Execution Copy
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HONDA TITLING A L.P.
and
HONDA TITLING B L.P.,
as Grantor and UTI Beneficiaries
AMERICAN HONDA FINANCE CORPORATION,
as Servicer,
HVT, INC.,
as Trustee,
DELAWARE TRUST CAPITAL MANAGEMENT, INC.,
as Delaware Trustee,
and, for certain limited purposed only,
U.S. BANK NATIONAL ASSOCIATION,
as Trust Agent
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HONDA LEASE TRUST
SECOND AMENDED AND RESTATED
TRUST AND SERVICING AGREEMENT
Dated as of April 1, 1998
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TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.........................................................1
Section 1.02. Interpretation.....................................................13
ARTICLE TWO
THE TRUST
Section 2.01. General............................................................14
Section 2.02. Offices............................................................14
Section 2.03. Purposes...........................................................14
Section 2.04. Conveyance of Trust Assets.........................................14
Section 2.05. Document Execution and Performance.................................15
ARTICLE THREE
BENEFICIAL INTERESTS IN THE TRUST
Section 3.01. Allocation of Trust Assets to UTI and SUBIs; Sub-Trusts............15
Section 3.02. SUBI Certificates..................................................16
Section 3.03. UTI Certificates...................................................17
Section 3.04. Transfer and Assignment of Certificates; Minimum Net Worth.........17
Section 3.05. Registration Transfer of Certificates; Validity....................18
Section 3.06. Related Beneficiaries..............................................19
Section 3.07. Filings............................................................19
Section 3.08. Allocation of Expenses and Indemnification.........................20
Section 3.09. Insurance Policies.................................................20
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ARTICLE FOUR
PAYMENTS; ACCOUNTS
Section 4.01. Payments from Trust Assets Only....................................21
Section 4.02. Accounts...........................................................21
Section 4.03. Default in UTI Pledge..............................................22
Section 4.04. SUBI Lease Accounts................................................22
ARTICLE FIVE
THE TRUSTEE.
Section 5.01. Duties and Powers of Trustee.......................................23
Section 5.02. Duty of Care.......................................................24
Section 5.03. Certain Matters Affecting the Trustee..............................26
Section 5.04. Trustee Not Liable for Certificates or Leases......................27
Section 5.05. Indemnification of Trustee.........................................28
Section 5.06. Right Not to Act...................................................28
Section 5.07. Qualification of Trustee...........................................28
Section 5.08. Resignation or Removal of Trustee..................................29
Section 5.09. Successor Trustee..................................................29
Section 5.10. Merger or Consolidation of Trustee.................................30
Section 5.11. Co-Trustees, Separate Trustees, Nominees and Trust Agents..........30
Section 5.12. Representations, Warranties and Covenants of Trustee...............32
Section 5.13. Trustee's Fees and Expenses........................................34
Section 5.14. Trustee Stock......................................................34
Section 5.15. Limitation of Liability of Trustee.................................35
ARTICLE SIX
THE SERVICER
Section 6.01. Duties and Powers of Servicer......................................36
Section 6.02. Liability of Servicer; Indemnities.................................37
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TABLE OF CONTENTS
(CONTINUED)
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Section 6.03. Merger of Servicer; Appointment of Nominee.........................38
Section 6.04. Limitation on Liability of Servicer and Others.....................38
Section 6.05. Servicer Not to Resign; Delegation of Duties.......................39
Section 6.06. Servicing Compensation.............................................39
Section 6.07. Powers of Attorney.................................................39
Section 6.08. Protection of Title to Trust.......................................40
ARTICLE SEVEN
TERMINATION
Section 7.01. Dissolution of the Trust...........................................40
Section 7.02. Termination of Sub-Trusts..........................................41
Section 7.03. Beneficiary or Special Purpose Affiliate Bankruptcy................42
ARTICLE EIGHT
MISCELLANEOUS
Section 8.01. Amendment..........................................................42
Section 8.02. Governing Law......................................................43
Section 8.03. Notices............................................................43
Section 8.04. Securitization Holders.............................................43
Section 8.05. Severability of Provisions.........................................43
Section 8.06. Counterparts.......................................................44
Section 8.07. Successors and Assigns.............................................44
Section 8.08. No Petition........................................................44
Section 8.09. Table of Contents and Headings.....................................44
Section 8.10. Tax Reporting and Characterization.................................44
Section 8.11. Certificates Nonassessable and Fully Paid..........................45
Section 8.12. Effect of Agreement; Delaware Co-Trustee Agreement.................45
ARTICLES NINE AND TEN [Reserved].
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SECOND AMENDED AND RESTATED
TRUST AND SERVICING AGREEMENT
This Second Amended and Restated Trust and Servicing Agreement, dated as
of April 1, 1998, is among Honda Titling A L.P. and Honda Titling B L.P., each a
Delaware limited partnership, as grantors (in such capacity, the "Grantors"),
and as initial beneficiaries (in such capacity, the "UTI Beneficiaries"),
American Honda Finance Corporation, a California corporation, as servicer (in
such capacity, the "Servicer"), HVT, Inc., a Delaware corporation, as trustee
(in such capacity, the "Trustee"), Delaware Trust Capital Management, Inc., a
Delaware banking corporation, as Delaware trustee (in such capacity, the
"Delaware Trustee"), and, for the limited purposes set forth herein, U.S. Bank
National Association, a national banking association ("U.S. Bank"), as trust
agent (in such capacity, the "Trust Agent").
WHEREAS, Honda Lease Trust is a Delaware business trust created pursuant
to (i) a trust agreement, dated as of July 17, 1997, among the Grantors, the UTI
Beneficiaries, the Servicer, the Trustee and the Delaware Trustee, as amended
and restated by an amended and restated trust and servicing agreement, dated as
of September 1, 1997 (the "Original Trust Agreement"), among the UTI
Beneficiaries, the Servicer, the Trustee and the Delaware Trustee and, for the
limited purposes set forth therein, the Trust Agent, and (ii) a certificate of
trust filed with the Secretary of State of the State of Delaware on July 18,
1997; and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety for the purpose of taking assignments and
conveyances of and holding in trust various assets described herein.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. DEFINITIONS. Whenever used herein, unless the context
otherwise requires, the following words and phrases shall have the following
meanings:
"1% UTI BENEFICIARY" means the UTI Beneficiary to whom the UTI
Certificate representing the 1% ownership interest in the UTI is initially
issued, or any additional UTI Beneficiary to whom a UTI Certificate representing
a 1% ownership interest in the UTI is issued pursuant to Section 7.03.
"99% UTI BENEFICIARY" means the UTI Beneficiary to whom the UTI
Certificate representing the 99% ownership interest in the UTI is initially
issued, and its permitted successors (including the UTI Beneficiary of any UTI
Certificate evidencing a lesser remaining ownership interest in the UTI
following the transfer of a portion of such UTI Certificate to an additional 1%
UTI Beneficiary designated pursuant to Section 7.03).
1
"ADJUSTED CAPITALIZED COST" means, with respect to any Lease and the
related Leased Vehicle, the Gross Capitalized Cost less the Capitalized Cost
Reduction, which amount is used in calculating the Monthly Payment.
"ADJUSTED LEASE BALANCE" means, with respect to any Lease and the
related Leased Vehicle as of any date, the Adjusted Capitalized Cost minus the
aggregate principal actually paid by or on behalf of the related Lessee on or
prior to such date; provided that the Lease Principal component of Payments
Ahead received but not yet applied shall not be considered to have been paid by
such Lessee.
"ADJUSTED RESIDUAL VALUE" means, with respect to any Extended Lease, the
value of the related Leased Vehicle at the Maturity Date as established or
assigned by the Servicer at the time of such extension.
"ADMINISTRATIVE LIEN" means a first lien upon any Certificate of Title
deemed necessary and useful by the Servicer or by the UTI Beneficiaries and the
Servicer solely to provide for delivery of title documentation to the Trustee or
its designee.
"ADMINISTRATIVE LIENHOLDER" means each Person (other than a
Beneficiary), identified as such from time to time to the Trustee by the
Servicer, in whose name an Administrative Lien will be recorded.
"ADMINISTRATIVE CHARGE" means, with respect to any Lease, any payment
(whether or not part of the fixed monthly payment) payable to the related Lessor
representing a late payment fee, an Extension Fee, an Excess Mileage Fee, an
allocation to the related Lessee of insurance premiums, sales, personal property
or excise taxes or any other similar charge.
"AFFECTED TRUST ASSETS" has the meaning set forth in Section 3.08(b).
"AFFILIATE" of any Person means any other Person that (i) directly or
indirectly controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any employee benefit plan) or (ii) is an officer, director,
member or partner of such Person. For purposes of this definition, a Person
shall be deemed to be "controlled by" another Person if such other Person
possesses, directly or indirectly, the power (i) to vote 5% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
election of directors, members or managing partners of such Person or (ii) to
direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"AGREEMENT" means this Second Amended and Restated Trust and Servicing
Agreement, as amended, supplemented or modified from time to time.
"AHFC" means American Honda Finance Corporation, a California
corporation, and its successors and assigns.
"ASSIGNMENT AGREEMENT" an agreement between AHFC and the Trust pursuant
to which AHFC assigns to the Trust its rights under each Dealer Agreement
described therein.
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"BENEFICIARIES" means, collectively, the Related Beneficiaries of all
Sub-Trusts, and "BENEFICIARY" means any of the Beneficiaries.
"BOOK VALUE" means, with respect to any Lease and the related Leased
Vehicle as of any date, the Adjusted Capitalized Cost minus the aggregate Lease
Principal scheduled to have been received on or prior to such date.
"BOOKED RESIDUAL VALUE" means, with respect to any Lease, the value of
the related Leased Vehicle at the Maturity Date as established or assigned by
the Servicer at the time of origination of such Lease in accordance with its
customary practices for the purpose of determining the Monthly Payment.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or day on
which commercial banking institutions in Torrance, California, Wilmington,
Delaware, Chicago, Illinois, New York, New York or the city in which the Trust
Office is located are authorized or obligated by law, executive order or
government decree to be closed.
"CAPITAL CONTRIBUTION" means any capital contribution to the Trust made
by a Beneficiary, the Servicer or any of their respective Affiliates.
"CAPITALIZED COST REDUCTION" means, with respect to any Lease and the
related Leased Vehicle, the total amount of any rebate, cash payment, net
trade-in allowance and non-cash credits that reduced the Gross Capitalized Cost
at the time of origination of such Lease.
"CASH VALUE" means, with respect to any or all Trust Assets, as the
context may require, on any date, the sum of all cash and the aggregate Adjusted
Lease Balance of the Leases comprising such Trust Assets on such date.
"CERTIFICATE" means a UTI Certificate or a SUBI Certificate, as the
context may require.
"CERTIFICATE OF TITLE" means a certificate of title or other evidence of
ownership of a Leased Vehicle issued by the Registrar of Titles in the
jurisdiction in which the Leased Vehicle is registered.
"CERTIFICATE OF TRUST" means the certificate of trust for the Trust,
substantially in the form of Exhibit A, filed for the Trust with the office of
the Delaware Secretary of State pursuant to Section 3810 of the Delaware Act, as
supplemented, amended or restated from time to time.
"CERTIFICATE REGISTER" has the meaning set forth in Section 3.05.
"COLLECTION ACCOUNT" means, with respect to any Sub-Trust, the account
created, designated and maintained as such pursuant to Section 4.02.
"COLLECTION PERIOD" means with respect to (i) the UTI, each calendar
month, beginning with the month prior to the month in which the Effective Date
occurs, and (ii) a SUBI, "Collection Period" as defined in the related SUBI
Servicing Supplement.
"CO-TRUSTEE" has the meaning set forth in Section 5.11(a).
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"CO-TRUSTEE AGREEMENT" means any instrument or agreement pursuant to
which the Trustee and the UTI Beneficiaries appoint a Co-Trustee.
"CONTROL" has the meaning set forth in Section 8-106 of the UCC.
"DEALER" means a motor vehicle dealer that is a party to a Dealer
Agreement.
"DEALER AGREEMENT" means a lease plan agreement between a Dealer and
AHFC, which sets forth the respective rights and obligations of the parties with
respect to the origination of lease contracts by the Dealer.
"DELAWARE ACT" means the Delaware Business Trust Act, specifically, the
provisions of 12 Del. Code, Section 3801 ET SEQ. as amended.
"DELAWARE CO-TRUSTEE AGREEMENT" means the Co-Trustee Agreement, dated as
of September 1, 1997, among the UTI Beneficiaries, the Servicer, the Trustee and
the Delaware Trustee, as amended pursuant to Section 8.12.
"DELAWARE SECRETARY OF STATE" means the Secretary of State of the State
of Delaware.
"DELAWARE TRUSTEE" means the trustee meeting the requirements of Section
3807 of the Delaware Act, designated in the Certificate of Trust, and its
successors in such capacity as set forth in the Certificate of Trust.
"EFFECTIVE DATE" means April 1, 1998.
"ELIGIBLE INVESTMENTS" means, at any time with respect to a Sub-Trust,
any one or more of the following obligations, instruments or securities:
(i) obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency thereof, provided such obligations are backed by the full faith
and credit of the United States;
(ii) general obligations of or obligations guaranteed by FNMA
or any State, provided that, if any related Rated Securities are
outstanding, such obligations are rated the highest available credit
rating of each Rating Agency for such obligations;
(iii) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States or
of any State, provided that, if any related Rated Securities are
outstanding, at the time of such investment or contractual commitment
providing for such investment either the long-term unsecured debt of
such corporation has the highest available rating from each Rating
Agency for such obligations or the commercial paper or other short-term
debt that is then rated has the highest available credit rating of each
Rating Agency for such obligations;
(iv) certificates of deposit issued by any depository
institution or trust company (including the Trust Agent or, if there is
no Trust Agent, the Trustee) incorporated under the laws of the United
States or any State and subject to supervision
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and examination by banking authorities of one or more of such
jurisdictions, provided that, if any related Rated Securities are
outstanding, the short-term unsecured debt obligations of such
depository institution or trust company has the highest available
credit rating of each Rating Agency for such obligations;
(v) certificates of deposit issued by any bank, trust
company, savings bank or other savings institution and fully insured by
the FDIC;
(vi) repurchase obligations held by the Trustee or, if there
is a Trust Agent, by the Trust Agent, with respect to any obligation or
security described in clauses (i), (ii) or (vii) of this definition or
any other obligation or security issued or guaranteed by any other
agency or instrumentality of the United States, in either case entered
into with a federal agency or a depository institution or trust company
(acting as principal) described in clause (iv) above; and
(vii) such other obligations, instruments or securities as may
be directed by the Servicer, provided that, if any Rated Securities are
outstanding, such obligations, instruments or securities shall be
acceptable to each relevant Rating Agency, as evidenced by a letter from
such Rating Agency to the Trustee to the effect that investments of such
type will not result in a Ratings Effect;
provided, that except as provided in an applicable Supplement or Servicing
Agreement (including any related Servicing Supplement), each of the foregoing
obligations, instruments and securities shall mature no later than the Business
Day prior to the date on which such funds are required to be available for
application pursuant to any applicable Trust Document or Securitization Document
(other than in the case of the investment of monies in obligations, instruments
or securities of which the entity at which the applicable account is located is
the obliger, which may mature on such date), and shall be required to be held to
such maturity.
Notwithstanding the foregoing, (i) no Eligible Investment may be
purchased at a premium and (ii) no obligation or security may be a "Eligible
Investment" unless (a) the Trustee has Control over such obligation or security
and (b) at the time such obligation or security was delivered to the Trustee or
the Trustee became the related Entitlement Holder, the Trustee did not have
notice of any adverse claim with respect thereto within the meaning of Section
8-105 of the UCC.
For purposes of this definition, any reference to the highest available
credit rating of an obligation shall mean the highest available credit rating
for such obligation (excluding any "+" signs associated with such rating) or
such lower credit rating (as approved in writing by each Rating Agency) as will
not result in a Ratings Effect.
"ELIGIBLE LEASE" means a Lease, except as otherwise set forth in the
related Supplement or Servicing Agreement, having the characteristics set forth
in a letter from the UTI Beneficiaries or a Related Beneficiary to the Trustee,
as amended from time to time.
"ENTITLEMENT HOLDER" has the meaning set forth in Section 8-102(a)(7) of
the UCC.
5
"EXCESS MILEAGE FEE" means, with respect to any Lease or Leased Vehicle,
any applicable charge for excess mileage or excess wear and use.
"EXTENDED LEASE" means any Lease that has had its original Maturity Date
extended by the Servicer.
"EXTENSION FEE" means, with respect to any Extended Lease, any payment
required to be made by the Lessee in connection with the extension of such
Lease.
"FDIC" means the Federal Deposit Insurance Corporation, and its
successors;
"FNMA" means the Federal National Mortgage Association, and its
successors.
"GRANTOR" means Honda Titling A L.P. or Honda Titling B L.P., as
applicable, in its capacity as a grantor of the Trust.
"GROSS CAPITALIZED COST" means, with respect to any Lease and the
related Leased Vehicle, the amount agreed to by the Lessee at the time of
origination of such Lease as the value of the Leased Vehicle and any items that
are capitalized during the term of such Lease, including acquisition fees,
taxes, insurance, service agreements and any outstanding balance from a prior
motor vehicle loan or lease contract.
"HOLDER" means, with respect to any Certificate, the Person listed in
the Certificate Register as the registered owner thereof; provided, however,
that a Registered Pledgee shall be entitled to exercise any or all of the rights
or powers of the Holder of a Certificate hereunder, including receiving
distributions, providing notices or giving consents, to the extent that such
entitlement is set forth in the Holder's registration of pledge or the documents
relating to such pledge.
"INSURANCE COSTS" means, with respect to any Insurance Policy, the
premiums therefor, any deductibles and any coinsurance payments.
"INSURANCE POLICY" means any insurance policy, including any residual
value insurance policy, guaranteed automobile protection policy, comprehensive,
collision, public liability, physical damage, personal liability, contingent and
excess liability, credit, accident, health, credit life or unemployment
insurance or any self-insurance, to the extent that any such policy or
self-insurance covers or applies to the Trust, any Sub-Trust, any Lease, any
Leased Vehicle or the ability of a Lessee to make required payments with respect
to the related Lease or the related Leased Vehicle.
"INSURANCE PROCEEDS" means proceeds paid to the Servicer, the Trust or
the Trustee on behalf of the Trust under an Insurance Policy.
"ISSUER" means, with respect to any Securitization, the Person so
designated in the related Securitization Documents.
"LEASE" means any lease contract for a Leased Vehicle assigned to the
Trust or to the Trustee on behalf of the Trust.
6
"LEASE AGREEMENT" means with respect to any Lease, the related Dealer
Agreement or Assignment Agreement.
"LEASE CHARGE" means, with respect to any Lease and any month, the
portion of the Monthly Payment equal to the product of (i) the Book Value as of
the end of the immediately preceding month (or, in the case of the first month,
as of the date of origination of such Lease) and (ii) 1/12 of the related Lease
Factor.
"LEASE FACTOR" means, with respect to any Lease, a per annum yield
determined by the Servicer at the time of origination of such Lease in
accordance with its customary practices.
"LEASE PRINCIPAL" means, with respect to any Lease, that portion of the
Monthly Payment that is not a Lease Charge.
"LEASED VEHICLE" means a new or used Honda or Acura automobile, sport
utility vehicle, minivan or light-duty truck, together with all accessories,
parts and additions constituting a part thereof, and all accessions thereto,
leased to a Lessee pursuant to a Lease.
"LESSEE" means each Person that is a lessee under a Lease, and including
any Person that executes a guarantee on behalf of a lessee.
"LESSOR" means each Person that is the lessor under a Lease or the
assignee thereof, including the Trust.
"LIABILITY" means any liability or expense, including any
indemnification obligation.
"LIEN" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that attach to property by operation of law.
"LIQUID TRUSTEE ASSETS" means the face value of any cash or cash
equivalents held by the Trustee for its own account, up to but not exceeding its
net worth as set forth on its financial books and records.
"LIQUIDATION PROCEEDS" means gross amounts received by the Servicer in
connection with the attempted realization of the full amounts due or to become
due under any Lease, whether from the sale or other disposition of the related
Leased Vehicle (irrespective of whether or not such proceeds exceed the related
Residual Value), the proceeds of repossession or any collection effort, the
proceeds of recourse or similar payments payable under the related Lease
Agreement, receipt of Insurance Proceeds, application of the related Security
Deposit or otherwise.
"LOSS" means any loss, liability, claim, damage or reasonable expense,
including reasonable fees and expenses of counsel and reasonable expenses of
litigation.
"MATURITY DATE" means, with respect to any Lease, the date on which such
Lease is scheduled to terminate as set forth in such Lease at its date of
origination or, in the case of an Extended Lease, the revised termination date.
7
"MONTHLY PAYMENT" means, with respect to any Lease, the amount of each
fixed monthly payment payable to the Lessor in accordance with the terms
thereof, net of any portion of such fixed monthly payment that represents an
Administrative Charge.
"MOODY'S" means Xxxxx'x Investors Service, Inc., and its successors.
"NOTICE PARTY" means, with respect to any notice, each notice party
specified in Section 8.03 at the address and in the manner provided for therein.
"OFFICER'S CERTIFICATE" means a certificate signed by the Chairman of
the Board of Directors, the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of any specified
Person (which, in the case of a (i) limited liability company, shall be any of
the foregoing officers of a member or (ii) partnership, shall be any of the
foregoing officers of the managing general partner or, if there is no managing
general partner, any general partner) and delivered to any other specified
Person.
"OPINION OF COUNSEL" means a written opinion of counsel who may, except
as otherwise expressly provided in the Trust Documents or applicable
Securitization Documents, be counsel for a Beneficiary, the Servicer or any of
their respective Affiliates (including, in each such case, in-house counsel),
which counsel, in the case of opinions delivered to the Trustee, shall be
reasonably satisfactory to the Trustee.
"ORIGINAL TRUST AGREEMENT" has the meaning set forth in the Recitals.
"OTHER SUBI" means, with respect to a SUBI, any SUBI other than such
SUBI.
"OTHER SUBI CERTIFICATE" means a SUBI Certificate relating to an Other
SUBI.
"PAYAHEAD ACCOUNT" means, with respect to any Sub-Trust, the account
created, designated and maintained as such pursuant to Section 4.02.
"PAYMENT AHEAD" means any payment of all or a part of one or more
Monthly Payments remitted by a Lessee with respect to a Lease in excess of the
Monthly Payment due with respect to such Lease, which amount the Lessee has
instructed the Servicer to apply to Monthly Payments due in one or more
subsequent Collection Periods.
"PAYMENT DATE" means, as to each Lease, the date each month on which
Monthly Payments are due under the terms of the Lease.
"PERSON" means any legal person, including any individual, corporation,
partnership, joint venture, association, limited liability company, joint stock
company, trust, bank, trust company, estate (including any beneficiaries
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"PROCEEDING" means any action at law or equity or any other judicial or
administrative proceeding, including any bankruptcy proceeding.
8
"RATED SECURITIES" means, with respect to a Securitization, each class
or series of Securities that has been rated by one or more Rating Agencies at
the request of a Grantor, a Beneficiary or any of their respective Affiliates.
"RATING AGENCY" means each nationally recognized rating agency
identified in a related Supplement that issues a rating on Rated Securities at
the request of a Grantor, a Beneficiary or any of their respective Affiliates.
"RETINAS EFFECT" means, with respect to any Rated Securities, the
qualification, downgrading or withdrawal of the rating then assigned to such
Rated Securities by a related Rating Agency.
"REGISTERED PLEDGEE" means, with respect to any Certificate, the Person
listed in the Certificate Register as the registered pledgee of such
Certificate.
"REGISTRAR OF TITLES" means the applicable department, agency or
official in a State responsible for accepting applications and maintaining
records regarding Certificates of Title and liens thereon.
"RELATED BENEFICIALLY" means, with respect to (i) the UTI, the UTI
Beneficiaries, and (ii) a SUBI, the Person or Persons designated as the "Related
Beneficiary" in the related SUBI Supplement, in each case, together with the
Related Beneficiary's permitted successors and assigns.
"RELATED TRUST ASSETS" means, with respect to a Sub-Trust, the Leases,
Leased Vehicles and other Trust Assets held by the Trust as nominee holder of
legal title for the benefit of the Related Beneficiary and the Holders of the
related Certificates.
"REQUIRED DEPOSIT RATING" means, with respect to any entity and Trust
Account, that (i) the short-term unsecured debt obligations of such entity are
rated in the highest short-term rating category by each Rating Agency (excluding
any "+" signs associated with such rating) or (ii) such entity is a depository
institution or trust company having a long-term unsecured debt rating acceptable
to each Rating Agency and corporate trust powers and the Trust Account is
maintained in a segregated trust account in the corporate trust department of
the related entity.
"RESIDUAL VALUE" means, with respect to any Lease, its Booked Residual
Value or Adjusted Residual Value, as the case may be.
"RESIDUAL VALUE SURPLUS ACCOUNT" means, with respect to any Sub-Trust,
the account created, designated and maintained as such pursuant to Section 4.02.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee or
the Trust Agent, any officer in the corporate trust office of the Trust Agent
or, if there is no Trust Agent, the corporate trust office of the Trustee,
including any president, vice president, assistant vice president, trust
officer, secretary, assistant secretary or other officer customarily performing
functions similar to those performed by the individuals who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of or familiarity with the particular subject.
9
"SCHEDULE OF LEASES AND LEASED VEHICLES" means the microfiche,
microfilm, paper or computer list of Leases and the related Leased Vehicles that
are included as Trust Assets, as such list may be revised and supplemented from
time to time pursuant to Section 6.01, and which shall set forth the following
information with respect to each such Lease and Leased Vehicle in separate
columns:
Lease Number Residual Value
Date of Origination Security Deposit
Maturity Date Sub-Trust to which Lease is assigned
Monthly Payment Payment Date
Vehicle Identification Number Adjusted Capitalized Cost
Model Year Adjusted Lease Balance as of the
Make last day of the immediately
Model preceding month
Lessee Name Lessee Address
"SECURITIZATION" means (i) a financing undertaken by a Beneficiary or a
Special Purpose Affiliate that is secured, directly or indirectly, by Trust
Assets or the UTI, a SUBI or any interest therein and any financing undertaken
in connection with the issuance, pledge or assignment of the UTI or a SUBI and
the related UTI Certificate or SUBI Certificate, as the case may be, (ii) any
sale by a Beneficiary or a Special Purpose Affiliate of an interest in the UTI
or a SUBI or (iii) any other asset securitization, secured loan or similar
transaction involving Trust Assets or any beneficial interest therein or in the
Trust.
"SECURITIZATION DOCUMENTS" means, with respect to a Securitization, each
indenture, trust agreement, pooling and servicing agreement, administration
agreement, servicing agreement, program operating lease and each other operative
document related to such Securitization.
"SECURITIZATION HOLDER" means any entity that becomes a Holder by being,
pursuant to the related Securitization Documents, the Holder (or Registered
Pledgee authorized to exercise certain rights of the Holder) of a Certificate
solely in a trust capacity in connection with the related Securitization.
"SECURITY" means, with respect to a Securitization, any security issued
by or on behalf of the related Issuer.
"SECURITY DEPOSIT" means, with respect to any Lease, the refundable
security deposit specified in such Lease.
"SERVICER" means AHFC (or any successor entity named as such in a
Servicing Agreement), and its successors and permitted assigns.
"SERVICER TERMINATION EVENT" means any servicer termination event (after
the expiration of any applicable notice or cure periods), as such term is
defined in any Servicing Agreement or any Securitization Document, of which the
Trustee has received notice from the related Holder pursuant to the terms of
such agreement or document.
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"SERVICING AGREEMENT" means any servicing agreement among the Trust, the
Servicer and one or more Beneficiaries, as amended, supplemented or modified
from time to time.
"SERVICING SUPPLEMENT" means either a UTI Servicing Supplement or a SUBI
Servicing Supplement, as the context may require.
"SPECIAL PURPOSE AFFILIATE" means a special purpose entity that is an
Affiliate of a Beneficiary and was created for the purpose of one or more
Securitizations.
"STANDARD & POOR'S" means Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors.
"STATE" means any state of the United States, Puerto Rico or the
District of Columbia.
"SUB-TRUST" has the meaning set forth in Section 3.01(b).
"SUBI" has the meaning set forth in Section 3.01(a).
"SUBI ACCOUNT" means each Trust Account created with respect to a
particular SUBI.
"SUBI ASSETS" has the meaning set forth in Section 3.01(a).
"SUBI CERTIFICATE" has the meaning set forth in Section 3.02(a).
"SUBI COLLECTION ACCOUNT" means, with respect to a SUBI, the related
Collection Account created, designated and maintained as such pursuant to
Section 4.02.
"SUBI LEASE ACCOUNT" has the meaning set forth in Section 4.04.
"SUBI SERVICING SUPPLEMENT" means any supplement or amendment to the
Servicing Agreement entered into from time to time relating to a particular SUBI
or SUBI Certificate and the servicing of the related SUBI Assets.
"SUBI SUPPLEMENT" means any supplement or amendment to this Agreement
executed from time to time in connection with the creation and issuance of a
particular SUBI. Each SUBI Supplement shall amend this Agreement only with
respect to the particular SUBI to which it relates.
"SUBSIDIARY" means any corporation or other entity, with respect to
which capital stock or other ownership interests having ordinary voting power to
elect a majority of the board of directors, members or other Persons performing
similar functions, is at the time directly or indirectly owned by the Trust
Agent.
"SUPPLEMENT" means either a UTI Supplement or a SUBI Supplement.
"TAX" or "TAXES" means any and all taxes, including but not limited to,
net income, franchise, value added, ad valorem, gross income, gross receipts,
sales, use, property (personal and real, tangible and intangible), stamp taxes,
levies, imposts, duties, charges, assessments or withholdings of any nature
whatsoever, together with any and all penalties, fines, additions to tax
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and interest imposed by any federal, state, local or foreign government or
political subdivision thereof.
"TRUST" means Honda Lease Trust and its successors.
"TRUST ACCOUNTS" has the meaning set forth in Section 4.02(a).
"TRUST AGENCY AGREEMENT" means an agency agreement entered into pursuant
to Section 5.11(d) between the Trustee and a Trust Agent pursuant to which the
Trustee appoints a Trust Agent.
"TRUST AGENT" means U.S. Bank, in its capacity as initial Trust Agent,
and any other Person with which the Trustee contracts to act as its agent with
respect to carrying out its duties pursuant to a Trust Agency Agreement.
"TRUST ASSETS" means (i) cash capital; (ii) the Leases; (iii) the Leased
Vehicles and all proceeds thereof, including (A) payments made in respect of the
Residual Values thereof, (B) proceeds of the sale or other disposition of the
Leased Vehicles to Lessees or others upon expiration or termination of the
Leases and (C) payments in respect of the Leased Vehicles under any Insurance
Policy; (iv) the Certificates of Title; (v) all rights (but not obligations) of
the Trust, AHFC and the related Lessors or Dealers with respect to the Leases
and the Leased Vehicles, including rights to (A) any incentive or other payments
made by any Person to fund a portion of the payments made related to a Lease or
a Leased Vehicle and (B) proceeds arising from any repurchase obligations
arising under any Lease Agreement; (vi) any Security Deposit related to a Lease
to the extent not payable to the Lessee pursuant to such Lease; (vii) all
Insurance Proceeds and Liquidation Proceeds; (viii) such other assets as may be
designated "Trust Assets" in a Supplement; and (ix) all proceeds of the items
described in clauses (i) through (viii).
"TRUST ASSET TRANSFER" means the allocation of Leases and Leased
Vehicles from previously unallocated Trust Assets to a particular SUBI after its
initial creation in connection with a Securitization pursuant to the related
Securitization Documents.
"TRUST DOCUMENTS" means this Agreement, any Co-Trustee Agreement, the
Certificate of Trust, any Supplement, any Servicing Agreement, any Servicing
Supplement, each Assignment Agreement and any Trust Agency Agreement.
"TRUST EXPENSES" means, for any period, all expenses of the Trust,
including fees and expenses of the Trustee, the Trust Agent, the Delaware
Trustee and any Co-Trustees, but excluding (i) compensation and expenses of the
Servicer, (ii) Insurance Costs (unless paid by the Trustee) and (iii) Taxes
related to Trust Assets (unless paid by the Trustee, and excluding Taxes payable
by the Trustee, the Trust Agent, the Delaware Trustee or any other Co-Trustee in
respect of income earned by such Persons), in each case incurred during or with
respect to such period.
"TRUST OFFICE" means the principal office of the Trust, which initially
shall be 000 Xxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000.
"TRUSTEE" means HVT, Inc;, a Delaware corporation, as trustee of the
Trust, and its successors.
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"TRUSTEE STOCK" means the issued and outstanding capital stock of the
Trustee as of the Effective Date, together with any additional capital stock of
the Trustee that may be issued from time to time thereafter.
"UCC" means the Uniform Commercial Code as in effect in the applicable
jurisdiction.
"UNITED STATES" means the United States of America, its territories and
possessions and areas subject to its jurisdiction.
"U.S. BANK" has the meaning set forth in the Preamble.
"UTI" has the meaning set forth in Section 3.01(a).
"UTI ACCOUNT" means each Trust Account created with respect to the UTI.
"UTI ASSETS" has the meaning set forth in Section 3.01(a).
"UTI BENEFICIARY" means either of the UTI Beneficiaries set forth in the
Preamble or any other UTI Beneficiary that becomes a party to this Agreement
pursuant to Section 7.03(b).
"UTI CERTIFICATES" has the meaning set forth in Section 3.03.
"UTI COLLECTION ACCOUNT" means, with respect to the UTI, the account
created, designated and maintained as such pursuant to Section 4.02.
"UTI PLEDGE" means a pledge of, and a grant of a security interest in,
the UTI, a UTI Certificate or any interest therein, in connection with a
Securitization.
"UTI PLEDGE DEFAULT NOTICE" means the Trustee has actual knowledge or
has received notice from the Servicer or the Registered Pledgee of a related UTI
Pledge to the effect that there is a default with respect to a Securitization
secured by the UTI Pledge.
"UTI SERVICING SUPPLEMENT" means any supplement or amendment to the
Servicing Agreement entered into from time to time relating to the UTI or a
particular UTI Certificate and the servicing of the related UTI Assets.
"UTI SUPPLEMENT" means any supplement or amendment to this Agreement
entered into from time to time in connection with the UTI or a UTI Pledge
pursuant to Section 3.03.
Section 1.02. INTERPRETATION. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires,
(i) terms used in this Agreement include, as appropriate, all genders and the
plural as well as the singular, (ii) references to this Agreement include all
Exhibits hereto, (iii) references to words such as "herein," "hereof" and the
like shall refer to this Agreement as a whole and not to any particular part,
Article or Section within this Agreement, (iv) references to a section such as
"Section 1.01" or an article such as "Article Five" shall refer to the
applicable Section or Article of this Agreement, (v) the term "include" and all
variations thereof shall mean "include without limitation," (vi) the term "or"
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shall include "and/or," (vii) the term "proceeds" shall have the meaning
ascribed to such term in the UCC and (viii) the phrase "Trustee on behalf of the
Trust," or words of similar import, shall, to the extent required to effectuate
the appointment of any Co-Trustee pursuant to Section 5.11, be deemed to refer
to the Trustee (or such Co-Trustee) on behalf of the Trust.
ARTICLE TWO
THE TRUST
Section 2.01. GENERAL. The Trust continued hereby shall be known as
"Honda Lease Trust," in which name the Trustee may conduct the business of the
Trust. The Trustee may engage, in the name of the Trust or in its own name on
behalf of the Trust, in the activities of the Trust, make and execute contracts
and other instruments on behalf of the Trust and sue and be sued. The parties
hereto intend that the Trust be a business trust under the Delaware Act and that
this Agreement shall constitute the governing instrument of the Trust. The
Trustee shall have all rights, powers and duties set forth herein and in the
Delaware Act with respect to accomplishing the purposes of the Trust.
Section 2.02. OFFICES. The principal office of the Trust, and such
additional offices as the Trustee may establish, shall be located at such place
or places, inside or outside of the State of Delaware, as the Trustee may
designate from time to time by written notice to each Beneficiary, each Holder,
each Registered Pledgee and the Servicer. Initially, the principal office shall
be in care of the Trustee at the Trust Office.
Section 2.03. PURPOSES. The purposes of the Trust are: (i) at the
direction of the UTI Beneficiaries, to take assignments and conveyances of, hold
in trust and release its ownership interest in, the Trust Assets as nominee
holder of legal title for the benefit of the Beneficiaries and the Holders, (ii)
to engage in any of the activities described or authorized in this Agreement,
any Supplement or in any amendment hereto or thereto and (iii) to engage in any
and all activities that are necessary or appropriate to accomplish the foregoing
or that are incidental thereto or connected therewith. The Trust shall not
engage in any activity other than the foregoing or other than as required or
authorized by applicable law or the Trust Documents.
Section 2.04. CONVEYANCE OF TRUST ASSETS.
(a) The UTI Beneficiaries may from time to time direct
Dealers pursuant to the related Lease Agreements to assign to the Trust or the
Trustee on behalf of the Trust, in trust, Eligible Leases, Leased Vehicles and
other Trust Assets. In connection therewith, the Leased Vehicles will be titled
in the name of the Trust or the Trustee on behalf of the Trust and the Trustee
will accept such designation and, subject to the other terms of this Agreement
(including each applicable Supplement), will permit the related Certificates of
Title to be issued in the name of the Trust or the Trustee on behalf of the
Trust. Legal title to all Trust Assets shall be vested in
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the Trust or the Trustee on behalf of the Trust as a separate legal entity
except to the extent otherwise specifically provided herein or in any other
Trust Document or where applicable state law requires any Trust Asset to be
vested otherwise, in which case the Trustee will, at the direction of the UTI
Beneficiaries or the Servicer, cause legal title to be held as required
thereby.
(b) The Trustee hereby accepts and agrees to hold in trust
each Trust Asset conveyed to it hereunder, for the use and benefit of, and as
nominee holder of legal title for, the Beneficiaries and the Holders and their
respective successors and assigns as may be designated pursuant to the terms
hereof or as may otherwise succeed to the rights of a Beneficiary or Holder
hereunder.
Section 2.05. DOCUMENT EXECUTION AND PERFORMANCE. The Grantors and the
Beneficiaries hereby authorize and direct the Trustee, and the Trustee hereby
agrees, to: (i) at the request of the Servicer or the UTI Beneficiaries,
execute and deliver all agreements, instruments or documents necessary or
advisable to accept the designation as nominee holder of legal title to Leased
Vehicles and other Trust Assets as described herein and cause the related
Certificates of Title to be issued in the name of the Trust or the Trustee on
behalf of the Trust; (ii) take action that is required or authorized to be taken
by the Trustee pursuant to applicable law as specified in the Trust Documents;
(iii) exercise its rights and perform its duties as Trustee as specified in the
Trust Documents; (iv) at the direction of the Related Beneficiary and the
Servicer (and, with respect to Trust Assets that are the subject of a
Securitization, subject to any additional requirements imposed by the related
Securitization Documents), (A) release, discharge, sell, assign, transfer,
pledge, convey or otherwise dispose of any right, title or interest in and to
any portion of the Related Trust Assets, (B) amend or revoke the terms hereof
with respect to all or any portion of the Related Trust Assets and (C) enter
into any and all agreements or instruments affecting all or any portion of the
Related Trust Assets or affecting any other provision hereof; and (v) appoint
the Servicer as the attorney-in-fact for the Trust as contemplated hereby or by
any Servicing Agreement and direct the Servicer to perform such administrative
duties on behalf of the Trust as are set forth herein and therein.
ARTICLE THREE
BENEFICIAL INTERESTS IN THE TRUST
Section 3.01. ALLOCATION OF TRUST ASSETS TO UTI AND SUBIS; SUB-TRUSTS.
(a) Subject to Section 3.02, the Trustee shall, from time to
time, as directed in writing by the UTI Beneficiaries, establish one or more
"special units of beneficial interest" in the Trust (each, a "SUBI") and
allocate or cause to be allocated to each such SUBI on the books and records of
the Trust such Trust Assets (the "SUBI Assets") as shall be identified by the
UTI Beneficiaries. Each SUBI shall be established pursuant to a SUBI Supplement
and shall have the name and initial Related Beneficiary designated by the UTI
Beneficiaries. The Trustee shall hold the related SUBI Assets for the benefit
of the Holders from time to time of the related SUBI
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Certificates. All Trust Assets that have not been allocated from time to
time to a SUBI (collectively, the "UTI Assets") shall be identified on the
books and records of the Trust as being allocated to the beneficial interest
in the Trust constituting the "undivided trust interest" (the "UTI"). The
Trustee shall hold the UTI Assets for the benefit of the Holders from time to
time of the UTI Certificates.
(b) The UTI and each SUBI shall each constitute a separate
series of the Trust pursuant to Section 3806(b)(2) of the Delaware Act (each, a
"Sub-Trust"). The Servicer shall maintain separate records for each Sub-Trust,
and the Related Trust Assets shall be held and accounted for separately from the
Trust Assets allocated to all other Sub-Trusts. Subject to the right of the
Trustee to allocate certain liabilities, expenses, costs, charges and reserves
as may be provided in the Supplements, and in accordance with Section 3804(a) of
the Delaware Act or to the extent otherwise permitted by applicable law, all
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a Sub-Trust shall be enforceable against the
Related Trust Assets only, and not against the Trust Assets allocated to any
other Sub-Trust. Every note, bond, contract or other undertaking issued by or
on behalf of a Sub-Trust (including each related Certificate) shall include a
recitation limiting the obligation represented thereby to the related Sub-Trust,
and the Related Trust Assets. The Certificate of Trust shall include notice of
the limitation of liabilities of each Sub-Trust in accordance with Section
3804(a) of the Delaware Act. Except as otherwise provided for in this Agreement
or in a Supplement, all payments made on or in respect of the Trust Assets
allocated to each Sub-Trust shall be paid to or upon the order of the Holders of
the Certificates related to such Sub-Trust.
Section 3.02. SUBI CERTIFICATES.
(a) Upon allocation to a SUBI, the related SUBI Assets shall
no longer be UTI Assets unless and until specifically reallocated to the UTI
from the SUBI. Each SUBI shall constitute a beneficial interest solely in the
related SUBI Assets and shall be represented by one or more certificates (each,
a "SUBI Certificate") issued pursuant to a SUBI Supplement. The Trustee shall
deliver each SUBI Certificate to or upon the order of the UTI Beneficiaries.
Each SUBI Certificate and the interest in the SUBI evidenced thereby shall
constitute a "security" within the meaning of Section 8-102(15) of the UCC.
(b) Notwithstanding anything to the contrary contained in
this Section, if a UTI Pledge exists, the Trustee shall create a new SUBI and
issue to or upon the order of the UTI Beneficiaries a new SUBI and one or more
related SUBI Certificates only (i) upon receipt of an Officer's Certificate of
the UTI Beneficiaries, dated as of the date of issuance of the related SUBI
Certificates, to the effect that after giving effect to the creation of such
SUBI, the transfer to the Related Beneficiary (and, if applicable, a Special
Purpose Affiliate) of any SUBI Certificates in connection therewith and the
application by the Related Beneficiary (and, if applicable, a Special Purpose
Affiliate) of the net proceeds from any Securitization involving such SUBI and
SUBI Certificates, no event of default under any Securitization secured by a UTI
Pledge has occurred and is continuing, and (ii) provided that, as of the date of
issuance of such SUBI Certificates, the Trustee has not received a UTI Pledge
Default Notice.
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(c) Each SUBI Certificate shall contain (i) an express waiver
of any claim by the Holder thereof to any proceeds or assets of the Trustee and
to all Trust Assets other than those from time to time allocated to the related
SUBI as SUBI Assets and proceeds thereof, and (ii) an express subordination in
favor of the Holder of any Other SUBI Certificate or any UTI Certificate by the
Holder of such SUBI Certificate to any claim to any Other SUBI Assets or to any
UTI Assets, that, notwithstanding such disclaimer, may be determined to exist.
Section 3.03. UTI CERTIFICATES. The UTI shall constitute a beneficial
interest solely in the UTI Assets and shall initially be represented by two
trust certificates (the "UTI Certificates") registered in the names of Honda
Titling A L.P. and Honda Titling B L.P., respectively, representing a 99% and a
1% ownership interest in the UTI, respectively. The Trustee shall deliver to or
upon the order of each UTI Beneficiary its respective UTI Certificate.
Notwithstanding the foregoing and subject to Section 3.04(a), at the request of
any UTI Beneficiary (but only with the consent of the Registered Pledgee of any
UTI Pledge), the UTI may be represented by one or more additional certificates
that, in the aggregate, represent the entire UTI. Any such additional
certificates will be issued pursuant to a UTI Supplement, which may specify any
terms or conditions relevant to the issuance thereof. Each UTI Certificate and
the interest in the UTI evidenced thereby shall constitute a "security" within
the meaning of Section 8-102(15) of the UCC. Each UTI Certificate shall be
substantially in the form of Exhibit B hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required by this Agreement,
and may have such letters, numbers or other marks of identification and legends
and endorsements consistent with this Agreement as may be directed by the UTI
Beneficiaries. Any portion of a UTI Certificate may be set forth on the reverse
thereof, in which case the following text shall be inserted on the face thereof,
in relative proximity to and prior to the signature of the Trustee executing
such UTI Certificate:
"Reference is hereby made to the further provisions of this UTI
Certificate set forth on the reverse hereof, which provisions
shall for all purposes have the same effect as if set forth at
this place."
Each UTI Certificate shall be printed, lithographed, typewritten, mimeographed,
photocopied or otherwise produced or may be produced in any other manner
consistent with this Agreement as may be determined by the UTI Beneficiaries.
Section 3.04. TRANSFER AND ASSIGNMENT OF CERTIFICATES; MINIMUM NET
WORTH.
(a) Except as provided in Section 7.03(b), neither the UTI
nor any UTI Certificate shall be transferred or assigned, and, to the fullest
extent permitted by applicable law, any such purported transfer or assignment
shall be deemed null, void and of no effect under this Agreement.
Notwithstanding the foregoing, the UTI or one or more UTI Certificates may be
pledged in connection with a Securitization and a security interest therein
granted, and may be transferred or assigned absolutely to or by the pledgee
thereof solely in connection with the exercise of remedies with respect to a
default under or with respect to such Securitization; provided, that any such
pledgee must (i) give a non-petition covenant substantially similar to that
17
set forth in Section 8.08 and (ii) execute an agreement in favor of the
Holders from time to time of SUBI Certificates to release all claims to SUBI
Assets and, in the event that such release is not given effect, to
subordinate fully all claims that it may be deemed to have against any SUBI
Assets.
(b) No SUBI or SUBI Certificate shall be transferred or
assigned except to the extent specified in this Agreement or in any related
Supplement, and, to the fullest extent permitted by applicable law, any
purported transfer or assignment other than as so specified shall be deemed
null, void and of no effect under this Agreement. Notwithstanding the
foregoing, any SUBI Certificate and the interest in the SUBI evidenced thereby
may be (i) transferred, assigned or pledged to any Special Purpose Affiliate or
(ii) transferred, assigned or pledged by the Related Beneficiary or a Special
Purpose Affiliate to or in favor of a trustee for one or more securitization
trusts or other entities solely for the purpose of securing or otherwise
facilitating one or more Securitizations; provided that, in each case the
transferee, assignee or pledgee must (i) give a non-petition covenant
substantially similar to that set forth in Section 8.08 and (ii) execute an
agreement in favor of each Holder from time to time of any UTI Certificate and
any Other SUBI Certificate, to release all claims to the Trust Assets allocated
to the UTI and each Other SUBI and, in the event that such release is not given
effect, to subordinate fully all claims that it may be deemed to have against
the UTI Assets and all Other SUBI Assets.
(c) The UTI Beneficiaries shall at all times maintain a
minimum collective net worth (excluding the value of any UTI Certificates of
which they are Holders) equal to 10% of the net Capital Contributions made by
all of the UTI Beneficiaries to the UTI. Each Related Beneficiary and related
Special Purpose Affiliate shall maintain such minimum collective net worth or
interest in a SUBI as may be required by an applicable SUBI Supplement. For the
purposes of this paragraph, all Trust Assets that are conveyed as, or acquired
with the proceeds of, Capital Contributions to the Trust pursuant to Section
2.04(a) shall be deemed to be Capital Contributions to the UTI or the SUBI, as
applicable, to which such Trust Assets are allocated as of the date on which the
net worth calculation is made.
Section 3.05. REGISTRATION TRANSFER OF CERTIFICATES; VALIDITY.
(a) The Trustee shall keep or cause to be kept at the
corporate trust office of the Trustee (or the Trust Agent, if applicable)
sufficient books for the registration of transfer or pledge of the Certificates
(the "Certificate Register"), which shall at all times be open to inspection by
the Beneficiaries and the Holders. Subject to Sections 3.02(b) and 3.04 and any
other restrictions on transfer or pledge specified in a Certificate or a related
Supplement, upon presentation for such purpose, provided that the requirements
of Section 8-401 of the UCC have been met, the Trustee shall, under such
reasonable regulations as it may prescribe, register or cause to be registered
on the Certificate Register the transfer or pledge of such Certificate,
accompanied by a written instrument of transfer or pledge conforming to the
requirements specified in such Certificate or Supplement, presented for
registration of transfer or pledge by the Holder thereof in conformity with such
additional requirements as may be specified in such Certificate or Supplement.
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(b) A Certificate bearing the manual or facsimile signatures
of individuals who were, at the time when such signatures were affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefits 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 Certificate or did not hold such offices at the date of such
Certificate.
Section 3.06. RELATED BENEFICIARIES.
(a) Each Related Beneficiary shall have, with respect to the
applicable Sub-Trust, the rights and obligations of a Beneficiary or Related
Beneficiary specified herein, in any related Supplement and in any other
applicable Trust Documents. A Related Beneficiary may also be a Holder of one
or more Certificates related to any Sub-Trust, including the Sub-Trust with
respect to which it is the Related Beneficiary, and thereby acquire all of the
rights accorded to a Holder under this Agreement, any related Supplement and any
other applicable Trust Documents, subject to such restrictions on voting or
other rights as may be contained herein or therein.
(b) Subject to Article Five, the Related Beneficiary may
direct the Trustee to take action or refrain from taking action with respect to
Related Trust Assets except to the extent that such action or inaction would
conflict with any other provision of this Agreement, the other Trust Documents
or any related Securitization Documents. Such direction by a Related
Beneficiary shall be accompanied by an Officer's Certificate delivered to the
Trustee certifying that such direction is authorized by or not in conflict with
this Agreement, the other Trust Documents or any related Securitization
Documents. Such action may include, among other things, directing the Trustee
to deliver or distribute to or upon the order of the Related Beneficiary all or
any number of the related Leased Vehicles, Leases or other Related Trust Assets.
Section 3.07. FILINGS. The Grantors, the Beneficiaries and the Trustee
shall undertake all other and future actions and activities as may be deemed
reasonably necessary by the Servicer or a Related Beneficiary to perfect (or
evidence) and confirm the foregoing allocations of Trust Assets to the UTI and
any SUBIs, including filing or causing to be filed UCC financing statements and
executing and delivering any related filings, documents or writings under the
Trust Documents and any related Securitization Documents. Notwithstanding the
foregoing, except as otherwise provided in a Supplement or the related
Securitization Documents, in no event shall any Grantor, any Beneficiary or the
Trustee be required to take any action to perfect any (i) allocation of UTI
Assets in connection with a UTI Pledge or (ii) security interest that may be
deemed to be held by any party in any Leased Vehicle allocated to the UTI. Each
Grantor and each Beneficiary hereby revocably makes and appoints each of the
Trustee and the Servicer, and any of their respective officers, employees or
agents, as its true and lawful attorney-in-fact with power to sign on behalf of
the Grantors or the Beneficiaries any financing statements, continuation
statements, security agreements, mortgages, assignments, affidavits, letters of
authority, notices or similar documents necessary or appropriate to be executed
or filed pursuant to this Section.
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Section 3.08. ALLOCATION OF EXPENSES AND INDEMNIFICATION.
(a) Except as otherwise provided in a Supplement, the UTI
Beneficiaries shall be liable for all debts and obligations arising with respect
to the UTI Assets or the UTI; provided, however, that any liability of the UTI
Beneficiaries with respect to any Securitization shall be as set forth in the
related Securitization Documents. To the extent that a UTI Beneficiary (or its
general partner, if such UTI Beneficiary is a partnership) shall have paid or
suffered any Liability with respect to the UTI Assets or the UTI, to the extent
that such Liability was not caused by the willful misconduct or bad faith of
such UTI Beneficiary (or such general partner, if such UTI Beneficiary is a
partnership), such UTI Beneficiary shall be indemnified, defended and held
harmless out of the UTI Assets in accordance with Section 3.08(b) against any
such Liability (including reasonable attorneys' and other professionals' fees
and expenses).
(b) Notwithstanding any other provision of this Agreement or
any other Trust Document, (i) to the extent that a Liability shall be incurred
or suffered with respect to, or is attributable to, one or more Trust Assets
(the "Affected Trust Assets") allocated to one or more Sub-Trusts, such
Sub-Trust(s) shall, from and to the extent of monies from time to time on
deposit in the related Collection Accounts, bear in full such Liability pro rata
in the ratio of the aggregate Cash Value of the Affected Trust Assets in all
such Sub-Trusts and, in accordance with Section 3804(a) of the Delaware Act, all
other Sub-Trusts shall bear none of such Liability, but (ii) to the extent that
any such Liability is suffered with respect to all Trust Assets generally, the
UTI and all SUBIs shall from and to the extent of monies from time to time on
deposit in the related Collection Accounts, bear such Liability in proportion to
the ratio of the aggregate Cash Value of the Trust Assets in a particular
Sub-Trust to the aggregate Cash Value of all Trust Assets. In each case in
which more than one Sub-Trust is to bear any such Liability, the Trustee shall,
at the direction of the Servicer, transfer periodically from each of the
applicable Collection Accounts to the Person or Persons to whom due or such
related Trust Account as may be designated by the related Supplement, as the
case may be, the share of such Liability borne by each such Sub-Trust.
(c) If, notwithstanding the provisions of this Agreement and
Section 3804 of the Delaware Act, a third-party claim against Trust Assets is
satisfied out of the Trust Assets in proportions other than as provided in
Section 3.08(b), then, notwithstanding anything to the contrary contained
herein, the Servicer shall promptly identify and reallocate (or cause the
Trustee to identify and reallocate) the remaining Trust Assets among the UTI and
each SUBI such that each shall bear the expense of the third party claim as
nearly as possible as if such claim had been allocated as provided in Section
3.08(b).
Section 3.09. INSURANCE POLICIES.
(a) Except as otherwise provided in a Supplement, each
Related Beneficiary (or Special Purpose Affiliate, if applicable) shall cause to
be maintained, and no Beneficiary or Special Purpose Affiliate shall, without
the prior written consent of the Servicer and notice to the
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Trustee, cause the termination of, one or more contingent liability, excess
liability or umbrella Insurance Policies providing coverage against
third-party claims that may be raised against the Trust, the Trustee or the
Trust Agent with respect to each Leased Vehicle, including automotive
liability coverage in an amount at least equal to $5 million per claim (which
policy or policies may be a blanket insurance policy or policies covering the
Related Beneficiary or Special Purpose Affiliate, as applicable, and one or
more Affiliates).
(b) Each Related Beneficiary or Special Purpose Affiliate, as
applicable, shall cause each Insurance Policy required to be maintained by it
pursuant to this Section to name the Trust or the Trustee on behalf of the Trust
as an additional insured or loss payee.
ARTICLE FOUR
PAYMENTS; ACCOUNTS
Section 4.01. PAYMENTS FROM TRUST ASSETS ONLY.
(a) Except as otherwise provided in this Agreement and the
other Trust Documents, all payments, if any, to be made by the Trustee other
than amounts (i) owing by the Trustee arising from its willful misfeasance, bad
faith or negligence or (ii) advanced by the Servicer shall be made only from
available Trust Assets and only to the extent that the Trustee shall have
received income or proceeds therefrom to make such payments in accordance with
the terms hereof and thereof.
(b) Except as otherwise provided in this Agreement and the
other Trust Documents, all amounts payable to a Holder shall be paid or caused
to be paid by the Trustee or the Servicer, as the case may be, to or for the
account of such Holder in immediately available funds by wire transfer.
Section 4.02. ACCOUNTS.
(a) Except as otherwise provided in any Supplement or
Servicing Agreement, the Trustee will establish and maintain with respect to the
UTI and each SUBI a Collection Account, a Payahead Account and a Residual Value
Surplus Account. The Trustee shall establish and maintain with respect to the
UTI or any SUBI such other accounts as may be specified in an applicable
Supplement or any Servicing Agreement. Except as otherwise provided in an
applicable Supplement or Servicing Agreement, each of such accounts
(collectively, together with any SUBI Lease Accounts created pursuant to Section
4.04, the "Trust Accounts") shall be a segregated trust account and shall be
established and maintained with the Trustee or the Trust Agent in the name of
the Trustee so long as the Trustee or the Trust Agent, as applicable, has the
Required Deposit Rating. Except as otherwise provided in the Trust Documents
and the related
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Securitization Documents, none of the Grantors, the Servicer, the
Beneficiaries, any Special Purpose Affiliates or any Holders shall have any
right to withdraw funds from any Trust Account without the express written
consent of the Trustee; provided, however, that the Trustee, with the express
written consent of the Related Beneficiary or a Special Purpose Affiliate, as
applicable, shall so consent as to each Trust Account to the extent required
by an applicable Supplement. The Trustee may authorize the Related
Beneficiary or Special Purpose Affiliate, as applicable, or the Servicer, to
make deposits into and disbursements from any Trust Account in accordance
with the Trust Documents and any applicable Securitization Documents. Except
as otherwise provided in a Supplement or any applicable Securitization
Documents, all amounts that are held in the Trust Accounts shall be invested
by the Trustee at the direction of the Servicer in Eligible Investments until
distributed or otherwise applied in accordance with the Trust Documents and
any applicable Securitization Documents. Except as otherwise provided in an
applicable Supplement or Servicing Agreement, all earnings from the
investment of monies in a Trust Account shall be deposited upon receipt into
such Trust Account and any loss on such investment, together with all
investment expenses, shall be charged to such Trust Account. If the Trustee
or the Trust Agent, as applicable, at any time does not have the Required
Deposit Rating, the Servicer shall, with the assistance of the Trustee or the
Trust Agent, as necessary, cause the related Trust Account to be moved to a
depository institution or trust company that is organized under the laws of
the United States or any xxxx and has the Required Deposit Rating.
(b) Each SUBI Account shall relate solely to the related SUBI
and each UTI Account shall relate solely to the UTI, and any funds therein shall
not be commingled with any other monies, except as otherwise provided in or
contemplated by the Trust Documents and any applicable Securitization Documents.
The Trustee will account for all amounts received by the Trustee relating to
each Trust Account from the Related Trust Assets and proceeds relating thereto.
Section 4.03. DEFAULT IN UTI PLEDGE. In the event of a UTI Pledge
Default Notice, the Trustee shall (i) not create any new SUBI and (ii) direct
the Servicer to ensure that no additional Leases or Leased Vehicles are assigned
to the Trust (other than (A) as provided for in Section 4.04 or (B) those Leases
and Leased Vehicles the initial net investment value of which on the books of
the Trust does not exceed the sum of any capital contributions made to the
Grantors (and by the Grantors to the Trust) specifically to fund the acquisition
by the Trust of such Leases and Leased Vehicles for allocation to the UTI).
Section 4.04. SUBI LEASE ACCOUNTS. In the event that for any reason
(i)(a) one or more different Servicers shall be engaged to service one or more
Sub-Trusts or (b) circumstances with respect to any Securitization secured by a
UTI Pledge are such that either (1) the Trustee has given to the Servicer notice
that a Trust Asset Transfer into one or more SUBIs would cause a default to
occur in any Securitization secured by such UTI Pledge or (2) there has been a
UTI Pledge Default Notice and (ii) at such time the Trustee, acting pursuant to
a SUBI Supplement at the direction of the Related Beneficiary, would otherwise
be causing the Servicer to effect Trust Asset Transfers from the UTI into one or
more SUBIs, then: (A) the Trustee shall establish and maintain in its name for
each SUBI a separate "SUBI Lease Account," each of which shall be a
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Trust Account and a SUBI Account; (B) to the extent that the Trustee would,
but for clause (i) above, cause the transfer of funds from any SUBI
Collection Account to the UTI Collection Account in connection with any Trust
Asset Transfer, the Trustee shall instead cause the transfer of such funds
from such SUBI Collection Account to the related SUBI Lease Account; (C) the
Trustee shall direct the Servicer servicing the related SUBI to acquire on
behalf of the Trust, for the account of such SUBI rather than for the UTI,
Leases and Leased Vehicles; and (D) the Trustee shall apply any such funds in
any such SUBI Lease Account directly to reimburse the Servicer then servicing
such SUBI for any payments made by it to honor drafts of Dealers in respect
of such Leases and Leased Vehicles. In the event that Leases and Leased
Vehicles are being acquired by any Servicer(s) on behalf of the Trust both
with respect to the UTI and any SUBI simultaneously, the Trustee shall first
allocate all such Leases and Leased Vehicles to the SUBI until funds
available for such purpose in all SUBI Lease Accounts are exhausted and shall
then allocate all remaining Leases and Leased Vehicles to the UTI.
ARTICLE FIVE
THE TRUSTEE
Section 5.01. DUTIES AND POWERS OF TRUSTEE.
(a) The Trustee undertakes to perform such duties and engage
in such activities, and only such duties and activities, as are specified in
this Agreement and the other Trust Documents or as may be directed from time to
time by the Related Beneficiary in a manner not contrary to the terms hereof or
thereof, including in connection with (i) a Securitization, (ii) sales or
pledges of Leases, Leased Vehicles and other Trust Assets to the extent
permitted by any Securitization and (iii) activities ancillary thereto. The
Trustee shall have such powers as are necessary and appropriate to the conduct
of its duties as set forth in this Agreement and any Supplement.
(b) Except as otherwise provided in this Agreement and the
other Trust Documents, neither the Trust nor the Trustee shall (i) issue
interests in or securities of the Trust other than the UTI, the UTI
Certificates, one or more SUBIs and the related SUBI Certificates, (ii) borrow
money (except from the UTI Beneficiaries or their Affiliates in connection with
the acquisition of Leases and Leased Vehicles), (iii) make loans, (iv) invest in
or underwrite securities, (v) offer securities in exchange for Trust Assets
(other than Certificates), (vi) repurchase or otherwise reacquire any
Certificate (other than for purposes of cancellation) except as permitted by or
in connection with any Securitization or (vii) grant any security interest in or
Lien upon any Trust Assets.
(c) At the direction of the Servicer or the Related
Beneficiary, the Trustee shall undertake the following ministerial activities:
(i) apply for and maintain (or cause to be applied for and maintained) all
licenses, permits and authorizations necessary or appropriate to carry on its
duties as Trustee hereunder in each jurisdiction that the Servicer or the
Related Beneficiary, as
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applicable, deems appropriate; (ii) file (or cause to be filed) in each
jurisdiction that the Servicer or Related Beneficiary, as applicable, deems
appropriate (A) notice reports and other required filings and (B)
applications for certificates of title so as to cause the Trust or the
Trustee on behalf of the Trust to be recorded as the holder of legal title of
the Leased Vehicles (and execute and deliver to each Dealer a power of
attorney sufficient to allow such Dealer to so record the Trust or the
Trustee on behalf of the Trust as the holder of legal title to such Leased
Vehicles); (iii) to the extent that the Related Beneficiary or the Servicer,
as applicable, deems it necessary or useful to have an Administrative Lien
recorded on Certificates of Title, file (or cause to be filed) in each
jurisdiction that the Related Beneficiary or the Servicer, as applicable,
reasonably deems appropriate such applications as are necessary or
appropriate to record upon each Certificate of Title an Administrative Lien
in favor of an Administrative Lienholder; (iv) be the assignee of the
Dealer/initial lessor with respect to the Leases in the event that the Trust
cannot be such assignee; and (v) pay (or cause to be paid) all applicable
Taxes and fees properly due and owing in connection with the Trustee's
activities under this Agreement and the other Trust Documents to which it is
a party (other than Taxes in respect of income earned by the Trustee). The
Servicer or the Related Beneficiary, as applicable, shall pay, or make to the
Trustee an advance to pay, the costs or expenses of the foregoing, subject to
reimbursement to the extent provided in any applicable Servicing Agreement.
(d) The Trustee shall establish accounts and receive,
maintain, invest and disburse funds in accordance with Article Four and the
other Trust Documents.
(e) The Trustee, upon receipt of each resolution,
certificate, statement, opinion, report, document, order or other instrument
that shall be specifically required to be furnished to it pursuant to the Trust
Documents shall examine such item to determine whether it conforms to the
requirements of the Trust Documents.
(f) Neither the Servicer nor any Beneficiary shall take, or
direct the Trustee to take, any action that (i) is inconsistent with the
purposes of the Trust as set forth in Section 2.03 or (ii) would result in the
treatment of the Trust for federal income tax purposes as an association (or a
partnership) taxable as a corporation.
(g) The Trustee agrees to perform or cause to be performed
the obligations of the Trust, the Trustee and the Trustee on behalf of the Trust
set forth in the Servicing Agreement and the other Trust Documents upon the
terms and subject to the conditions specified therein.
Section 5.02. DUTY OF CARE.
(a) Except during the continuance of a Servicer Termination
Event, the Trustee need perform only those duties which are specifically set
forth in this Agreement and the other Trust Documents. During the continuance
of a Servicer Termination Event, the Trustee shall exercise such of the rights
and powers vested in it by this Agreement and the other Trust
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Documents and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct
of such prudent person's own affairs. No provision of this Agreement shall
be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, its own bad faith or its own
willful misconduct; provided, however, that the Trustee shall not be
personally liable:
(i) for any action taken, suffered or omitted by it or any
error of judgment, in each case made in good faith by any Responsible
Officer of the Trustee or the Trust Agent customarily performing
functions similar to those performed by such officers or to whom any
corporate trust matter is referred because of such individual's
knowledge of or familiarity with the particular subject, unless it shall
be proved that the Trustee or Trust Agent was negligent or acted with
bad faith or willful misconduct in performing its duties in accordance
with the terms of this Agreement; and
(ii) with respect to any action taken, suffered or omitted to
be taken in good faith in accordance with the express directions of (A)
to the extent relating to the UTI, a UTI Beneficiary or any Registered
Pledgee of a UTI Pledge (to the extent that such Registered Pledgee is
authorized to give such directions) or (B) to the extent relating to a
SUBI, the Holder or Registered Pledgee (to the extent such Registered
Pledgee is authorized to give such directions) of a SUBI Certificate in
connection with a Securitization relating to the exercise of any power
conferred upon the Trustee under this Agreement.
(b) Notwithstanding Section 5.02(a), the Trustee shall not be
required to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties under this Agreement or the other Trust
Documents, or in the exercise of any of its rights or powers, if there shall be
reasonable grounds for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained herein or therein shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of the Servicer hereunder or under any Servicing Agreement
except during such time, if any, as the Trustee shall be successor to, and be
vested with the rights, duties, powers and privileges of, the Servicer in
accordance with this Agreement or any other Trust Document.
(c) Except as otherwise authorized by the Trust Documents,
the Trustee shall take no action if the Trustee has been notified by a
Beneficiary, a Special Purpose Affiliate or a Holder, or has actual knowledge,
that such action would impair the beneficial interests in the Trust, impair the
value of any Trust Asset or adversely affect the rating of any related Rated
Securities.
(d) All information obtained by the Trustee regarding the
other parties hereto or any of their respective Affiliates, or regarding the
administration of the Trust, the Lessees, the
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Leased Vehicles or the Leases, whether upon the exercise of its rights under
this Agreement, any other Trust Document or otherwise, shall be maintained by
the Trustee in confidence and shall not be disclosed to any Person other than
to the Trust Agent, the Grantors, the UTI Beneficiaries, the Related
Beneficiary, the related Holders, the Servicer or any related Special Purpose
Affiliate unless such disclosure is required by applicable law or regulation
or pursuant to valid legal process, or unless such information is already
otherwise publicly available.
Section 5.03. CERTAIN MATTERS AFFECTING THE TRUSTEE. Except as
otherwise provided in this Agreement:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties; provided that it shall be obligated to examine each
such item specifically required to be furnished to it pursuant to the Trust
Documents to determine whether or not it conforms to the requirements of this
Agreement or the other Trust Documents, as applicable. In particular, whenever
any Trust Document provides that the Trustee shall receive or may rely on the
instructions or directions of a Beneficiary or a Holder, any written instruction
or direction purporting to bear the signature of any authorized signatory of
such Beneficiary or Holder reasonably believed by the Trustee to be genuine may
be deemed by the Trustee to have been signed or presented by the proper party.
(b) The Trustee may consult with counsel, and any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel.
(c) Subject to Section 5.02(a), the Trustee shall be under no
obligation to exercise any of the discretionary rights or powers vested in it by
this Agreement or any other Trust Document, or to institute, conduct or defend
any litigation hereunder or in relation hereto or thereto, at the request, order
or direction of one or more Beneficiaries or Holders pursuant to this Agreement
or any other Trust Document, unless the Person or Persons making such request
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities, including reasonable fees and reasonable
expenses of counsel, that may be incurred therein or thereby.
(d) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by one or more
Beneficiaries or Holders. Notwithstanding the foregoing, if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee not reasonably assured to it by the security afforded to it by the terms
of this Agreement or any other Trust Document,
26
the Trustee may require reasonable indemnity against such cost, expense or
liability as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Person(s) requesting such examination
or, if paid by the Trustee, shall be reimbursed as a Trust Expense.
(e) The Trustee may execute any of the trusts or powers or
perform any duties under this Agreement or the other Trust Documents either
directly or by or through agents, attorneys, Trust Agents or custodians and
shall not be liable for the negligence or willful misconduct of such agents,
attorneys, Trust Agents or custodians appointed with due care.
(f) The Trustee shall make a copy of this Agreement available
for examination by Holders and Beneficiaries during normal business hours at its
principal office, or at such other places, if any, designated by the Trustee.
Section 5.04. TRUSTEE NOT LIABLE FOR CERTIFICATES OR LEASES. The
Trustee shall not have any obligation to perform any of the duties of either
Grantor or the Servicer unless explicitly set forth in this Agreement or any
other Trust Document to which the Trustee is a party. The Trustee shall not at
any time have any responsibility or liability for or with respect to (i) the
legality, validity and enforceability of any security interest in any Trust
Asset, (ii) the perfection or priority of any such security interest or the
maintenance of any such perfection and priority, (iii) the efficacy of the Trust
or its ability to generate the payments to be distributed to the Holders under
the Trust Documents, including the existence, condition, location and ownership
of any Trust Asset, (iv) the existence and enforceability of any Insurance
Policy, (v) the existence and contents of any Lease or any computer or other
record thereof, (vi) the validity of the assignment of any Trust Asset to the
Trust or the Trustee on behalf of the Trust or of any intervening assignment,
(vii) the completeness, performance or enforcement of any Lease, (viii) the
compliance by either Grantor or the Servicer with any covenant or the breach by
either Grantor, any Beneficiary or the Servicer of any warranty or
representation in any Trust Document and the accuracy of any such warranty or
representation prior to the Trustee's receipt of notice or other discovery of
any noncompliance therewith or any breach thereof, (ix) any investment of monies
at the direction of the Servicer or any loss resulting therefrom, (x) the acts
or omissions of any Dealer or other Person in connection with the origination of
any Lease, (xi) any action of the Servicer taken in the name of the Trustee or
(xii) any action by the Trustee taken at the instruction of the Servicer;
provided, however, that the foregoing shall not relieve the Trustee of its
obligation to perform its duties under this Agreement and the other Trust
Documents to which it is a party. Except with respect to a claim based on the
Trustee's willful misconduct, bad faith or negligence, (i) no recourse shall be
had against the institution serving as Trustee in its individual capacity for
any claim based on any provision of this Agreement or any other Trust Document,
a Certificate or any Trust Asset or the assignment thereof and (ii) the Trustee
shall not have any personal obligation, liability or duty whatsoever to the
Holders or any other Person with respect to any such claim, and any such claim
shall be asserted solely against the Trust Assets or any indemnitor that shall
furnish indemnity as provided for in this Agreement or in the other Trust
Documents. The Trustee shall not be accountable for the use or application
27
by a Holder or a Special Purpose Affiliate of any Certificate(s) or of the
proceeds thereof, or for the use or application of any funds properly paid to
the Servicer pursuant to any Trust Document.
Section 5.05. INDEMNIFICATION OF TRUSTEE. The Trustee shall be
indemnified and held harmless out of and to the extent of the Trust Assets with
respect to any Loss incurred by the Trustee arising out of or incurred in
connection with (i) any Trust Assets (including any Loss relating to Leases,
Leased Vehicles, consumer fraud, consumer leasing act violations,
misrepresentation, deceptive and unfair trade practices and any other claims
arising in connection with any Lease, personal injury or property damage claims
arising with respect to any Leased Vehicle or any claim with respect to any Tax
arising with respect to any Trust Asset) or (ii) the acceptance or performance
by the Trustee of the trusts and duties contained in this Agreement and the
other Trust Documents, with any allocation of such indemnification among the
Trust Assets to be made as provided for in Section 3.08 or in a Supplement,
provided, however, that the Trustee shall not be indemnified or held harmless
out of the Trust Assets as to any such Loss (i) for which the Servicer shall be
liable pursuant to Section 6.02 or a corresponding section of any Supplement
(unless either (A) such Loss is an expense for which the Servicer would be
entitled to reimbursement from Trust Assets pursuant to an applicable Servicing
Agreement or (B) the Servicer shall not have paid such Loss upon the final
determination of its liability therefor), (ii) incurred by reason of the
Trustee's willful misconduct, bad faith or negligence or (iii) incurred by
reason of the Trustee's breach of Section 5.07(a)(i) or 5.12 or its
representations and warranties pursuant to any Servicing Agreement. To the
extent that Trust Assets are employed to pay any Loss incurred by the Trustee
for which the Servicer is determined to be liable pursuant to Section 6.02 or a
corresponding section of any Supplement, the Trust shall be subrogated to all
rights of the Trustee to recover such Loss from the Servicer.
Section 5.06. RIGHT NOT TO ACT. Notwithstanding anything to the
contrary contained herein, the Trustee shall have the right to decline to act in
any particular manner otherwise provided for herein or in the other Trust
Documents if the Trustee, being advised in writing by counsel, determines in
good faith that such action may not lawfully be taken or would subject it to
personal liability or be unduly prejudicial to the rights of any Holder; and
provided further, that nothing in this Agreement shall impair the right of the
Trustee to take any action deemed proper by it that is not inconsistent with
such otherwise required acts.
Section 5.07. QUALIFICATION OF TRUSTEE.
(a) Except as otherwise provided in this Agreement, the
Trustee shall at all times be (i) a corporation organized under the laws of the
United States or any State (which corporation shall not be a Beneficiary or any
Affiliate thereof), (ii) qualified to do business in the States requested by the
Servicer and (iii) otherwise acceptable to each Rating Agency.
(b) In the event that the Trustee complies with Section
5.07(a) but has its principal place of business outside of the State of
Delaware, then there shall at all times be a co-trustee appointed to act as the
Delaware Trustee pursuant to Section 3807 of the Delaware Act.
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The Delaware Trustee shall serve as the Delaware Trustee for the sole purpose
of satisfying the requirement of Section 3807 of the Delaware Act that the
Trust have at least one trustee with a principal place of business in
Delaware. It is understood and agreed by the parties hereto and the Holders
that the Delaware Trustee shall have none of the duties or liabilities of the
Trustee. The duties of the Delaware Trustee shall be limited to (i)
accepting legal process served on the Trust in the State of Delaware and (ii)
the execution of any certificates required to be filed with the Delaware
Secretary of State which the Delaware Trustee is required to execute under
Section 3811 of the Delaware Act. To the extent that, at law or in equity,
the Delaware Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or the Holders, it is hereby understood and
agreed by the parties hereto and the Holders that such duties and liabilities
are replaced by the duties and liabilities of the Delaware Trustee expressly
set forth in this Agreement.
Section 5.08. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The Trustee may not at any time resign without the
written consent of the UTI Beneficiaries, which consent shall not be
unreasonably withheld.
(b) If at any time the Trustee shall cease to be qualified in
accordance with Section 5.07, or if any representation or warranty made by the
Trustee pursuant to Section 5.12 shall prove to have been untrue in any material
respect when made, but the Trustee shall fail to resign after written request
therefor by the UTI Beneficiaries, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the UTI
Beneficiaries may remove the Trustee. The UTI Beneficiaries also may remove the
Trustee at their discretion. Upon removal of the Trustee, the UTI Beneficiaries
shall promptly appoint a successor Trustee by written instrument, in duplicate,
one copy of which shall be delivered to the Trustee so removed and one copy to
the successor Trustee, together with payment of all fees and expenses owed to
the outgoing Trustee.
(c) Any resignation or removal of the Trustee and appointment
of a successor Trustee pursuant to this Article shall not become effective until
acceptance of appointment by the successor Trustee.
Section 5.09. SUCCESSOR TRUSTEE. Any successor Trustee appointed as
provided in Section 5.08 shall execute, acknowledge and deliver to the
predecessor Trustee, the other parties hereto and each Beneficiary an instrument
accepting such appointment under this Agreement, and thereupon the resignation
or removal of the predecessor Trustee shall become effective and such successor
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 and the other Trust Documents to which the Trustee is a party,
with like effect as if originally named as Trustee. The predecessor Trustee
shall deliver to the successor Trustee all documents held by
29
it under the Trust Documents, and the predecessor Trustee and the other
parties to the Trust Documents 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 Trustee all such rights, powers,
duties and obligations. No successor Trustee shall accept appointment as
provided in this Section unless, at the time of such acceptance, such
successor Trustee shall be eligible under Section 5.07. Upon acceptance of
appointment by a successor Xxxxxxx as provided in this Section, the successor
Trustee shall mail notice of its appointment under this Agreement to each
Notice Party. If a Beneficiary fails to mail such notice within ten days
after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of such
Beneficiary.
Section 5.10. MERGER OR CONSOLIDATION OF TRUSTEE. The Trustee shall
not merge or consolidate with, or sell all or any substantial part of its assets
to, any other corporation, entity or Person without the express written consent
of the UTI Beneficiaries. Any such entity (i) into which the Trustee may be
merged or consolidated, (ii) which may result from any merger, conversion or
consolidation to which the Trustee shall be a party or (iii) which may succeed
to the corporate trust business of the Trustee, and in each case which executes
an agreement of assumption to perform every obligation of the Trustee under this
Agreement, shall be the successor of the Trustee hereunder, provided such entity
shall be eligible pursuant to Section 5.07, without the execution or filing of
any instrument or any further act on the part of any of the parties hereto other
than the written consent of the UTI Beneficiaries. The successor Trustee shall
give notice to each Notice Party within ten days following any merger,
conversion, consolidation or other transaction described in this Section.
Section 5.11. CO-TRUSTEES, SEPARATE TRUSTEES, NOMINEES AND TRUST
AGENTS.
(a) Notwithstanding any other provision of this Agreement, at
any time, for the purpose of meeting any legal requirements of any jurisdiction
in which any Trust Asset may at the time be located or within which such Trust
Asset is to be acquired, the UTI Beneficiaries and the Trustee, acting jointly,
shall have the power to execute and deliver all instruments to appoint one or
more Persons (each, a "Co-Trustee") to act as co-trustee, jointly with the
Trustee, or as a separate trustee or nominee holder of legal title, of all or
any part of such Trust Asset, and to vest in such Person, in such capacity and
for the benefit of the Beneficiaries, the Holders and their permitted assigns,
such title to the Trust Assets, or any part thereof, and, subject to the other
provisions of this Section, such rights, powers, duties, obligations and trusts
as the UTI Beneficiaries and the Trustee may consider necessary or desirable.
No such Co-Trustee shall be required to meet the terms of eligibility as a
successor Trustee pursuant to Section 5.09, except that no such co-trustee,
separate trustee or nominee holder of legal title may be a Beneficiary or any
Affiliate thereof.
(b) Each Co-Trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and conditions:
30
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred upon and exercised or
performed by the Trustee and such Co-Trustee jointly (it being
understood that any such Co-Trustee is not authorized to act separately
without the 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 (whether as Trustee under this Agreement or as
successor to the Servicer under this Agreement or any Servicing
Agreement), the 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 Assets or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such Co-Trustee, but solely at the direction of the
Trustee;
(ii) no Co-Trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee or Co-Trustee; and
(iii) the UTI Beneficiaries and the Trustee acting jointly may
at any time accept the resignation of or remove any Co-Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then Co-Trustees, as
effectively as if given to each of them. Every instrument appointing any
Co-Trustee hereunder shall refer to this Agreement and the conditions of this
Section. Each 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 Trustee or separately, as may be provided therein,
subject to all provisions of this Agreement, specifically including every
provision relating to the conduct of, affecting the liability of or affording
protection to, the Trustee. Each such instrument shall be filed with the
Trustee and a copy thereof given to the Servicer and each Related Beneficiary.
Any Co-Trustee may at any time, and shall, at the request of the
Trustee, appoint the Trustee, the Trust Agent or the Servicer 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 Co-Trustee shall die, become incapable of acting,
resign or be removed, then all of its estates, properties, rights, remedies and
trusts relating to this Agreement and the Trust Assets shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee. Notwithstanding anything to the
contrary in this Agreement, the appointment of any Co-Trustee shall not relieve
the Trustee of its obligations and duties under this Agreement.
(d) The Trustee may enter from time to time into one or more
Trust Agency Agreements with a Trust Agent that is by experience and expertise
qualified to act in a trustee capacity and otherwise acceptable to the UTI
Beneficiaries. The Trustee shall give notice of the appointment of each Trust
Agent (other than the initial Trust Agent) to each Notice Party. Except as
otherwise provided in the related Trust Agency Agreement, the Trust Agent shall
carry out each and every obligation of the Trustee hereunder and under each
other Trust Document to
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which the Trustee is a party, and the Trustee delegates to the Trust Agent
all power and authority delegable by the Trustee hereunder and thereunder in
order better to be able to carry out its duties as Trust Agent. Each Trust
Agency Agreement shall specify the duties, powers, liabilities, obligations
and compensation of the related Trust Agent to carry out on behalf of the
Trustee any or all of its obligations as Trustee arising under this Agreement
and the other Trust Documents to which the Trustee is a party and shall
contain a non-petition covenant substantially identical to that set forth in
Section 8.08; provided, however, that nothing contained in any Trust Agency
Agreement shall excuse, limit or otherwise affect any power, duty,
obligation, liability or compensation otherwise applicable to the Trustee
hereunder. Notwithstanding the foregoing or the provisions of any Trust
Agency Agreement, the Trustee shall replace any Trust Agent if (i) in the
judgment of the Related Beneficiary, the compensation or level of service of
such Trust Agent shall no longer be reasonably competitive with those of any
alternative agent reasonably proposed by the Related Beneficiary, (ii) the
Trust Agent has materially breached its obligations under the related Trust
Agency Agreement, the UTI Beneficiaries or any related Holder have given
written notice to the Trustee and the Trust Agent of such breach and the
Trust Agent has not cured such breach in all material respects within 30
Business Days thereafter or (iii) any Rating Agency shall require the
replacement of such Trust Agent. The Trustee hereby engages U.S. Bank as the
initial Trust Agent, the UTI Beneficiaries hereby consent to such appointment
and U.S. Bank hereby accepts such engagement, with all provisions of this
Section relating to Trust Agents, together with Section 8.08, constituting a
Trust Agency Agreement between U.S. Bank and the Trustee, subject to any
amendment or supplement thereto between such parties not inconsistent
herewith. So long as the Trustee is a Subsidiary of the Trust Agent, the
Trustee shall pay to the Trust Agent reasonable compensation for its services
and shall provide such reimbursement of expenses as are separately agreed to
by the Trustee and the Trust Agent.
The Trust Agent shall be entitled to all of the benefits, protections,
indemnities and rights of reliance set forth in this Agreement with regard to
the Trustee. The Trust Agent may resign hereunder upon giving 30 days' prior
written notice to each Notice Party. Notwithstanding the foregoing, unless
otherwise agreed to by the Trustee and the UTI Beneficiaries, such resignation
will be effective only upon the appointment of a successor Trust Agent in
accordance with the terms hereof.
Section 5.12. REPRESENTATIONS, WARRANTIES AND COVENANTS OF TRUSTEE.
The Trustee hereby makes the following representations, warranties and covenants
on which the other parties hereto, their respective permitted assignees and
pledgers, each Holder of a Certificate (and beneficial owner of any portion
thereof in connection with a Securitization) and each Beneficiary may rely:
(i) The Trustee is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware
and is qualified to do business as a foreign corporation and is in good
standing in each State. The Trustee shall promptly take or cause to be
taken (at the expense of the Servicer as provided in Section 5.13) all
such actions and execute and file or cause to be executed and filed all
such instruments and documents, as may reasonably be required in order
for the Trustee to qualify to do business and be in good standing
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in each other State identified in writing from time to time by a
Beneficiary or the Servicer.
(ii) The Trustee has full power, authority and right to
execute, deliver and, assuming that the filings set forth on an
Officer's Certificate of the Servicer delivered on the Effective Date
are sufficient to allow the Trustee to act as a trustee with respect to
the Trust Assets, perform this Agreement in all material respects and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement.
(iii) This Agreement has been duly executed and delivered by
the Trustee, and is a legal, valid and binding instrument enforceable
against the Trustee in accordance with its terms.
(iv) Neither the execution and delivery of this Agreement or
the other Trust Documents to which the Trustee is a party nor the
consummation of the transactions herein or therein contemplated, nor
compliance with the provisions hereof or thereof, will conflict with or
result in a breach of, or constitute a default (with notice or passage
of time or both) under any provision of any judgment, decree or order
binding on the Trustee or the certificate of incorporation or bylaws of
the Trustee or any provision of any material indenture, contract,
agreement or other instrument to which the Trustee is a party or by
which it is bound.
(v) The Trustee has not engaged, is not currently engaged and
will not engage during the term of this Agreement in any activity other
than serving as Trustee and in such ancillary activities as are
necessary and proper in order to act as Trustee pursuant to this
Agreement and the other Trust Documents.
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Section 5.13. TRUSTEE'S FEES AND EXPENSES. Except as otherwise
provided in the other Trust Documents, the Servicer shall, subject to
reimbursement to the extent provided in any applicable Servicing Agreement (i)
pay the Trustee, the Delaware Trustee and any other Co-Trustee reasonable
compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) for services rendered by it
in the execution of the Trust and in the exercise and performance of any of the
powers and duties under this Agreement and the other Trust Documents to which it
is a party and (ii) reimburse the Trustee, the Delaware Trustee and any other
Co-Trustee for all reasonable expenses (including reasonable attorneys' fees)
for the costs of qualification, periodic maintenance of its corporate franchises
and qualifications, annual board of directors' meetings and all necessary
corporate filings, fees and State franchise and other taxes, excluding Taxes
payable in respect of income earned by the Trustee.
Section 5.14. TRUSTEE STOCK. U.S. Bank hereby makes the following
representations, warranties and covenants on which the other parties hereto,
their respective permitted assignees and pledgers and each Holder of a
Certificate (and beneficial owner of any portion thereof in connection with a
Securitization) and each Beneficiary may rely:
(i) All of the Trustee Stock is owned by U.S. Bank, free and
clear of any Lien or other restriction, agreement or commitment of any
kind (other than as provided for in this Agreement) that would in any
way restrict its ability freely to transfer, convey and assign the
Trustee Stock. All such Trustee Stock currently outstanding is (and any
Trustee Stock that may be issued in the future will be) validly issued,
fully paid and nonassessable and has not been (and will not be) issued
in violation of any preemptive, first refusal or other subscription
rights of any Person. There are no outstanding options, warrants,
conversion rights, subscription rights, preemptive rights, exchange
rights or other rights, agreements or commitments of any kind obligating
U.S. Bank to sell any Trustee Stock or to issue any additional Trustee
Stock to any Person. No additional Trustee Stock may be issued without
the express written consent of the UTI Beneficiaries.
(ii) For so long as U.S. Bank is acting as a Trust Agent
pursuant to this Agreement or any Trust Agency Agreement, but subject to
any applicable legal or regulatory requirements, it will retain
ownership of all of the Trustee Stock. If at any time (and for any
reason, including U.S. Bank's resignation or termination as Trust Agent
or the termination of the Trust) U.S. Bank either is no longer acting as
a Trust Agent or is no longer able, because of legal or regulatory
changes, to own the Trustee Stock or the Trustee would have to be
removed pursuant to Section 5.08(b) as a result of its being owned by
U.S. Bank, U.S. Bank will (A) notify the UTI Beneficiaries of such event
and (B) sell to the designee of the UTI Beneficiaries (which shall not
be a Beneficiary or an Affiliate thereof), at the option of the UTI
Beneficiaries, without recourse except with respect to the
representations, warranties and covenants contained herein, all of the
Trustee Stock for the sum of $10 plus all Liquid Trustee Assets. Such
designee shall have
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120 days from the date of receipt of such notice in which to exercise
such option and to consummate such acquisition, during which time U.S.
Bank shall not offer for sale or sell any Trustee Stock to any other
Person. If such designee does not consummate such acquisition within
such period, U.S. Bank may offer for sale or sell to any Person any or
all of the Trustee Stock or dissolve the Trustee; provided, however,
that if, upon or in connection with U.S. Bank no longer being a Trust
Agent, a successor Trust Agent shall be appointed by the Trustee, U.S.
Bank will next grant to such successor Trust Agent an option for it or
its designee to buy the Trustee Stock without recourse except with
respect to the representations, warranties and covenants contained
herein, for the sum specified above. Such successor Trust Agent or
its designee shall have 120 days from the date of receipt of such
offer in which to exercise such option and consummate such
acquisition, during which time no Trustee Stock may be offered for
sale or sold to any Person other than such successor Trust Agent or
its designee. Upon any timely exercise of the foregoing option to
acquire the Trustee Stock, U.S. Bank shall promptly tender all Trustee
Stock to such buyer at a time and place determined by the buyer duly
endorsed in blank or with duly endorsed stock powers attached, against
payment of the purchase price. U.S. Bank shall pay any transfer or
similar taxes arising from a transfer of the Trustee Stock as
contemplated herein; provided, however, that the UTI Beneficiaries
shall pay such amounts if the Trustee is removed at the discretion of
the UTI Beneficiaries and not for any other reason contained in
Section 5.08.
Section 5.15. LIMITATION OF LIABILITY OF TRUSTEE.
(a) Notwithstanding anything contained herein to the
contrary, in no event shall HVT, Inc., in its individual capacity, or any Trust
Agent appointed hereunder have any liability for the representations,
warranties, covenants, agreements or other obligations of the Trust hereunder
(other than any certificate of authentication), as to all of which recourse
shall be had solely to the Trust Assets.
(b) For all purposes of this Agreement, in the performance of
any duties or obligations of the Trust hereunder, the Trustee and the Trust
Agent shall be subject to, and entitled to the benefits of, the terms and
provisions of Article Five.
(c) Except as otherwise noted by the context, any reference
herein to actions taken or amounts received in trust by the Trustee shall be
deemed to mean the Trustee, acting on behalf of the Trust and all beneficiaries
thereof.
(d) The Trustee hereby acknowledges that AHFC owns all rights
to the name HVT, Inc.
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ARTICLE SIX
THE SERVICER
Section 6.01. DUTIES AND POWERS OF SERVICER. The Servicer is hereby
appointed and authorized to act as attorney-in-fact for the Trust, and in such
capacity shall manage, service, administer and make collections on the Trust
Assets with reasonable care, using that degree of skill and attention that it
exercises with respect to comparable assets that it services for itself or
others. The Trustee shall enter into any and all agreements as a Beneficiary
may, with the consent of the Servicer, direct in order to add, delete or amend
any or all of the obligations of the Servicer hereunder in respect of all or any
portion of the Related Trust Assets. The Servicer shall follow its customary
standards, policies and procedures, as the same may change from time to time,
and, unless otherwise indicated herein or in any Servicing Agreement, shall have
full power and authority, acting alone, to do any and all things in connection
with such managing, servicing, administrating and collecting that it may deem
necessary or desirable in the interest of the Trust. Without limiting the
generality of the foregoing, the Servicer is hereby authorized and empowered by
the Beneficiaries and the Trust (i) to execute and deliver, on behalf of the
Trust, any and all instruments, certificates or other documents necessary or
advisable to record and maintain title to the Leased Vehicles in the name of the
Trust or the Trustee on behalf of the Trust and to release interests of the
Trust, the Trustee and the Beneficiaries in any Leased Vehicle in connection
with the sale or other disposition of such Leased Vehicle as contemplated by
this Agreement and the other Trust Documents, (ii) to give all directions
permitted to be given by the Servicer pursuant to this Agreement and (iii) to
apply for and maintain the licenses, permits and authorizations and make the
filings described in Section 5.01(c). The Servicer also shall be responsible
for creating, maintaining and amending the Schedule of Leases and Leased
Vehicles. In connection with the creation of each SUBI, the Servicer shall
deliver to the Trustee a revised Schedule of Leases and Leased Vehicles as of
date not more than ten days prior to the date of such delivery. The Servicer is
hereby authorized, in its own name, in the name of the Trust or in the name of
the Trustee on behalf of the Trust, to commence, defend against or otherwise
participate in a Proceeding relating to or involving the protection or
enforcement of the interests of the Trust, the Trustee on behalf of the Trust, a
Beneficiary or a Holder in any Lease, Leased Vehicle or other Trust Asset. If
the Servicer shall commence, defend against or otherwise participate in a
Proceeding in its own name, or in the name of the Trust or the Trustee on behalf
of the Trust, each relevant Holder or Beneficiary shall thereupon be deemed to
have automatically assigned its interest in (including legal title to) the
applicable Lease, Leased Vehicle or other Trust Asset, as applicable, to the
Servicer to the extent necessary for purposes of such Proceeding. The Servicer
is authorized and empowered by the Trust to execute and deliver in the
Servicer's name any notices, demands, claims, complaints, responses, affidavits
or other documents or instruments in connection with any such Proceeding. The
Trustee shall furnish the Servicer with all powers of attorney and other
documents and take any other steps which the Servicer may deem necessary or
appropriate to enable it to carry out its duties under this Agreement and the
other Trust Documents. If in any Proceeding it shall be held that the Servicer
may not enforce the rights of the Trust, the Trustee on behalf of the Trust, a
Holder or a Beneficiary in a Lease, Leased Vehicle or other Trust Asset on the
grounds that it is not the real party in interest or a holder entitled to
enforce the Lease or other relevant document or instrument, the Trustee shall on
behalf of the Trust, at the direction of the Servicer, take steps to
36
enforce the interest of the Trust, the Trustee on behalf of the Trust, a
Holder or a Beneficiary in such Lease, Leased Vehicle or other Trust Asset,
including bringing suit in its name or the name of the Related Beneficiary or
related Holders. The Servicer shall advance the costs or expenses of any
such action to the Trustee, subject to reimbursement to the extent provided
in any applicable Servicing Agreement.
Section 6.02. LIABILITY OF SERVICER; INDEMNITIES.
(a) The Servicer shall be liable in accordance with this
Agreement and the other Trust Documents only to the extent of the obligations
specifically undertaken by the Servicer and shall have no other obligations or
liabilities hereunder or thereunder. Such obligations will include
indemnifying, defending and holding harmless the following parties:
(i) the Trust, the Trustee and the Trust Agent from and
against (A) any and all Loss arising out of or resulting from the use or
operation of any Leased Vehicle by the Servicer or any Affiliate thereof
and (B) any Taxes that may at any time be asserted against the Trust,
the Trustee or the Trust Agent with respect to the transactions
contemplated by this Agreement (other than Taxes based on income payable
to such Persons hereunder), including any sales, gross receipts, general
corporation, tangible personal property, privilege or license Taxes and
costs and expenses in defending against the same;
(ii) the Trust, the Trustee, the Trust Agent, the
Beneficiaries and the Holders from and against any and all Loss to the
extent that such Loss arose out of, or was imposed upon, such Persons
through the performance by the Servicer of its duties hereunder or under
any Servicing Agreement or by reason of its disregard of its obligations
and duties hereunder or thereunder; and
(iii) the Trustee and the Trust Agent from and against all Loss
arising out of or incurred in connection with their acceptance or
performance of the trusts and duties contained in this Agreement or any
other Trust Document, except to the extent that any such Loss (A) is due
to the willful misconduct, bad faith or negligence (except for good
faith errors in judgment) of the Trustee or the Trust Agent, (B) arises
from the material breach by the Trustee or the Trust Agent of any of its
obligations, representations or warranties in this Agreement or in any
Trust Agency Agreement or (C) arises out of or is incurred in connection
with the performance by the Trustee of the duties of successor Servicer
hereunder or under any Servicing Agreement.
(b) If the Servicer has made any indemnity payments pursuant
to this Section, (i) it shall be a condition of such payment that, to the extent
such amounts would constitute an expense for which the Servicer would be
entitled to seek reimbursement under the Servicing
37
Agreement if incurred by the Servicer, the recipient thereof shall assign to
the Servicer all rights of such recipient to reimbursement for such amounts
from the Trust or the Trust Assets, and (ii) if the recipient thereafter
collects from the Trust, the Trust Assets or third parties any amounts with
respect to which the Servicer has made an indemnity payment to the recipient
hereunder, the recipient shall promptly repay such amounts collected to the
Servicer, without interest. Indemnification under this Section shall survive
(i) any transaction described in Section 6.03 and any acts, occurrences or
transactions related thereto whether arising before or after the date of such
transaction and (ii) the termination of this Agreement and the other Trust
Documents.
Section 6.03. MERGER OF SERVICER; APPOINTMENT OF NOMINEE. Any
corporation (i) into which the Servicer may be merged or consolidated, (ii)
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, (iii) succeeding to the business of the Servicer or (iv) more
than 50% of the voting stock of which is owned directly or indirectly by AHFC or
any Affiliate thereof and which is otherwise servicing motor vehicle leases or
retail installment sales contracts, which corporation in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Servicer, shall be the successor to the Servicer without the execution or filing
of any paper or any further act on the part of any of the parties to this
Agreement.
Section 6.04. LIMITATION ON LIABILITY OF SERVICER AND OTHERS.
(a) Except as otherwise provided in this Agreement and the
other Trust Documents, neither the Servicer nor any of its directors, officers,
employees or agents shall have any liability to the Trust, the Trustee or the
Trust Agent, or any Beneficiary, Special Purpose Affiliate, Holder or Registered
Pledgee, for any action taken or for refraining from the taking of any action
pursuant hereto or thereto or for errors in judgment. Notwithstanding the
foregoing, this provision shall not protect the Servicer or any such Person
against any Liability that would otherwise be imposed by reason of willful
misconduct, bad faith or negligence (except errors in judgment) in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder or thereunder. The Servicer and its directors, officers,
employees and agents may rely in good faith on the advice of counsel or on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder or thereunder and in so doing shall not
be acting in bad faith or with negligence, willful misfeasance or reckless
disregard.
(b) Except as otherwise provided in this Agreement and the
other Trust Documents, the Servicer shall not be under any obligation to appear
in, prosecute or defend any Proceeding that is not incidental to its duties to
service the Trust Assets in accordance herewith or therewith and that in its
opinion may involve it in any Liability. Notwithstanding the foregoing, the
Servicer may undertake any reasonable action that it may deem necessary or
desirable in respect of this Agreement and the other Trust Documents and the
rights and duties of the parties hereto or thereto and the interests of any
Beneficiary hereunder or thereunder. In such event, the reasonable legal
expenses and costs for such action and any Loss resulting therefrom shall be an
expense allocated to the Trust Assets relating to the UTI or the related SUBI,
as
38
applicable, subject to reimbursement to the extent provided in any applicable
Servicing Agreement.
Section 6.05. SERVICER NOT TO RESIGN; DELEGATION OF DUTIES.
(a) Subject to Section 6.03, the Servicer shall not resign
from the obligations and duties imposed on it by this Agreement except upon a
determination that the performance of its duties under this Agreement is no
longer permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee. No such resignation shall become effective
until a successor servicer shall have assumed the responsibilities and
obligations of the Servicer. Neither the Trustee nor the Trust Agent will be
obligated to serve as successor servicer under this Agreement without its prior
written consent.
(b) Except as otherwise provided in this Agreement and the
other Trust Documents, the Servicer may not assign any of its rights, powers,
duties or obligations under this Agreement. Notwithstanding the foregoing, the
Servicer may make such an assignment in connection with a consolidation, merger,
conversion or other event that is made in compliance with Section 6.03.
(c) Except as otherwise provided in this Agreement and the
other Trust Documents, the duties and obligations of the Servicer under this
Agreement shall continue until this Agreement has been terminated as provided in
Section 7.01 and shall survive the exercise by the Trustee of any right or
remedy under, or the enforcement by the Trustee of any provision of this
Agreement or any other Trust Document.
Section 6.06. SERVICING COMPENSATION. The Servicer shall receive such
fees and reimbursement for expenses with respect to the Trust Assets relating to
the UTI or any SUBI as may be agreed to from time to time between the Servicer
and the Related Beneficiary.
Section 6.07. POWERS OF ATTORNEY. The Servicer is hereby designated by
each of the Trust and the Trustee as its true and lawful attorney-in-fact, with
full power and authority to perform any and all acts related to managing,
servicing, administering and collecting the Trust Assets and any and all acts
otherwise required or permitted to be performed by the Servicer under this
Agreement and the other Trust Documents. The Servicer is hereby authorized and
empowered to execute and deliver, on behalf and in the name of the Trustee or
the Trust, any and all instruments, certificates or other documents relating
thereto. The Servicer also has the right, power and authority to designate in
writing other Persons as true and lawful attorneys-in-fact for and on behalf of
the Trustee and the Trust to do anything that the Servicer has the power to do
under this Agreement and the other Trust Documents. Without limiting the
generality of the foregoing, the Servicer or any such Person designated by the
Servicer is hereby authorized and empowered by the Trustee and the Trust to
(i) apply for and maintain the licenses, permits and
39
authorizations and make the filings described in Section 5.01(c) and (ii)
execute and deliver, on behalf of the Trustee and the Trust, applications for
or duplicates of Certificates of Title in the name of the Trust or the
Trustee on behalf of the Trust, applications for registrations of Leased
Vehicles or license plates, applications for transfers of Certificates of
Title or registrations for Leased Vehicles or license plates and any
instruments, certificates or other documents which the Servicer deems
necessary or advisable to record, hold or release title to or registration of
Leased Vehicles in the manner contemplated hereby.
Section 6.08. PROTECTION OF TITLE TO TRUST.
(a) The Servicer shall maintain accounts and records as to
legal title to the Trust Assets (including records as to which Trust Assets are
allocated to the UTI and each SUBI) accurately and in sufficient detail to
permit the reader thereof to know at any time the status of such legal title.
(b) The Servicer shall maintain its computer systems so that
its master computer records (including any back-up archives) that refer to any
Leased Vehicle indicate clearly that legal title to such Leased Vehicle is held
by the Trust or the Trustee on behalf of the Trust as nominee holder of legal
title for the Related Beneficiary or the related Holders. References to legal
title of a Leased Vehicle being held by the Trust or the Trustee on behalf of
the Trust as nominee holder of legal title for a Related Beneficiary or the
related Holders shall be deleted from or modified on such computer systems when,
and only when, legal title to such Leased Vehicle is no longer held by the Trust
or the Trustee on behalf of the Trust for the benefit of such Related
Beneficiary or the related Holders.
(c) If at any time the Servicer or a Related Beneficiary
proposes to sell, grant a security interest in or otherwise transfer any
interest in any Leased Vehicle to any prospective purchaser, lender or other
transferee, all computer tapes, records or print-outs (including any restored
from back-up archives) delivered by the Trustee to such prospective purchaser,
lender or other transferee that refers in any manner whatsoever to such Leased
Vehicle shall indicate clearly that legal title to such Leased Vehicle is held
in the name of the Trust or the Trustee on behalf of the Trust for the benefit
of the Related Beneficiary or the related Holders.
ARTICLE SEVEN
TERMINATION
Section 7.01. DISSOLUTION OF THE TRUST.
(a) Subject to Section 7.03(b), The Trust shall continue in
full force and effect until the payment to each Holder or its designee of all
amounts required to be paid to them
40
pursuant to this Agreement and the related Certificates and the expiration or
termination of all Securitizations by their respective terms.
(b) Upon the occurrence of the events described in Section
7.01(a), after satisfaction of all obligations to creditors, if any, of the
Trust, the Trustee shall (i) distribute the Trust Assets to the Related
Beneficiaries or their respective designees in accordance with this Agreement
and the Supplements; (ii) together with the Related Beneficiaries, cause the
Certificates of Title to any Leased Vehicles so distributed to the Related
Beneficiaries to be issued in the name of, or at the direction of, such Related
Beneficiaries and the Related Beneficiaries to whom such Trust Assets are
distributed shall pay or cause to be paid all applicable titling and
registration fees and taxes; (iii) take such action as may be requested by a
Related Beneficiary in connection with the transfer of Related Trust Assets to
such Related Beneficiary or its designee, including the execution and delivery
of assignment forms appearing on the Certificates of Title or other instruments
to transfer and assign the related Leased Vehicles, and (iv) file or cause to be
filed a certificate of cancellation with the Delaware Secretary of State
pursuant to Section 3810(d) of the Delaware Act. Upon the filing described in
clause (iv), this Agreement shall terminate and the Trustee shall be discharged
from all duties and obligations hereunder.
Section 7.02. TERMINATION OF SUB-TRUSTS.
(a) Subject to Section 7.03, the Trust shall terminate with
respect to the Trust Assets allocated to a UTI or a SUBI, and not, except as
otherwise provided in a Supplement, as to any Trust Assets allocated to any
other Sub-Trust, upon the written direction by the Related Beneficiary to the
Trustee to revoke and terminate such Sub-Trust, following the satisfaction of
all obligations to creditors, if any, of such Sub-Trust, the payment to each
related Holder or its designee of all amounts required to be paid to it pursuant
to this Agreement and such Holder's UTI Certificate or related SUBI Certificate,
as applicable, and the expiration or termination of all related Securitizations
by their respective terms. Following such direction with respect to the UTI or
a SUBI and delivery of the related Certificates to the Trustee for cancellation,
the Trustee shall distribute to the Related Beneficiary or its designee all
Related Trust Assets and shall cause the Certificates of Title to the related
Leased Vehicles to be issued in the name of, or at the direction of, such
Related Beneficiary (which, in the case of a SUBI, may include reallocation of
the related SUBI Assets to the UTI). The Related Beneficiary to whom such Trust
Assets are distributed shall pay or cause to be paid all applicable titling and
registration fees and taxes.
(b) Upon the termination of the Trust with respect to a
Sub-Trust, the UTI or applicable SUBI shall be terminated and the UTI
Certificates or the applicable SUBI Certificates shall be returned to the
Trustee for cancellation. Such a termination shall not effect a termination of
any other Sub-Trusts that are in existence at the time of such termination.
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Section 7.03. BENEFICIARY OR SPECIAL PURPOSE AFFILIATE BANKRUPTCY.
(a) The bankruptcy, insolvency, dissolution or similar
occurrence of a Beneficiary or a Special Purpose Affiliate shall not, except as
otherwise provided in Section 7.03(b) or a Supplement, (i) cause the termination
of this Agreement with respect to the Trust as a whole, the UTI or any SUBI,
(ii) entitle the legal representatives of such Beneficiary or Special Purpose
Affiliate to claim an accounting or to take any action in any court for a
partition or winding up of the Trust as a whole or any Trust Assets other than
the Related Trust Assets or (iii) otherwise affect the rights, obligations or
liabilities of the parties hereto or any other Beneficiary or Special Purpose
Affiliate.
(b) Upon the bankruptcy, insolvency, dissolution or similar
occurrence of the 1% UTI Beneficiary, the Trust shall terminate automatically
with respect to the UTI and the UTI Assets, but not with respect to any SUBI or
SUBI Assets, unless, within 90 days of such bankruptcy, insolvency, dissolution
or similar occurrence, (i) the 99% UTI Beneficiary, in writing, (A) agrees that
the UTI shall not be dissolved and (B) designates an additional UTI Beneficiary
to serve as the 1% UTI Beneficiary, transfers to such additional UTI Beneficiary
a 1% ownership interest in the UTI and presents the UTI Certificate originally
evidencing the 99% ownership interest in the UTI to the Trustee for registration
of transfer to such additional UTI Beneficiary of a 1% ownership interest in the
UTI, (ii) the Trustee registers such transfer and issues new UTI Certificates to
such UTI Beneficiaries evidencing their respective interests and (iii) the
additional 1% UTI Beneficiary delivers to the Servicer, the Trustee and the 99%
UTI Beneficiary an agreement in form and substance satisfactory to such Persons.
In such event, the Trust shall not terminate with respect to the UTI or any UTI
Assets.
ARTICLE EIGHT
MISCELLANEOUS
Section 8.01. AMENDMENT. This Agreement, including the terms of the
UTI Certificates, may be amended or supplemented by written agreement among the
UTI Beneficiaries, the Servicer, the Trustee, the Delaware Trustee (if such
amendment affects its rights or obligations hereunder as Delaware Trustee) and
the Trust Agent (if such amendment affects its rights or obligations hereunder
as Trust Agent), with the consent of each Related Beneficiary and Holder
affected thereby; provided, however, that the consent of a Holder shall not be
required if (i) (A) the purpose of the amendment or supplement is to cure any
ambiguity, correct or supplement any provision that may be inconsistent with any
other provision, add any provision that provides additional rights to Holders or
ensure that the Trust, any Sub-Trust or one or more Beneficiaries are not
classified as an association (or partnership) taxable as a corporation for
federal income tax purposes or for state income or franchise tax purposes and
(B) the amendment or supplement will not, in the good faith judgment of the UTI
Beneficiaries and the Servicer, materially and adversely affect the interest of
any Holder or (ii) an Opinion of Counsel is delivered to the Trustee to the
effect that such amendment or supplement will not materially and adversely
affect
42
the interest of any Holder. After the first Securitization, any such
amendment shall require such additional approvals, if any, as may be required
under the related Securitization Documents.
Section 8.02. GOVERNING LAW. This Agreement shall be created under and
governed by and construed under the internal laws of the State of Delaware,
without regard to any otherwise applicable principles of conflicts of laws.
Section 8.03. NOTICES. All demands, notices and communications under
this Agreement or any Supplement shall be in writing and shall be delivered or
mailed by registered or certified first class United States mail, postage
prepaid, return receipt requested, hand delivery, prepaid courier service or
facsimile transmission, and addressed in each case as follows: (i) if to Honda
Titling A L.P. as UTI Beneficiary, at 000 Xxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000
(telecopier no. (000) 000-0000), Attention: General Partner; (ii) if to Honda
Titling B L.P. as UTI Beneficiary, at 000 Xxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000
(telecopier no. (000) 000-0000), Attention: General Partner; (iii) if to the
Servicer, at 000 Xxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000 (telecopier no. (310)
787-3910), Attention: President; (iv) if to the Trustee, in care of the Trust
Agent at 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (telecopier
no. (000) 000-0000), Attention: HVT, Inc.; (v) if to the Delaware Trustee, at
Delaware Trust Capital Management, Three Beaver Valley Road, Wilmington,
Delaware 19803 (telecopier no. (000) 000-0000), Attention: Xxxx Xxx Xxxxxxx;
(vi) if to the Trust Agent, at 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000 (telecopier no. (000) 000-0000), Attention: Honda Lease Trust;
(vii) if to a Holder, at its address set forth in the related Certificate
Register; (viii) if to a Beneficiary (to the extent not duplicative of any of
clauses (i) through (vii) above, at its address set forth in the related SUBI
Supplement; (ix) if to Standard & Poor's and Standard & Poor's is a Rating
Agency, to 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed
Surveillance Group (telecopier no. (000) 000-0000); (x) if to Moody's and
Xxxxx'x is a Rating Agency, to 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: ABS Monitoring Department (telecopier no. (000) 000-0000); or (xi)
with respect to any of the foregoing Persons, at such other address or
telecopier number as shall be designated by such Person in a written notice to
the other parties hereto. Delivery shall occur only upon actual receipt or
rejected tender of such communication by an officer of the recipient entitled to
receive such notices located at the address or telecopier number of such
recipient for notices hereunder. A copy of all notices to the Trustee shall be
delivered to the Trust Agent.
Section 8.04. SECURITIZATION HOLDERS. To the extent that any entity
becomes a Securitization Holder, (i) such Securitization Holder shall exercise
its rights as a Holder hereunder only as directed or authorized pursuant to the
related Securitization Documents and (ii) except with respect to a claim based
on such Securitization Holder's willful misconduct, bad faith or negligence, or
to the extent otherwise provided in such Securitization Documents, no recourse
shall be had against the institution serving as such Securitization Holder.
Section 8.05. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement or any Supplement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed
43
severable from the remaining covenants, agreements, provisions or terms of
this Agreement, as supplemented, and shall in no way affect the validity or
enforceability of the other covenants, agreements, provisions or terms of
this Agreement or any Supplement or of any Certificate or the rights of any
Holder.
Section 8.06. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original, but all of which counterparts shall together constitute but
one and the same instrument.
Section 8.07. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained in this Agreement shall be binding upon and inure to the benefit of
the parties hereto, the Beneficiaries, the Holders and their permitted
successors and assigns. Any request, notice, direction, consent, waiver or
other instrument or action by a party hereto, a Holder or a Beneficiary shall
bind the successors and assigns of such party, Holder or Beneficiary, as
applicable. The Trustee may not assign or delegate any of its rights or
obligations under this Agreement, except as provided herein, without the prior
written consent of the UTI Beneficiaries.
Section 8.08. NO PETITION. Each of the parties hereto covenants and
agrees that prior to the date which is one year and one day after the date upon
which all obligations under each Securitization have been paid in full, it will
not (and, to the fullest extent permitted by applicable law, the Trustee shall
not have the power to) institute against, or join any other Person in
instituting against any Grantor, the Trustee, the Trust, any Special Purpose
Affiliate, any Beneficiary, any general partner of a Beneficiary or of a Special
Purpose Affiliate that is a partnership or any member of a Beneficiary or
Special Purpose Affiliate (or any of their respective general partners) that is
a limited liability company, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal or
state bankruptcy or similar law. This Section shall survive the complete or
partial termination of this Agreement, the resignation or removal of the Trustee
and the complete or partial resignation or removal of the Servicer.
Section 8.09. TABLE OF CONTENTS AND HEADINGS. The Table of Contents and
Article and Section headings are for convenience of reference only and shall not
define or limit any of the terms or provisions hereof.
Section 8.10. TAX REPORTING AND CHARACTERIZATION.
(a) Consistent with the treatment of the Trust and each
Sub-Trust for tax purposes as a mere nominee holder of legal title, unless
otherwise required by appropriate taxing authorities, neither the Trust nor any
Sub-Trust will file or cause to be filed any annual or other tax returns. In
the event that the Trust, any Sub-Trust or the Trustee on behalf of the Trust is
required to file any tax returns, the Servicer will prepare or cause to be
prepared such returns and will deliver such returns to the Trustee for
signature, unless applicable law requires one or more
44
Beneficiaries to sign such returns, in which case the Servicer will deliver
such returns to the related Beneficiaries for signature.
(b) The parties hereto (i) intend that neither the Trust nor
any Sub-Trust shall constitute a separate entity for federal income tax purposes
or for state income or franchise tax purposes and that each Beneficiary shall be
treated for such tax purposes as if it owned the Related Trust Assets directly,
rather than through the Trust and (ii) agree to treat the Related Trust Assets
accordingly for federal income or state income or franchise tax purposes.
However, in the event that the Trust or any Sub-Trust is characterized as a
separate entity for federal income tax purposes or for state income or franchise
tax purposes, the parties hereto intend that the Trust or such Sub-Trust shall
qualify as a partnership for such tax purposes that has elected out of
partnership status under Section 761 of the Internal Revenue Code (and analogous
state law tax provisions).
Section 8.11. CERTIFICATES NONASSESSABLE AND FULLY PAID. Except as
otherwise provided in a Supplement, the interests represented by the
Certificates shall be nonassessable for any losses or expenses of the Trust or
for any reason whatsoever, and, upon authentication thereof by the Trustee, each
Certificate shall be deemed fully paid.
Section 8.12. EFFECT OF AGREEMENT; DELAWARE CO-TRUSTEE AGREEMENT. As
of the Effective Date, the Original Trust Agreement is amended and restated in
its entirety. The UTI Beneficiaries, the Servicer, the Trustee and the Delaware
Trustee hereby agree that commencing on the Effective Date, all references in
the Delaware Co-Trustee Agreement to "Trust Agreement" shall be deemed to refer
to this Agreement and that the Delaware Co-Trustee Agreement, as so amended,
shall continue in full force and effect.
ARTICLES NINE AND TEN
[Reserved]
45
IN WITNESS WHEREOF, the UTI Beneficiaries, the Servicer, the Trustee,
the Delaware Trustee, and, solely for the limited purposes set forth in Sections
5.03(e), 5.11(d), 5.14, 5.15, 8.01, 8.03 and 8.08, the Trust Agent, have caused
this Agreement to be duly executed by their respective of ricers as of the day
and year first above written.
HONDA TITLING A L.P.
As Grantor and UTI Beneficiary
By: HONDA TITLING A LLC,
as General Partner
By: /s/ X. XXXXXX
------------------------
Name: X. Xxxxxx
Title: President
HONDA TITLING B L.P.,
as Grantor and UTI Beneficiary
By: HONDA TITLING B LLC,
as General Partner
By: /s/ X. XXXXXX
------------------------
Name: X. Xxxxxx
Title: President
AMERICAN HONDA FINANCE CORPORATION,
as Servicer
By: /s/ Xxxx X. Xxxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President, Finance
HVT, INC.,
as Trustee
By: /s/ XXXXXXX X. XXXXX
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
DELAWARE TRUST CAPITAL MANAGEMENT,
INC., as Delaware Trustee
By: /s/ XXXXXXX X. XXXXX
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trust Agent
By: /s/ XXXXXXX X. XXXXX
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
On April 1, 1998 before me, Xxxx Xxxxx, Notary Public
[insert date] [Here insert name and title of notary]
personally appeared X. Xxxxxx
/X/ personally known to me, or
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument,
and acknowledged to me that he executed the same in his authorized capacity,
and that by his signature on the instrument the person, or the entities upon
behalf of which such person acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ XXXX XXXXX [Seal]
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
On April 1, 1998 before me, Xxxx Xxxxx, Notary Public
[insert date] [Here insert name and title of notary]
personally appeared Xxxx X. Xxxxxxxxx
/X/ personally known to me, or
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument,
and acknowledged to me that he executed the same in his authorized capacity,
and that by his signature on the instrument the person, or the entities upon
behalf of which such person acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ XXXX XXXXX [Seal]
STATE OF DELAWARE )
) ss
COUNTY OF NEW CASTLE )
On March 31, 1998 before me, Xxxxxxx X. Xxxxxx, Notary Public for the
State of Delaware,
[insert date] [Here insert name and title of notary]
personally appeared Xxxxxxx Xxxxx, Vice President of Delaware Trust Capital
Management, Inc.,
/X/ personally known to me, or
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument,
and acknowledged to me that he executed the same in his authorized capacity,
and that by his signature on the instrument the person, or the entities upon
behalf of which such person acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ XXXXXXX X. XXXXXX [Seal]
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
On March 31, 1998 before me, Xxxxx Xxxxx,
[insert date] [Here insert name and title of notary]
personally appeared Xxxxxxx Xxxxx,
/ / personally known to me, or
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument,
and acknowledged to me that she executed the same in her authorized capacity,
and that by her signature on the instrument the person, or the entities upon
behalf of which such person acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ XXXXX XXXXX [Seal]
EXHIBIT A
CERTIFICATE OF TRUST OF HONDA LEASE TRUST
This Certificate of Trust of Honda Lease Trust (the "Trust"), dated as
of ___________, is being duly executed and filed by Delaware Trust Capital
Management, Inc., as Delaware trustee, and HVT, Inc., a Delaware corporation, as
trustee, to form a business trust under the Delaware Business Trust Act (12 DEL.
C. Section 3801 ET SEQ.).
(a) NAME. The name of the business trust formed hereby is Honda
Lease Trust.
(b) DELAWARE TRUSTEE. The name and business address of the trustee
of the Trust in the State of Delaware is Delaware Trust Capital Management,
Inc., ___________, Delaware.
(c) SERIES TRUST. The Trust shall be a series trust and 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.
(d) EFFECTIVE DATE. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
DELAWARE TRUST CAPITAL MANAGEMENT,
INC., as Delaware Trustee
By:
---------------------------------
Name:
Title:
HVT, INC., as Trustee
By:
---------------------------------
Name:
Title:
A-1
EXHIBIT B
THIS UTI CERTIFICATE MAY NOT BE TRANSFERRED OR
ASSIGNED EXCEPT UPON THE TERMS AND SUBJECT TO THE
CONDITIONS SPECIFIED HEREIN.
HONDA LEASE TRUST
UNDIVIDED TRUST INTEREST CERTIFICATE
evidencing a fractional undivided interest in the UTI Assets of Honda
Lease Trust, a business trust organized pursuant to the Delaware
Business Trust Act (the "Trust").
(This Certificate does not represent any interest in the SUBI Assets of
the Trust or an obligation of, or an interest in, Honda Titling A L.P.,
Honda Titling B L.P., American Honda Finance Corporation, HVT, Inc., or
any of their respective Affiliates.)
Percentage Interest: [99%][1%]
Number - U- ______
THIS CERTIFIES THAT __________________ is the registered owner of a
nonassessable, fully-paid, fractional undivided [99%] [1%] interest in the UTI
Assets of the Trust. The Trust was created pursuant to a trust agreement, dated
as of July 17, 1997, as amended, restated or supplemented from time to time (the
"Agreement"), among Honda Titling A L.P. and Honda Titling B L.P., each a
Delaware limited partnership, as grantors (the "Grantors") and initial
beneficiaries (the "UTI Beneficiaries"), American Honda Finance Corporation, a
California corporation, as servicer (the "Servicer"), HVT, Inc., a Delaware
corporation, as trustee (the "Trustee"), Delaware Trust Capital Management,
Inc., as Delaware trustee (the "Delaware Trustee"), and for the limited purposes
set forth therein, U.S. Bank National Association, a national banking
association, as trust agent (the "Trust Agent"). A summary of certain
provisions of the Agreement is set forth below. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Agreement.
This UTI Certificate is one of the duly authorized certificates issued
under the Agreement and designated as "Honda Lease Trust Undivided Trust
Interest Certificates" (the "UTI Certificates"). This UTI Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement, a
copy of which may be examined by the holder hereof during normal business hours
at the principal office of the Trustee or at such other place as may be
designated by the Trustee. By acceptance of this Certificate, the holder hereof
assents to the terms and conditions of the Agreement and agrees to be bound
thereby.
This UTI Certificate represents an ownership interest in the undivided
trust interest of the Trust (the "UTI"). The UTI constitutes an undivided
beneficial interest in all Trust Assets that have not been allocated from time
to time to a special unit of beneficial interest (a "SUBI") in the Trust
(collectively, the "UTI Assets"). The UTI does not evidence a direct interest
in the UTI Assets, nor does it represent a beneficial interest in any Trust
Assets other than the UTI Assets. The rights of the Holder of this UTI
Certificate with respect to the UTI Assets, including distributions in respect
thereof, are set forth in the Agreement.
B-1
The Trust Assets consist generally of cash capital, Leases of Leased
Vehicles that have been assigned to the Trust or the Trustee on behalf of the
Trust, the related Leased Vehicles, such other assets as may from time to time
be designated as "Trust Assets" under the Agreement and all proceeds of the
foregoing.
Pursuant to the Agreement, the Trustee shall from time to time, at the
direction of the UTI Beneficiaries and subject to satisfaction of certain
conditions, establish one or more SUBIs and allocate or cause to be allocated to
each such SUBI on the books and records of the Trust such Trust Assets (the
"SUBI Assets") as shall have been identified to such SUBI by the UTI
Beneficiaries. Upon allocation to a SUBI, the related SUBI Assets shall no
longer be UTI Assets unless and until specifically reallocated to the UTI from
the SUBJ. Each SUBI shall be represented by one or more certificates (each, a
"SUBI Certificate") distributed to or upon the order of the UTI Beneficiaries.
The UTI and each SUBI shall each constitute a separate series of the
Trust pursuant to Section 3806(b)(2) of the Delaware Act for which separate and
distinct records shall be maintained.
The UTI Certificates are limited in right of payment to certain
collections and recoveries respecting the Trust Assets not allocated to any
SUBI, all to the extent and as more specifically set forth in the Agreement. By
accepting this UTI Certificate, the holder hereof expressly (i) waives any claim
to any proceeds or assets of the Trustee and to all Trust Assets other than UTI
Assets and proceeds thereof and (ii) subordinates in favor of the holder of each
SUBI Certificate any claim to any related SUBI Asset that, notwithstanding
clause (i) above, may be determined to exist.
The Agreement, including the terms of this UTI Certificate, may be
amended or supplemented by written agreement upon the terms and subject to the
conditions set forth in the Agreement. If approval by the holder of this UTI
Certificate is required for any amendment or supplement to the Agreement or this
UTI Certificate, any such approval shall be conclusive and binding on the holder
giving such approval and on all future holders hereof and of any UTI Certificate
issued upon the permitted transfer or exchange hereof, whether or not notation
of such consent is made upon this UTI Certificate or any UTI Certificate issued
upon any such permitted transfer or exchange.
Neither the UTI nor any UTI Certificate may be transferred or assigned,
except upon the terms and subject to the conditions set forth in the Agreement.
To the fullest extent permitted by applicable law, any purported transfer or
assignment of the UTI or any UTI Certificate not complying with such
requirements shall be deemed null, void and of no effect under the Agreement.
Without limitation of the foregoing, the UTI or one or more UTI Certificates may
be pledged in connection with a Securitization, and a security interest therein
granted, and may be transferred or assigned absolutely to or by the pledgee
thereof solely in connection with the exercise of remedies with respect to a
default under or with respect to such Securitization; provided, that any such
pledgee must (i) give a non-petition covenant as provided in the Agreement and
(ii) execute an agreement in favor of the holders from time to time of any SUBI
Certificates to release all claims to SUBI Assets and, in the event that such
release is not given effect, to subordinate fully all claims that it may be
deemed to have against any SUBI Assets.
B-2
Any permitted transfer of this UTI Certificate is registrable upon
surrender of this UTI Certificate for registration of transfer at the corporate
trust office of the Trustee (or the Trust Agent, if applicable) accompanied by a
written instrument of transfer in form satisfactory to the Trustee, duly
executed by the registered holder hereof or such registered holder's attorney
duly authorized in writing, and thereupon one or more new UTI Certificates of a
like aggregate fractional undivided interest will be issued to the designated
permitted transferee.
Prior to due presentation of this UTI Certificate for registration of a
permitted transfer, the Trustee, the certificate registrar and any of their
respective agents may treat the Person in the name of which this UTI Certificate
is registered as the owner hereof for the purpose of receiving distributions and
for all other purposes, and, except as otherwise provided in the Agreement,
neither the Trustee, the certificate registrar nor any such agent shall be
affected by any notice to the contrary.
The Trust or the UTI may terminate upon the terms and subject to the
conditions set forth in the Agreement. The UTI Certificates will be cancelled
upon delivery to the Trustee following termination of the UTI.
Unless this UTI Certificate shall have been executed and authenticated
by an authorized officer of the Trustee, by manual signature, this UTI
Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose.
B-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this UTI Certificate to be duly executed.
Dated:
-----------------
HONDA LEASE TRUST
By: HVT, INC.,
as Trustee
By:
-----------------------------
Name:
Title:
This is one of the UTI Certificates referred
to in the within-mentioned Agreement.
HVT, INC.,
as Trustee
By:
-----------------------------
Name:
Title:
B-4
