1
AMENDED AND RESTATED
TRUST AGREEMENT
between
HOUSEHOLD AUTO RECEIVABLES CORPORATION
and
WILMINGTON TRUST COMPANY
Owner Trustee
Dated as of June 1, 2000
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 & 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 Certificates12
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
2
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
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 Instructions20
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
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
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THIS AMENDED AND RESTATED TRUST AGREEMENT, dated
as of June 1, 2000, 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 Agreement, dated as of June 1,
2000, 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 3.9.
"Business Trust Statute" shall mean Chapter 38 of
Title 12 of the Delaware Code, 12 Del. Code 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 Norwest Bank
Minnesota, National Association.
"Certificate Register" and "Certificate Registrar"
shall mean the register mentioned and the registrar
appointed pursuant to 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 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 3.9.
"Expenses" shall have the meaning assigned to such
term in 8.2.
"Holder" or "Certificateholder" shall mean a
Person in whose name a Certificate is registered on the
Certificate Register.
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"Household" shall mean Household Finance
Corporation.
"Indemnified Parties" shall have the meaning
assigned to such term in 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 2000-2 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 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.
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(d) The words "hereof," "herein," "hereunder" and
words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular
provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified;
and the term "including" shall mean "including without
limitation."
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of
such terms and to the masculine as well as to the feminine
and neuter genders of such terms.
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 V", 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.
(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.
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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) . (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) . (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.
(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
8
. 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 New York. Payments
will be received by the Certificate Paying Agent on behalf
of the Trust in New York and payments will be made by the
Trust from New York. 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.
(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.
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(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) . (a) For so long as the Trust has a single
owner for federal income tax purposes, it will, pursuant to
Treasury Regulations promulgated under section 7701 of the
Code, be disregarded as an entity distinct from the
Certificateholder for all federal income tax purposes.
Accordingly, for federal income tax purposes, the
Certificateholder will be treated as (i) owning all assets
owned by the Trust, (ii) having incurred all liabilities
incurred by the Trust, and (iii) all transactions between
the Trust and the Certificateholder will be disregarded.
(b) 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:
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(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 2000-2 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 9.1(e) such counterparty shall not institute
against, or join any other Person in instituting against, it
or the Trust, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar
proceedings under the laws of the United States or any state
of the United States; and
(d) it shall not, for any reason, withdraw or attempt
to withdraw from this Agreement, dissolve, institute
proceedings for it to be adjudicated a bankrupt or
insolvent, or consent to the institution of bankruptcy or
insolvency proceedings against it, or file a petition
seeking or consenting to reorganization or relief under any
applicable 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;
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(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
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 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) . (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 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.
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(e) Upon the written direction of the Depositor, the
Owner Trustee and the Depositor shall enter into one or more
Supplements, providing for the issuance of separate Series
of Certificates. Each Series shall be a separate Series of
the Trust within the meaning of Section 3806(b)(2) of the
Business Trust Statute. Separate and distinct records
(including tax records) shall be maintained for each Series
and the Owner Trust Estate associated with each such Series
shall be maintained for each Series and the Owner Trust
Estate associated with each such Series shall be held in
Trust and accounted for separately from the Owner Trust
Estate of any other Series. Except as specified in this
Agreement or in any Supplement, the Owner Trust Estate of
any Series shall not be subject to claims, debts,
liabilities, expenses or obligations arising from or with
respect to the Trust or any other Series. The debts,
obligations and expenses incurred, contracted 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.
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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 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) . (a) The Certificate Registrar shall keep or
cause to be kept, at the office or agency maintained
pursuant to 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 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 3.8. Certificates
may be issued in any Percentage Interest not to exceed 100%.
(d) Every Certificate presented or, in the case of
certificated Certificates, surrendered for registration of
transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Owner
Trustee and the Certificate Registrar duly executed by the
Certificateholder or his attorney duly authorized in
writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Certificate Registrar, which requirements include membership
or participation in the Securities Transfer Agent's
Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Certificate
Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Exchange Act. Each certificated
Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently disposed of by
the Owner Trustee in accordance with its customary practice.
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(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 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.
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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
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
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 or the making of any notation thereon,
except as provided in Section 9.1(c) with respect to the
final distribution on a Certificates.
16
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 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.
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.
17
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 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 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 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 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.
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.
18
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 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 5.1
as directed in writing by the Depositor. The Owner Trustee
shall sign all tax information returns, if any, filed
pursuant to this 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 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 754 of the
Code.
Section 5.2. Signature on Returns; Tax Matters Partner
(a) . (a) Notwithstanding the provisions of 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.
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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) . (a) Subject to Article IV, the Certificate
Majority shall have the exclusive right to direct the
actions of the Owner Trustee in the management of the Trust,
so long as such instructions are not inconsistent with the
express terms set forth herein, in any Basic Document or,
with respect to Certificates, in any Series Supplement or in
any Series Related Document. The Certificate Majority shall
not instruct the Owner Trustee in a manner inconsistent with
this Agreement or the Basic Documents or, with respect to
Certificates, any Series Supplement or any Series Related
Document.
(b) The Owner Trustee shall not be required to take
any action hereunder or under any Basic Document or, with
respect to Certificates, any Series Supplement or any Series
Related Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the
Owner Trustee or is contrary to the terms hereof or of any
Basic Document or, with respect to Certificates, any Series
Supplement or any Series Related Document or is otherwise
contrary to law.
20
(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 6.3; and no implied duties or
obligations shall be read into this Agreement or any Basic
Document or, with respect to Certificates, any Series
Supplement or any Series Related Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it
hereunder or to prepare or file any Commission filing for
the Trust or to record this Agreement or any Basic Document
or, with respect to Certificates, any Series Supplement or
any Series Related Document. The Owner Trustee nevertheless
agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any Liens
on any part of the Owner Trust Estate that result from
actions by, or claims against, the Owner Trustee (solely in
its individual capacity) and that are not related to the
ownership or the administration of the Owner Trust Estate.
21
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 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
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.
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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 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 6.4
hereof, (iv) for any investments issued by the Owner Trustee
or any branch or affiliate thereof in its commercial
capacity or (v) for taxes, fees or other charges on, based
on or measured by, any fees, commissions or compensation
received by the Owner Trustee. In particular, but not by
way of limitation (and subject to the exceptions set forth
in the preceding sentence):
(a) the Owner Trustee shall not be liable for any
error of judgment made by a Responsible Officer of the Owner
Trustee;
(b) the Owner Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in
accordance with the instructions of the Certificate
Majority, the Depositor, the Master Servicer or any
Certificateholder;
(c) no provision of this Agreement or any Basic
Document or, with respect to Certificates, any Series
Supplement or any Series Related Document shall require the
Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights
or powers hereunder or under any Basic Document or, with
respect to Certificates, any Series Supplement or any Series
Related Document if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of
the Basic Documents or, with respect to Certificates, any
Series Supplement or any Series Related Document, including
the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or
in respect of the validity or sufficiency of this Agreement
or for the due execution hereof by the Depositor or for the
form, character, genuineness, sufficiency, value or validity
of any of the Owner Trust Estate or for or in respect of the
validity or sufficiency of the Basic Documents or, 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;
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(f) the Owner Trustee shall not be liable for the
default or misconduct of the Depositor, any Series Support
Provider, the Trustee or the Master Servicer under any of
the Basic Documents or otherwise and the Owner Trustee shall
have no obligation or liability to perform the obligations
under this Agreement, the Basic Documents or, with respect
to Certificates, any Series Supplement or any Series Related
Document that are required to be performed by the Depositor
or the Certificate Paying Agent under this Agreement, by the
Trustee under the Indenture, any Series Supplement or any
Series Related Document or the Master Servicer under the
Master Sale and Servicing Agreement or any Series Supplement
or any Series Related Document; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation
under this Agreement or otherwise or in relation to this
Agreement or any Basic Document or, with respect to
Certificates, any Series Supplement or any Series Related
Document, at the request, order or direction of the
Certificate Majority or any of the Certificateholders,
unless such Certificate Majority or Certificateholders have
offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to
perform any discretionary act enumerated in this Agreement
or in any Basic Document shall not be construed as a duty,
and the Owner Trustee shall not be answerable for other than
its negligence, bad faith or willful misconduct in the
performance of any such act.
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.
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Section 7.4. Reliance; Advice of Counsel
(a) . (a) The Owner Trustee shall incur no liability
to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper
party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact
or matter the method of the determination of which is not
specifically prescribed herein, the Owner Trustee may for
all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer,
secretary or other authorized officers of the relevant
party, as to such fact or matter, and such certificate shall
constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and
obligations under this Agreement or the Basic Documents, the
Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of
them, and the Owner Trustee shall not be liable for the
conduct or misconduct of such agents or attorneys if such
agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with
counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Owner
Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written
opinion or advice of any such counsel, accountants or other
such persons and according to such opinion not contrary to
this Agreement or any Basic Document or, with respect to
Certificates, any Series Supplement or any Series Related
Document.
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
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. 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.
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.
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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
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.
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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.
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 7.1. The indemnities contained in
this 8.2 and the rights under 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.
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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 11.1 of the Master
Sale and Servicing Agreement) and the subsequent
distribution of amounts in respect of such Receivables as
provided in the Basic Documents and, with respect to amounts
released from the Lien of the Indenture, distribution
thereof to the Certificateholders, or (ii) the payment to
Noteholders and Certificateholders of each Series of all
amounts required to be paid to them pursuant to the
Indenture and this Agreement, including, with respect to
amounts released from the Lien of the Indenture,
distribution thereof to the Certificateholders, and the
payment to any Series Support Provider of all amounts
payable or reimbursable to it pursuant to the related Series
Supplement; provided, however, that the rights to
indemnification under 8.2 and the rights under 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 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.
29
(d) If any Certificates are in certificated form, in
the event that all of the Certificateholders holding
certificated Certificates of such Series shall not surrender
their Certificates for cancellation within six months after
the date specified in the above-mentioned written notice,
the Certificate Paying Agent shall give a second written
notice to the remaining Certificateholders holding
certificated Certificates of such Series to surrender their
Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after
the second notice all the certificated Certificates of such
Series shall not have been surrendered for cancellation, the
Certificate Paying Agent may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the
remaining Certificateholders holding certificated
Certificates concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other
Series Trust Estate assets that shall remain subject to this
Agreement. Any funds remaining in the Trust after
exhaustion of such remedies shall be distributed, subject to
applicable escheat laws, by the Certificate Paying Agent to
the Depositor and Holders shall look solely to the Depositor
for payment.
(e) Any funds remaining in the Trust after funds for
final distribution have been distributed or set aside for
distribution shall be distributed by the Certificate Paying
Agent to the Depositor.
(f) Upon the winding up of the Trust and its
dissolution, the Owner Trustee shall cause the Certificate
of Trust to be canceled by filing a certificate of
cancellation with the Secretary of State in accordance with
the provisions of 3810 of the Business Trust Statute.
30
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 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 X-
0 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 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 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 10.1 and
shall fail to resign after written request therefor by the
Depositor, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall
take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Depositor may remove
the Owner Trustee. If the Depositor shall remove the Owner
Trustee under the authority of the immediately preceding
sentence, the Depositor shall promptly appoint a successor
Owner Trustee, meeting the qualifications set forth in
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 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.
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Section 10.3. Successor Owner Trustee
. Any successor Owner Trustee appointed pursuant to 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 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.
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 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.
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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 10.1 and no notice of
the appointment of any co-trustee or separate trustee shall
be required pursuant to 10.3.
Each separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such
separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the
holding of title to the Trust or any portion thereof in any
such jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee
under this Agreement; and
(iii) the Master Servicer and the Owner Trustee acting
jointly may at any time accept the resignation of or remove
any separate trustee or co-trustee.
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.
33
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, 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 11.2. No Legal Title to Owner Trust Estate in
Certificateholders
. The Certificateholders shall not have legal title to any
part of the related Series Trust Estate. The
Certificateholders shall be entitled to receive
distributions with respect to their undivided ownership
interest therein only in accordance with Articles V and IX.
No transfer, by operation of law or otherwise, of any right,
title or interest of the Certificateholders to and in their
ownership interest in the related Series Trust Estate shall
operate to terminate this Agreement or the trusts hereunder
or entitle any transferee to an accounting or to the
transfer to it of legal title to any part of the related
Series Trust Estate.
34
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) . (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in
writing and shall be deemed given upon receipt personally
delivered, delivered by overnight courier or mailed first
class mail or certified mail, in each case return receipt
requested, and shall be deemed to have been duly given upon
receipt, if to the Owner Trustee, addressed to the Corporate
Trust Office; if to the Depositor, addressed to Household
Auto Receivables Corporation, 0000 Xxxx Xxxxxx Xxxxx, Xxx
Xxxxx, Xxxxxx 00000, with a copy to Household Finance
Corporation, 0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx
00000, Attn: Treasurer; if to any Series Support 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.
35
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 11.9. No Petition
. The Owner Trustee (not in its individual capacity but
solely as Owner Trustee), by entering into this Agreement,
each Certificateholder, by accepting a Certificate, and the
Trustee and each Noteholder by accepting the benefits of
this Agreement, hereby covenants and agrees that they will
not at any time institute against the Depositor, or join in
any institution against the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States
Federal or state bankruptcy or similar law in connection
with any obligations relating to the Certificates, the
Notes, this Agreement, any of the Basic Documents, any
Series Supplement or any Series Related Documents.
Section 11.10. No Recourse
. Each Certificateholder by accepting a Certificate
acknowledges that such Certificateholder's Certificates
represent beneficial interests in the related Series Trust
Estate only and do not represent interests in or obligations
of the Master Servicer, the Depositor, the Owner Trustee,
the Trustee, any Series Support Provider or any Affiliate
thereof and no recourse may be had against such parties or
their assets, except as may be expressly set forth or
contemplated in this Agreement, the Certificates, the Basic
Documents, any Series Supplement or any Series Related
Documents.
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.
36
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/ Xxxxxx X. Xxxxx
Name:Xxxxxx 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
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Certificate Paying Agent
By: /s/ Xxx Xxxxx
Name:Xxx Xxxxx
Title: Corporate Trust Officer
[Signature Page for Amended and Restated Trust Agreement]
37
EXHIBIT A
[FORM OF SERIES 2000-2 TRUST CERTIFICATE]
NUMBER
HOUSEHOLD AUTOMOTIVE TRUST V
SERIES 2000-2 CERTIFICATE
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS SERIES 2000-2 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 3.4 OF THE AMENDED AND
RESTATED TRUST AGREEMENT PERTAINING TO THE HOUSEHOLD
AUTOMOTIVE TRUST V (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 2000-2 CERTIFICATES UNDER
THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS.
_________________________________
SERIES 2000-2 CERTIFICATE
evidencing a beneficial ownership interest in the assets of
the Trust relating to the Series 2000-2 Trust Estate, which
includes a pool of motor vehicle retail installment sale
contracts sold to the Trust by Household Auto Receivables
Corporation.
(This Series 2000-2 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 V (the "Trust") formed by
Household Auto Receivables Corporation, a Nevada corporation
(the "Depositor") and the Series 2000-2 Trust Estate.
38
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 V (the "Trust"), was
created pursuant to a Trust Agreement, dated as of June 1,
2000 (the "Agreement"), between the Depositor and Wilmington
Trust Company, as owner trustee (the "Owner Trustee") as
amended and restated as of June 1, 2000 and as supplemented
by a Series 2000-2 Supplement dated as of June 1, 2000 (the
"Series 2000-2 Supplement"). A summary of certain of the
pertinent provisions of the Agreement and Series 2000-2
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
2000-2 Supplement.
This certificate is one of the duly authorized
certificates of Trust of Household Automotive Trust V
designated as Series 2000-2 Certificates.
This Series 2000-2 Certificate is issued under and
is subject to the terms, provisions and conditions of the
Agreement and the Series 2000-2 Supplement, to which
Agreement the holder of this Series 2000-2 Certificate by
virtue of the acceptance hereof assents and by which such
holder is bound. The property of the Trust consists of the
Series 2000-2 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 the Master Receivables Purchase Agreement dated as of
December 1, 1998 between Household Automotive Finance
Corporation and the Depositor, as amended and supplemented
by the Master Succession and Assumption Agreement dated as
of September 1, 1999 and amended and supplemented further by
the Master Succession, Assumption and Amendment Agreement
dated as of March 1, 2000, the Master Receivables Purchase
Agreement dated as of June 1, 2000 and each Receivables
Purchase Agreement Supplement and all proceeds of the
foregoing.
Series 2000-2 Notes have been issued pursuant to
an Indenture dated as of June 1, 2000 (the "Indenture"),
among the Trust, Household Finance Corporation, as Master
Servicer and Norwest Bank Minnesota, National Association,
as Trustee and the Series 2000-2 Supplement.
Under the Series 2000-2 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 July 17, 2000, to the
Person in whose name this Series 2000-2 Certificate is
registered at the close of business on the Business Day
preceding such Distribution Date (the "Record Date") such
Series 2000-2 Certificateholder's fractional undivided
interest in any amount to be distributed to Series 2000-2
Certificateholders on such Distribution Date.
The holder of this Series 2000-2 Certificate
acknowledges and agrees that its rights to receive
distributions in respect of this Series 2000-2 Certificate
are subordinated to the rights of the Series 2000-2
Noteholders as described in the Master Sale and Servicing
Agreement, the Indenture, the Agreement and the Series 2000-
2 Supplement, as applicable.
39
Distributions on this Series 2000-2 Certificate
will be made as provided in the Agreement by the Owner
Trustee by wire transfer or check mailed to the Series 2000-
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 2000-2 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 2000-2 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 2000-2 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 2000-2
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 2000-2 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.
IN WITNESS WHEREOF, the Owner Trustee, on behalf
of the Trust and not in its individual capacity, has caused
this Series 2000-2 Certificate to be duly executed.
HOUSEHOLD AUTOMOTIVE TRUST V
By: WILMINGTON TRUST COMPANY
not in its individual capacity
but solely as Owner Trustee
Dated: By:_____________________________
By: ____________________________
Name:
Title:
40
(Reverse of Certificate)
The Series 2000-2 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 2000-2 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 2000-2 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 2000-2 Certificateholder upon written request.
As provided in the Agreement and subject to
certain limitations therein set forth, the transfer of this
Series 2000-2 Certificate is registrable in the Certificate
Register upon surrender of this Series 2000-2 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 2000-2
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 2000-2 Certificates
are exchangeable for new Series 2000-2 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 2000-2
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 2000-2 Certificates may not be acquired
by or for the account of (a) an employee benefit plan (as
defined in 3(3) of ERISA) that is subject to the
provisions of Title I of ERISA, (b) a plan (as defined in
4975(e) (1) of the Code) that is subject to 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 2000-2 Certificate
unless the transferee has delivered to the Owner Trustee a
representation letter in form and substance satisfactory to
the Trustee to the effect that the transferee is not, and is
not acquiring the Series 2000-2 Certificate for the account
of, a Benefit Plan.
41
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 2000-2 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
2000-2 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.
42
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.
43
EXHIBIT B
[FORM OF CERTIFICATE OF TRUST]
CERTIFICATE OF TRUST
OF
HOUSEHOLD AUTOMOTIVE TRUST V
THIS Certificate of Trust of Household Automotive Trust
V (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 V.
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:
