) any Series Support Provider of any change in the
location of the Certificate Register or any such office or agency.
Section 3.9. ERISA RESTRICTIONS. The Certificates may not be acquired
by or for the account of (i) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the provisions of Title I of ERISA, (ii) a plan
(as defined in Section 4975(e)(1) of the Code) that is subject to Section 4975
of the Code or (iii) any entity whose underlying assets include assets of a plan
described in (i) or (ii) by reason of such plan's investment in the entity
(each, a "Benefit Plan"). The Certificate Registrar shall not register the
transfer of a Certificate unless the transferee has delivered to the Owner
Trustee a representation letter in form and substance satisfactory to the Owner
Trustee to the effect that the transferee is not, and is not acquiring the
Certificate for the account of, a Benefit Plan.
Section 3.10.SECURITIES MATTERS. Notwithstanding anything contained
herein to the contrary, the Owner Trustee shall not be responsible for
ascertaining whether any transfer complies with the registration provisions or
exemptions from the Securities Act, the Exchange Act, applicable state
securities law or the Investment Company Act; PROVIDED, HOWEVER, that if a
certificate is specifically required to be delivered to the Owner Trustee by a
purchaser or transferee of a Certificate, the Owner Trustee shall be under a
duty to examine the same to determine whether it conforms to the requirements of
this Agreement and shall promptly notify the party delivering the same if such
certificate does not so conform.
Section 3.11.DISTRIBUTIONS. Distributions shall be made from time to
time by the Owner Trustee or the Certificate Paying Agent in accordance with the
Percentage Interests of the Certificateholders.
Section 3.12.PAYING AGENT. Distributions to be made in respect of the
Certificates pursuant to this Agreement, or any Series Supplement shall be made
by the Certificate Paying Agent, by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of the Certificate
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or the making of any notation thereon, except as provided in Section 9.1(c) with
respect to the final distribution on a Certificates.
ARTICLE IV
VOTING RIGHTS AND OTHER ACTIONS
Section 4.1. PRIOR NOTICE TO HOLDERS WITH RESPECT TO CERTAIN MATTERS.
With respect to the following matters, the Owner Trustee shall not take action
unless at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders in writing of the proposed action and
Certificateholders holding, in the aggregate, greater than 50% of the Percentage
Interests (a "Certificate Majority") shall not have notified the Owner Trustee
in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the election by the Trust to file an amendment to the Certificate
of Trust, which amendment shall have satisfied the Rating Agency Condition
(unless such amendment is required to be filed under the Business Trust Statute
or unless such amendment would not materially and adversely affect the interests
of the Holders);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
or
(d) except pursuant to Section 13.1(b) of the Master Sale and
Servicing Agreement, the amendment, change or modification of the Master Sale
and Servicing Agreement, except to cure any ambiguity or defect or to amend or
supplement any provision in a manner that would not materially adversely affect
the interests of the Certificateholders.
(e) the Depositor shall not, without the unanimous consent of the
holders of the Class SV Preferred Stock of the Depositor, institute proceedings
to be adjudicated insolvent, or consent to the institution of any bankruptcy or
insolvency case or proceedings against it, or file or consent to a petition
under any applicable federal or state law relating to bankruptcy, seeking the
Depositor's liquidation or reorganization or any other relief for the
Corporation as debtor, or consent to the appointment of a receiver, liquidator,
assignee, trustee, custodian or sequestrator (or other similar official) of the
Corporation or a substantial part of its property, or make any assignment for
the benefit of creditors, or admit in writing its inability to pay its debts
generally as they become due, or take any corporate action in furtherance of
such action.
The Owner Trustee shall notify the Certificateholders in writing of any
appointment of a successor Note Registrar or Certificate Registrar within five
Business Days thereof.
15
Section 4.2. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not have the power (a) to remove the Master
Servicer under the Master Sale and Servicing Agreement or (b) except as
expressly provided in the Indenture and the related Series Supplement and at the
written direction of the Certificateholders, sell the Receivables after the
termination of the Indenture. The Owner Trustee shall take the actions referred
to in the preceding sentence only upon written instructions signed by the
Certificateholders and the furnishing of indemnification satisfactory to the
Owner Trustee by the Certificateholders.
Section 4.3. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY.
Until one year and one day following the date of payment in full of the Notes of
each Series have been paid in full, the Owner Trustee shall not have the power
to, and shall not, commence any proceeding or other actions contemplated by
Section 2.13(d) hereof relating to the Trust without the prior written consent
of all the Certificateholders and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.4. RESTRICTIONS ON CERTIFICATEHOLDERS' POWER(a) . (a) The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement, any of the Basic
Documents or any Series Related Documents or would be contrary to Section 2.3 or
otherwise contrary to law nor shall the Owner Trustee be obligated to follow any
such direction, if given.
(b) No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action, or
proceeding in equity or at law upon or under or with respect to this Agreement
or any Basic Document, unless there are no outstanding notes of any Series and
unless the Certificate Majority previously shall have given to the Owner Trustee
a written notice of default and of the continuance thereof, as provided in this
Agreement, and also unless the Certificate Majority shall have made written
request upon the Owner Trustee to institute such action, suit or proceeding in
its own name as Owner Trustee under this Agreement and shall have offered to the
Owner Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Owner
Trustee, for 30 days after its receipt of such notice, request, and offer of
indemnity, shall have neglected or refused to institute any such action, suit,
or proceeding, and during such 30-day period no request or waiver inconsistent
with such written request has been given to the Owner Trustee pursuant to and in
compliance with this section or Section 6.3; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Owner Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb, or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner provided in this Agreement and for the equal, ratable, and common benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section 4.4, each and every Certificateholder and the Owner Trustee
shall be entitled to such relief as can be given either at law or in equity.
16
Section 4.5. MAJORITY CONTROL. No Certificateholder shall have any
right to vote or in any manner otherwise control the operation and management of
the Trust except as expressly provided in this Agreement. Except as expressly
provided herein, any action that may be taken by the Certificateholders under
this Agreement may be taken by the Certificate Majority. Except as expressly
provided herein, any written notice of the Certificateholders delivered pursuant
to this Agreement shall be effective if signed by the Certificate Majority at
the time of the delivery of such notice.
ARTICLE V
CERTAIN DUTIES
Section 5.1. ACCOUNTING AND RECORDS TO THE NOTEHOLDERS, CERTIFICATE-
HOLDERS, THE INTERNAL REVENUE SERVICE AND OTHERS. Subject to Sections
12.1(b)(iii) and 12.1(c) of the Master Sale and Servicing Agreement, the Master
Servicer shall (a) maintain (or cause to be maintained) the books of the Trust
on a calendar year basis on the accrual method of accounting, including, without
limitation, the allocations of net income under Section 2.11, (b) deliver
(or cause to be delivered) to each Certificateholder, as may be required by the
Code and applicable Treasury Regulations, such information as may be required
(including Schedule K-1, if applicable) to enable each Certificateholder to
prepare its Federal and state income tax returns, (c) file or cause to be filed,
if necessary, such tax returns relating to the Trust (including a partnership
information return, Form 1065), and direct the Owner Trustee or the Master
Servicer, as the case may be, to make such elections as may from time to time be
required or appropriate under any applicable state or Federal statute or rule or
regulation thereunder so as to maintain the Trust's characterization as a
branch, or if applicable, as a partnership, for Federal income tax purposes and
(d) collect or cause to be collected any withholding tax as described in and in
accordance with the Master Sale and Serving Agreement or any Series Supplement
with respect to income or distributions to Certificateholders and the
appropriate forms relating thereto. The Owner Trustee or the Master Servicer,
as the case may be, shall make all elections pursuant to this Section 5.1 as
directed in writing by the Depositor. The Owner Trustee shall sign all tax
information returns, if any, filed pursuant to this Section 5.1 and any other
returns as may be required by law, and in doing so shall rely entirely upon, and
shall have no liability for information provided by, or calculations provided
by, the Depositor or the Master Servicer. The Owner Trustee shall elect under
Section 1278 of the Code to include in income currently any market discount that
accrues with respect to the Receivables. The Owner Trustee shall not make the
election provided under Section 754 of the Code.
Section 5.2. SIGNATURE ON RETURNS; TAX MATTERS PARTNER. (a)
Notwithstanding the provisions of Section 5.1 and in the event that the Trust is
characterized as a partnership, the Owner Trustee shall sign on behalf of the
Trust the tax returns of the Trust, unless applicable law requires a
Certificateholder to sign such documents, in which case such documents shall be
signed by the Depositor.
(b) In the event that the Trust is characterized as a partnership, the
Depositor shall be the "tax matters partner" of the Trust pursuant to the Code.
17
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1. GENERAL AUTHORITY. The Owner Trustee is authorized and
directed to execute and deliver on behalf of the Trust the Basic Documents and
each Series Supplement and the related Series Related Documents to which the
Trust is named as a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents and each Series Supplement and
the related Series Related Documents to which the Trust is named as a party and
any amendment thereto, in each case, in such form as the Depositor shall approve
as evidenced conclusively by the Owner Trustee's execution thereof, and on
behalf of the Trust, to direct the Trustee to authenticate and deliver each
Series of Notes (or Class of such Series). In addition to the foregoing, the
Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Trust pursuant to the Basic Documents and each Series Supplement
and the related Series Related Documents. The Owner Trustee is further
authorized from time to time to take such action as the Certificate Majority
recommends with respect to the Basic Documents and each Series Supplement and
the related Series Related Documents so long as such activities are consistent
with the terms of the Basic Documents and each Series Supplement and the related
Series Related Documents.
Section 6.2. GENERAL DUTIES. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and to administer the Trust in accordance with the
provisions of this Agreement and in the interest of the Holders, subject to the
Basic Documents and, with respect to Certificates, each Series Supplement and
the related Series Related Documents. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents and, with respect to Certificates, each
Series Supplement and the related Series Related Documents to the extent the
Master Servicer has agreed in the Master Sale and Servicing Agreement to perform
any act or to discharge any duty of the Trust or the Owner Trustee hereunder or
under any Basic Document and, with respect to Certificates, each Series
Supplement and the related Series Related Documents, and the Owner Trustee shall
not be liable for the default or failure of the Master Servicer to carry out its
obligations under the Master Sale and Servicing Agreement.
Section 6.3. ACTION UPON INSTRUCTION. (a) Subject to Article IV,
the Certificate Majority shall have the exclusive right to direct the actions of
the Owner Trustee in the management of the Trust, so long as such instructions
are not inconsistent with the express terms set forth herein, in any Basic
Document or, with respect to Certificates, in any Series Supplement or in any
Series Related Document. The Certificate Majority shall not instruct the Owner
Trustee in a manner inconsistent with this Agreement or the Basic Documents or,
with respect to Certificates, any Series Supplement or any Series Related
Document.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document or, with respect to Certificates, any
Series Supplement or any Series Related Document if the Owner Trustee shall have
reasonably
18
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee or is contrary to the terms
hereof or of any Basic Document or, with respect to Certificates, any Series
Supplement or any Series Related Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Basic Document or, with respect to Certificates, any Series Supplement or any
Series Related Document, the Owner Trustee shall promptly give notice (in such
form as shall be appropriate under the circumstances) to the Certificate
Majority requesting instruction as to the course of action to be adopted, and to
the extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Certificate Majority, the Owner Trustee shall not be liable
on account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or the
Basic Documents or, with respect to Certificates, any Series Supplement or any
Series Related Document, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Basic Document or, with
respect to Certificates, any Series Supplement or any Series Related Document or
any such provision is ambiguous as to its application, or is, or appears to be,
in conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Certificate
Majority requesting instruction and, to the extent that the Owner Trustee acts
or refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement, the Basic
Documents or any Series Related Document, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any Person
for such action or inaction.
Section 6.4. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 6.3; and no implied duties or obligations
shall be read into this Agreement or any Basic Document or, with
19
respect to Certificates, any Series Supplement or any Series Related Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or to otherwise perfect or maintain the perfection of any security interest or
lien granted to it hereunder or to prepare or file any Commission filing for the
Trust or to record this Agreement or any Basic Document or, with respect to
Certificates, any Series Supplement or any Series Related Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any Liens on any part of the
Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee (solely in its individual capacity) and that are not related to the
ownership or the administration of the Owner Trust Estate.
Section 6.5. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents
or any Series Related Document and (iii) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section 6.3.
Section 6.6. RESTRICTIONS. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section 2.3
or (b) that, to the actual knowledge of the Owner Trustee, would result in the
Trust's becoming taxable as a corporation or a publicly traded partnership for
Federal income tax purposes. The Certificateholders shall not direct the Owner
Trustee to take action that would violate the provisions of this Section.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.1. ACCEPTANCE OF TRUSTS AND DUTIES. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee and the Certificate Paying Agent also agree to disburse all monies
actually received by it constituting part of the Owner Trust Estate upon the
terms of this Agreement or the Basic Documents or, with respect to Certificates,
any Series Supplement or any Series Related Document. The Owner Trustee shall
not be answerable or accountable hereunder or under any Basic Document or, with
respect to Certificates, any Series Supplement or any Series Related Document
under any circumstances, except (i) for its own willful misconduct, bad faith or
negligence, (ii) in the case of the inaccuracy of any representation or warranty
contained in Section 7.3 expressly made by the Owner Trustee in its individual
capacity, (iii) for liabilities arising from the failure of the Owner Trustee to
perform obligations expressly undertaken by it in the last sentence of
Section 6.4 hereof, (iv) for any investments issued by the Owner Trustee or any
branch or affiliate thereof in its commercial capacity or (v) for taxes, fees or
other charges on, based on or measured by, any fees, commissions or compensation
received by the Owner Trustee. In particular, but
20
not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Certificate Majority, the Depositor, the Master Servicer or any
Certificateholder;
(c) no provision of this Agreement or any Basic Document or, with
respect to Certificates, any Series Supplement or any Series Related Document
shall require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any Basic Document or, with respect to Certificates, any Series
Supplement or any Series Related Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents or, with
respect to Certificates, any Series Supplement or any Series Related Document,
including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution hereof by
the Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate or for or in respect of the validity
or sufficiency of the Basic Documents or, with respect to Certificates, any
Series Supplement or any Series Related Document, other than the certificate of
authentication on the Certificates, and the Owner Trustee shall in no event
assume or incur any liability, duty or obligation to the Depositor, any Series
Support Provider, Trustee, the Certificate Paying Agent, any Noteholder or to
any Certificateholder, other than as expressly provided for herein, in the Basic
Documents or, with respect to Certificates, any Series Supplement or any Series
Related Document;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Depositor, any Series Support Provider, the Trustee or the
Master Servicer under any of the Basic Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform the obligations under
this Agreement, the Basic Documents or, with respect to Certificates, any Series
Supplement or any Series Related Document that are required to be performed by
the Depositor or the Certificate Paying Agent under this Agreement, by the
Trustee under the Indenture, any Series Supplement or any Series Related
Document or the Master Servicer under the Master Sale and Servicing Agreement or
any Series Supplement or any Series Related Document; and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Basic Document or, with respect to Certificates, any Series
Supplement or any Series Related
21
Document, at the request, order or direction of the Certificate Majority or any
of the Certificateholders, unless such Certificate Majority or
Certificateholders have offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Agreement or in any Basic
Document shall not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its negligence, bad faith or willful misconduct in the
performance of any such act.
Section 7.2. FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish
to the Certificateholders promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents or, with respect to Certificates, any Series
Supplement or any Series Related Document.
Section 7.3. REPRESENTATIONS AND WARRANTIES. The Owner Trustee hereby
represents and warrants, in its individual capacity, to the Depositor, the
Holders and any Series Support Provider (which shall have relied on such
representations and warranties in issuing any policy relating to Series
Support), that:
(a) It is a
Delaware banking corporation, duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene any
Federal or Delaware state law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding on
it, or constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound.
Section 7.4. RELIANCE; ADVICE OF COUNSEL. (a) The Owner Trustee
shall incur no liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion, bond
or other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of the determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer,
secretary or other authorized officers of the relevant party, as to such fact or
matter, and such
22
certificate shall constitute full protection to the Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and according to such opinion not
contrary to this Agreement or any Basic Document or, with respect to
Certificates, any Series Supplement or any Series Related Document.
Section 7.5. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article VII, in accepting the trusts hereby created Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document or, with
respect to Certificates, any Series Supplement or any Series Related Document
shall look only to the Owner Trust Estate for payment or satisfaction thereof.
Section 7.6. OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES OR RECEIVABLES.
The recitals contained herein and in certificated Certificates (other than the
signature and countersignature of the Owner Trustee on such Certificates) shall
be taken as the statements of the Depositor and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, of any
Basic Document or of the Certificates (other than the signature and
countersignature of the Owner Trustee on certificated Certificates) or the
Notes, or of any Receivable or related documents. The Owner Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Receivable, or the perfection and priority of
any security interest created by any Receivable in any Financed Vehicle or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Owner Trust Estate or its ability to generate the payments to
be distributed to Certificateholders under this Agreement or the Noteholders
under the Indenture, including, without limitation: the existence, condition and
ownership of any Financed Vehicle; the existence and enforceability of any
insurance thereon; the existence and contents of any Receivable on any computer
or other record thereof; the validity of the assignment of any Receivable to the
Trust or of any intervening assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance by the Depositor,
the Master Servicer or any other Person with any warranty or representation made
under any Basic Document or in any related document or the accuracy of any such
warranty or representation or any action of the Trustee or the Master Servicer
or any subservicer taken in the name of the Owner Trustee.
23
Section 7.7. OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositor, the Trustee and the
Master Servicer in banking transactions with the same rights as it would have if
it were not Owner Trustee.
Section 7.8. PAYMENTS FROM OWNER TRUST ESTATE All payments to be made
by the Owner Trustee or any Certificate Paying Agent under this Agreement or any
of the Basic Documents or, with respect to Certificates, any Series Supplement
or any Series Related Document to which the Trust or the Owner Trustee is a
party shall be made only from the income and proceeds of the Owner Trust Estate
and only to the extent that the Owner Trust shall have received income or
proceeds from the Owner Trust Estate to make such payments in accordance with
the terms hereof. Wilmington Trust Company, or any successor thereto, in its
individual capacity, shall not be liable for any amounts payable under this
Agreement or any of the Basic Documents or, with respect to Certificates, any
Series Supplement or any Series Related Document to which the Trust or the Owner
Trustee is a party.
Section 7.9. DOING BUSINESS IN OTHER JURISDICTIONS. Notwithstanding
anything contained to the contrary, neither Wilmington Trust Company or any
successor thereto, nor the Owner Trustee shall be required to take any action in
any jurisdiction other than in the State of Delaware if the taking of such
action will, even after the appointment of a co-trustee or separate trustee in
accordance with Section 10.5 hereof, (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration with
or the taking of any other action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or other governmental charge under the laws of the State
of Delaware becoming payable by Wilmington Trust Company (or any successor
thereto); or (iii) subject Wilmington Trust Company (or any successor thereto)
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by Wilmington Trust Company (or any successor thereto) or the Owner
Trustee, as the case may be, contemplated hereby.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.1. OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between Household and the Owner
Trustee, and the Owner Trustee shall be entitled to be reimbursed by the
Depositor for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder or under the
Basic Documents or, with respect to Certificates, under any Series Supplement or
under any Series Related Documents.
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Section 8.2. INDEMNIFICATION. The Depositor shall be liable as primary
obligor for, and shall indemnify the Owner Trustee (in its individual and trust
capacities) and its officers, directors, successors, assigns, agents and
servants (collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee (in its trust or individual capacities) or any
Indemnified Party in any way relating to or arising out of this Agreement or the
Basic Documents or, with respect to Certificates, any Series Supplement, any
series Related Documents, the Owner Trust Estate, the administration of the
Owner Trust Estate or the action or inaction of the Owner Trustee hereunder,
except only that the Depositor shall not be liable for or required to indemnify
the Owner Trustee from and against Expenses arising or resulting from any of
the matters described in the third sentence of Section 7.1. The indemnities
contained in this Section 8.2 and the rights under Section 8.1 shall survive the
resignation or termination of the Owner Trustee or the termination of this
Agreement. In any event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section, the Owner Trustee's choice of legal
counsel shall be subject to the approval of the Depositor which approval shall
not be unreasonably withheld.
Section 8.3. PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid to the
Owner Trustee in its Trust Capacity pursuant to this Article VIII shall be
deemed not to be a part of the Owner Trust Estate immediately after such payment
and any amounts so paid to the Owner Trustee, in its individual capacity shall
not be so paid out of the Owner Trust Estate but shall be the property of the
Owner Trustee in its individual capacity.
Section 8.4. NON-RECOURSE OBLIGATIONS. Notwithstanding anything in
this Agreement or any Basic Document or, with respect to Certificates, any
Series Supplement or any Series Related Document, the Owner Trustee agrees in
its individual capacity and in its capacity as Owner Trustee for the Trust that
all obligations of the Trust to the Owner Trustee individually or as Owner
Trustee for the Trust shall be recourse to the Owner Trust Estate only and
specifically shall not be recourse to the assets of any Certificateholder.
ARTICLE IX
TERMINATION OF AGREEMENT
Section 9.1. TERMINATION OF AGREEMENT(a) . (a) This Agreement shall
terminate and the Trust shall wind up, dissolve and be of no further force or
effect upon the latest to occur of (i) the maturity or other liquidation of the
last Receivable (including the optional purchase by the Depositor or the Master
Servicer of the corpus of the Trust as described in Section 11.1 of the Master
Sale and Servicing Agreement) and the subsequent distribution of amounts in
respect of such Receivables as provided in the Basic Documents and, with respect
to amounts released from the Lien of the Indenture, distribution thereof to the
Certificateholders, or (ii) the payment to Noteholders and Certificateholders of
each Series of all amounts required to be paid to them pursuant to the Indenture
and this Agreement, including, with respect to amounts released from the
25
Lien of the Indenture, distribution thereof to the Certificateholders, and the
payment to any Series Support Provider of all amounts payable or reimbursable to
it pursuant to the related Series Supplement; PROVIDED, HOWEVER, that the rights
to indemnification under Section 8.2 and the rights under Section 8.1 shall
survive the termination of the Trust. The Master Servicer shall promptly notify
the Owner Trustee of any prospective termination pursuant to this Section 9.1.
The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Owner Trust Estate
nor (z) otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Except as provided in clause (a), neither the Depositor nor any
other Certificateholder shall be entitled to revoke or terminate the Trust.
(c) If any Certificates are in certificated form, notice of any
termination of a Series Trust Estate, specifying the Distribution Date upon
which the Certificateholders of such Series shall surrender their Certificates
to the Certificate Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders of such Series mailed within five Business Days of receipt of
notice of such termination given pursuant to Section 9.1(a) hereof, stating (i)
the Distribution Date upon or with respect to which final payment of the
Certificates of such Series shall be made upon presentation and surrender of the
Certificates of such Series at the office of the Certificate Paying Agent
therein designated, (ii) the amount of any such final payment, (iii) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificates of
such Series at the office of the Certificate Paying Agent therein specified and
(iv) interest will cease to accrue on the Certificates of such Series. The Owner
Trustee shall give such notice to the Certificate Registrar (if other than the
Owner Trustee) and the Certificate Paying Agent at the time such notice is given
to Certificateholders. Upon presentation and surrender of the Certificates of
such Series, the Certificate Paying Agent shall cause to be distributed to
Certificateholders of such Series amounts distributable pursuant to the related
Series Supplement.
(d) If any Certificates are in certificated form, in the event that
all of the Certificateholders holding certificated Certificates of such Series
shall not surrender their Certificates for cancellation within six months after
the date specified in the above-mentioned written notice, the Certificate Paying
Agent shall give a second written notice to the remaining Certificateholders
holding certificated Certificates of such Series to surrender their Certificates
for cancellation and receive the final distribution with respect thereto. If
within one year after the second notice all the certificated Certificates of
such Series shall not have been surrendered for cancellation, the Certificate
Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders holding
certificated Certificates concerning surrender of their Certificates, and the
cost thereof shall be paid out of the funds and other Series Trust Estate assets
that shall remain subject to this Agreement. Any funds remaining in the Trust
after exhaustion of such remedies shall be distributed, subject to applicable
escheat
26
laws, by the Certificate Paying Agent to the Depositor and Holders shall look
solely to the Depositor for payment.
(e) Any funds remaining in the Trust after funds for final
distribution have been distributed or set aside for distribution shall be
distributed by the Certificate Paying Agent to the Depositor.
(f) Upon the winding up of the Trust and its dissolution, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.1. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation (i) satisfying the provisions of
Section 3807(a) of the Business Trust Statute; (ii) authorized to exercise
corporate trust powers; (iii) having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or State
authorities; (iv) having (or having a parent which has) a rating of at least
Baa3 by Moody's or A-1 by Standard & Poors; and (v) acceptable to the
Certificateholders. If such corporation shall publish reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Owner Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Owner Trustee shall
resign immediately in the manner and with the effect specified in Section 10.2.
Section 10.2. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Depositor (or in the event that the
Depositor is not the sole Certificateholder, the Certificate Majority), any
Series Support Provider and the Master Servicer. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Owner Trustee,
meeting the qualifications set forth in Section 10.1 herein, by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee, provided
that the Depositor shall have received written confirmation from each of the
Rating Agencies that the proposed appointment will not result in an increased
capital charge to any Series Support Provider by either of the Rating Agencies.
If no successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee or any Series Support Provider may petition any court of
competent jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Owner Trustee
shall be legally unable to act, or shall be
27
adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Depositor may remove the
Owner Trustee. If the Depositor shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Depositor shall promptly
appoint a successor Owner Trustee, meeting the qualifications set forth in
Section 10.1 herein, by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed, one copy
to any Series Support Provider and one copy to the successor Owner Trustee and
payment of all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.3 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Depositor shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
Section 10.3.SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Depositor, the Master Servicer, each Series Support Provider and to its
predecessor Owner Trustee an instrument accepting such appointment under this
Agreement, and thereupon the resignation or removal of the predecessor Owner
Trustee shall become effective and such successor Owner Trustee, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under this Agreement, with
like effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Agreement; and the Depositor and the predecessor Owner Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Owner Trustee
all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in
this section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Master Servicer shall mail notice of the successor of such
Owner Trustee to all Certificateholders, the Trustee, the Noteholders and the
Rating Agencies. If the Master Servicer shall fail to mail such notice within 10
days after acceptance of appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Master Servicer.
Any successor Owner Trustee appointed pursuant to this Section 10.3
shall promptly file an amendment to the Certificate of Trust with the Secretary
of State identifying the name and principal place of business of such successor
Owner Trustee in the State of Delaware.
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Section 10.4.MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 10.1,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding;
provided further (i) that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies, the Depositor and the Master Servicer and
(ii) any successor Owner Trustee shall file an amendment to the Certificate of
Trust as required by Section 10.3.
Section 10.5.APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Master Servicer and the Owner Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee and any Series Support Provider to act as
co-trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Master Servicer and the Owner Trustee may
consider necessary or desirable. If the Master Servicer shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
the Owner Trustee, subject to the approval of the Certificate Majority (which
approval shall not be unreasonably withheld), shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 10.1 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
29
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Master Servicer and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Master Servicer.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE XI
MISCELLANEOUS
Section 11.1.SUPPLEMENTS AND AMENDMENTS(a) . (a) This Agreement may
be amended from time to time by the parties hereto, by a written instrument
signed by each of them, without the consent of any of the Securityholders;
PROVIDED that an Opinion of Counsel for the Depositor (which Opinion of Counsel
may, as to factual matters, rely upon Officer's Certificates of the Depositor)
is addressed and delivered to the Owner Trustee, dated the date of any such
amendment, to the effect that the conditions precedent to any such amendment
have been satisfied and the Depositor shall have delivered to the Owner Trustee
an Officer's Certificate dated the date of any such Amendment, stating that the
Depositor reasonably believes that such Amendment will not have a material
adverse effect on the Securityholders.
(b) This Agreement may also be amended from time to time with the
consent of the Noteholders, evidencing not less than a majority of the
Outstanding Amount of the Notes, and the consent of the Certificateholders,
representing at least a 50% Percentage Interest, for which the Seller has not
delivered an Officer's Certificate stating that there is no material adverse
effect, for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Securityholders; PROVIDED, HOWEVER, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing of,
30
payments received that are required to be distributed on any Security without
the consent of the related Securityholder, or (ii) reduce the aforesaid
percentage of Securities the Holder of which are required to consent to any such
amendment, without the consent of the Holders of all such Certificates then
outstanding or cause any material adverse tax consequences to any
Certificateholders or Noteholders.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Trustee and each of the
Rating Agencies.
It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Trustee pursuant to this section to approve the particular
form of any proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe. Promptly after the execution of
any amendment to the Certificate of Trust, the Owner Trustee shall cause the
filing of such amendment with the Secretary of State.
(c) The Owner Trustee shall not be required to enter into any
amendment to this Agreement which adversely affects its own rights, duties or
immunities under this Agreement.
Section 00.0.XX LEGAL TITLE TO OWNER TRUST ESTATE IN
CERTIFICATEHOLDERS. The Certificateholders shall not have legal title to any
part of the related Series Trust Estate. The Certificateholders shall be
entitled to receive distributions with respect to their undivided ownership
interest therein only in accordance with Articles V and IX. No transfer, by
operation of law or otherwise, of any right, title or interest of the
Certificateholders to and in their ownership interest in the related Series
Trust Estate shall operate to terminate this Agreement or the trusts hereunder
or entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the related Series Trust Estate.
Section 11.3.LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Certificateholders, the Master Servicer and, to the extent expressly provided
herein, any Series Support Provider, the Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section 11.4.NOTICES. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt personally delivered, delivered by overnight courier
or mailed first class mail or certified mail, in each case return receipt
requested, and shall be deemed to have been duly given upon receipt, if to the
Owner Trustee, addressed to the Corporate Trust Office; if to the Depositor,
addressed to
Household Auto Receivables Corporation, 0000 Xxxx Xxxxxx Xxxxx, Xxx
Xxxxx, Xxxxxx 00000, with a copy to Household Finance
31
Corporation, 0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, Attn:
Treasurer; if to any Series Support Provider, at the address of such Series
Support Provider as set forth in the related Series Supplement; or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
Section 11.5.SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 11.6.SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 11.7.ASSIGNMENTS; SERIES SUPPORT PROVIDER. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. This Agreement shall also inure to
the benefit of any Series Support Provider for so long as a Support Default
shall not have occurred and be continuing. Without limiting the generality of
the foregoing, all covenants and agreements in this Agreement which confer
rights upon any Series Support Provider shall be for the benefit of and run
directly to any Series Support Provider, and any Series Support Provider shall
be entitled to rely on and enforce such covenants, subject, however, to the
limitations on such rights provided in this Agreement and the Basic Documents.
The Series Support Provider, if any, may disclaim any of its rights and powers
under this Agreement (but not its duties and obligations under any Series
Support Provider) upon delivery of a written notice to the Owner Trustee.
Section 11.8.COVENANTS OF THE DEPOSITOR. The Depositor will not at
any time institute against the Trust any bankruptcy proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this Agreement or any of
the Basic Documents.
Section 00.0.XX PETITION. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, each
Certificateholder, by accepting a Certificate, and the Trustee and each
Noteholder by accepting the benefits of this Agreement, hereby covenants and
agrees that they will not at any time institute against the Depositor, or join
in any institution against the Depositor of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificates, the Notes, this Agreement, any of
the Basic Documents, any Series Supplement or any Series Related Documents.
32
Section 00.00.XX RECOURSE. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the related Series Trust Estate only and do not
represent interests in or obligations of the Master Servicer, the Depositor, the
Owner Trustee, the Trustee, any Series Support Provider or any Affiliate thereof
and no recourse may be had against such parties or their assets, except as may
be expressly set forth or contemplated in this Agreement, the Certificates, the
Basic Documents, any Series Supplement or any Series Related Documents.
Section 11.11.HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 11.12.GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.13.MASTER SERVICER. The Master Servicer is authorized to
prepare, or cause to be prepared, execute and deliver on behalf of the Trust all
such documents, reports, filings, instruments, certificates and opinions as it
shall be the duty of the Trust or Owner Trustee to prepare, file or deliver
pursuant to the Basic Documents, any Series Supplement or any Series Related
Documents. Upon written request, the Owner Trustee shall execute and deliver to
the Master Servicer a limited power of attorney appointing the Master Servicer
the Trust's agent and attorney-in-fact to prepare, or cause to be prepared,
execute and deliver all such documents, reports, filings, instruments,
certificates and opinions.
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers hereunto duly authorized as of the
day and year first above written.
WILMINGTON TRUST COMPANY
Owner Trustee
By:/s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Financial Services Officer
HOUSEHOLD AUTO RECEIVABLES
CORPORATION
Depositor
By:/s/ X. X. Xxxxx
----------------------------------------
Name: X. X. Xxxxx
Title: Vice President and Assistant
Treasurer
Acknowledged and Agreed:
HOUSEHOLD FINANCE CORPORATION
Master Servicer
By:/s/ X. X. Xxxx, Xx.
-----------------------------------------
Name: X. X. Xxxx, Xx.
Title: Vice President and Treasurer
U.S. BANK NATIONAL ASSOCIATION
not in its individual capacity
but solely as Certificate Paying Agent
By:/s/ Xxxxxxxx X. Child
-----------------------------------------
Name: Xxxxxxxx X. Child
Title: Vice President
[Signature Page for Amended and Restated
Trust Agreement]
EXHIBIT A
[FORM OF SERIES 2001-2 TRUST CERTIFICATE]
NUMBER
HOUSEHOLD AUTOMOTIVE TRUST 2001-2
SERIES 2001-2 CERTIFICATE
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS SERIES 2001-2 CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND
SUCH STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY
BE MADE UNLESS SUCH RESALE OR TRANSFER (A) IS MADE IN ACCORDANCE WITH Section
3.4 OF THE AMENDED AND RESTATED
TRUST AGREEMENT PERTAINING TO THE HOUSEHOLD
AUTOMOTIVE TRUST 2001-2 (THE "AGREEMENT") AND (B) IS MADE (I) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (II) IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS, (III) TO THE SELLER OR (IV) TO A PERSON WHO THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT THAT IS AWARE THAT THE RESALE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND (C) UPON THE
SATISFACTION OF CERTAIN OTHER REQUIREMENTS SPECIFIED IN THE AGREEMENT. NEITHER
THE DEPOSITOR, THE MASTER SERVICER, THE TRUST NOR THE OWNER TRUSTEE IS OBLIGATED
TO REGISTER THE SERIES 2001-2 CERTIFICATES UNDER THE SECURITIES ACT OR ANY
APPLICABLE STATE SECURITIES LAWS.
---------------------------------
SERIES 2001-2 CERTIFICATE
evidencing a beneficial ownership interest in the assets of the Trust relating
to the Series 2001-2 Trust Estate, which includes a pool of motor vehicle retail
installment sale contracts sold to the Trust by
Household Auto Receivables
Corporation.
(This Series 2001-2 Certificate does not represent an interest in or obligation
of
Household Auto Receivables Corporation or any of its Affiliates, except to
the extent described below.)
THIS CERTIFIES THAT
Household Auto Receivables Corporation is the
registered owner of a nonassessable, fully-paid, beneficial ownership interest
representing a % Percentage Interest in the assets of Household Automotive Trust
2001-2 (the "Trust") formed by
Household Auto Receivables Corporation, a Nevada
corporation (the "Depositor") and the Series 2001-2 Trust Estate.
A-1
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
WILMINGTON TRUST COMPANY
not in its individual
capacity but solely as
Owner Trustee
by Authenticating Agent
---------------------------------------------------------
by
----------------------------------------------------------------------------
Household Automotive Trust 2001-2 (the "Trust"), was created pursuant
to a
Trust Agreement, dated as of June 29, 2001 (the "Agreement"), between the
Depositor and Wilmington Trust Company, as owner trustee (the "Owner Trustee")
as amended and restated as of July 2, 2001 and as supplemented by a Series
2001-2 Supplement dated as of July 2, 2001 (the "Series 2001-2 Supplement"). A
summary of certain of the pertinent provisions of the Agreement and Series
2001-2 Supplement is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement and the Series 2001-2 Supplement.
This certificate is one of the duly authorized certificates of Trust
of Household Automotive Trust 2001-2 designated as Series 2001-2 Certificates.
This Series 2001-2 Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement and the Series 2001-2
Supplement, to which Agreement the holder of this Series 2001-2 Certificate by
virtue of the acceptance hereof assents and by which such holder is bound. The
property of the Trust consists of the Series 2001-2 Trust Estate which includes
a pool of motor vehicle retail installment sale contracts (the "Receivables"),
all monies due thereunder on or after specified Cutoff Dates, security interests
in the vehicles financed thereby, certain bank accounts and the proceeds
thereof, proceeds from claims on certain insurance policies and certain other
rights under the Agreement and the Master Sale and Servicing Agreement and each
related Transfer Agreement, all right, to and interest of, the Depositor in and
to (i) the Master Receivables Purchase Agreement dated as of December 1, 1998
and amended and restated as of March 29, 2001 between Household Automotive
Finance Corporation and the Depositor, as such agreement may be further amended
and supplemented from time to time, (ii) the Master Receivables Purchase
Agreement dated as of December 12, 2000 between Household Automotive Finance
Corporation and the Depositor, as such agreement may be amended and supplemented
from time to time, (iii) the Master Receivables Purchase Agreement dated as of
March 29, 2001 between Household Bank and the Depositor, as such agreement may
be amended and supplemented from time to time, (iv) the Master Receivables
Purchase Agreement dated as of July 2, 2001 between Household Automotive Finance
Corporation and the Depositor, as such agreement may be amended and supplemented
from time to time, and (v) the Master Receivables Purchase Agreement dated as of
July 2, 2001 between Household Bank and the Depositor, as such agreement may be
amended and supplemented from time to time, and each Receivables Purchase
Agreement Supplement and all proceeds of the foregoing.
A-2
Series 2001-2 Notes have been issued pursuant to an Indenture dated as
of July 2, 2001 (the "Indenture"), among the Trust, Household Finance
Corporation, as Master Servicer and U.S. Bank National Association, as Trustee
and the Series 2001-2 Supplement.
Under the Series 2001-2 Supplement, there will be distributed on the
17th day of each month or, if such 17th day is not a Business Day, the next
Business Day (the "Distribution Date"), commencing on August 17, 2001, to the
Person in whose name this Series 2001-2 Certificate is registered at the close
of business on the Business Day preceding such Distribution Date (the "Record
Date") such Series 2001-2 Certificateholder's fractional undivided interest in
any amount to be distributed to Series 2001-2 Certificateholders on such
Distribution Date.
The holder of this Series 2001-2 Certificate acknowledges and agrees
that its rights to receive distributions in respect of this Series 2001-2
Certificate are subordinated to the rights of the Series 2001-2 Noteholders as
described in the Master Sale and Servicing Agreement, the Indenture, the
Agreement and the Series 2001-2 Supplement, as applicable.
Distributions on this Series 2001-2 Certificate will be made as
provided in the Agreement by the Owner Trustee by wire transfer or check mailed
to the Series 2001-2 Certificateholder of record in the Certificate Register
without the presentation or surrender of this Certificate or the making of any
notation hereon. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Series 2001-2
Certificate will be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this Series
2001-2 Certificate at the office or agency maintained for the purpose by the
Owner Trustee in the Corporate Trust Office.
Reference is hereby made to the further provisions of this Series
2001-2 Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Series 2001-2 Certificate shall not entitle the holder hereof to any
benefit under the Agreement or the Master Sale and Servicing Agreement or be
valid for any purpose.
THIS SERIES 2001-2 CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-3
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Series 2001-2 Certificate to be duly
executed.
HOUSEHOLD AUTOMOTIVE TRUST
2001-2
By: WILMINGTON TRUST COMPANY not in its individual
capacity but solely as Owner Trustee
Dated: By:
----------------------------
By:
----------------------------
Name:
Title:
A-4
(Reverse of Certificate)
The Series 2001-2 Certificates do not represent an obligation of, or
an interest in, the Depositor, the Master Servicer, the Owner Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Agreement, the Indenture, the Basic Documents or any Series Related
Documents. In addition, this Series 2001-2 Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections with respect to the Receivables, as more specifically set
forth herein and in the Master Sale and Servicing Agreement. A copy of each of
the Master Sale and Servicing Agreement, the Agreement and the Series 2001-2
Supplement may be examined during normal business hours at the principal office
of the Depositor, and at such other places, if any, designated by the Depositor,
by any Series 2001-2 Certificateholder upon written request.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Series 2001-2 Certificate is registrable
in the Certificate Register upon surrender of this Series 2001-2 Certificate for
registration of transfer at the offices or agencies of the Certificate Registrar
maintained by the Owner Trustee in the Corporate Trust Office, accompanied by a
written instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Series 2001-2
Certificates in authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Agreement is Wilmington Trust Company.
The Certificates are issuable as registered Certificates in any
Percentage Interest not to exceed 100%. As provided in the Agreement and subject
to certain limitations therein set forth, Series 2001-2 Certificates are
exchangeable for new Series 2001-2 Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the person in whose name
this Series 2001-2 Certificate is registered as the owner hereof for all
purposes, and none of the Owner Trustee, the Certificate Registrar nor any such
agent shall be affected by any notice to the contrary.
The Series 2001-2 Certificates may not be acquired by or for the
account of (a) an employee benefit plan (as defined in Section 3(3) of ERISA)
that is subject to the provisions of Title I oF ERISA, (b) a plan (as defined in
Section 4975(e) (1) of the Code) that is subject to Section 4975 of the Code or
(c) any entity whose underlying assets include plan assets by reason of such
plan's investment in the entity (each, a "Benefit Plan"). The Certificate
Registrar shall not register the transfer of a Series 2001-2 Certificate unless
the transferee has delivered to the Owner Trustee a representation letter in
form and
A-5
substance satisfactory to the Trustee to the effect that the transferee is not,
and is not acquiring the Series 2001-2 Certificate for the account of, a Benefit
Plan.
The recitals contained herein shall be taken as the statements of the
Depositor or the Master Servicer, as the case may be, and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee makes
no representations as to the validity or sufficiency of this Series 2001-2
Certificate or of any Receivable or related document.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual or facsimile
signature, this Series 2001-2 Certificate shall not entitle the holder hereof to
any benefit under the Agreement or the Master Sale and Servicing Agreement or be
valid for any purpose.
A-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
-------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
-------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
____________________ Attorney to transfer said Certificate on the books of the
Certificate Registrar, with full power of substitution in the premises.
Dated:
*
------------------------------
Signature Guaranteed:
*
------------------------------
-------------
* NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Certificate Registrar, which requirements include membership
or participation in STAMP or such other "signature guarantee program" as may be
determined by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
A-7
EXHIBIT B
[FORM OF CERTIFICATE OF TRUST]
CERTIFICATE OF TRUST
OF
HOUSEHOLD AUTOMOTIVE TRUST 2001-2
THIS Certificate of Trust of Household Automotive Trust 2001-2 (the
"Trust") is being duly executed and filed on behalf of the Trust by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 DEL. C. 3801 ET SEQ.) (the "Act").
1. NAME. The name of the business trust formed by this Certificate of
Trust is Household Automotive Trust 2001-2.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust in the State of Delaware are Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attn:
Corporate Trust Administration.
3. SERIES TRUST. The Trust may issue series of beneficial interests,
having separate rights, powers or duties with respect to property or obligations
of the Trust, as provided in 12 Del. C. 3804 and 3806(b)(2), such that the
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular series shall be enforceable
against the assets of such series only, and not against the assets of the Trust
generally.
4. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: ---------------------------------
Name:
Title:
B-1
