EXHIBIT 4.2
EXECUTION COPY
AMENDED AND RESTATED
TRUST AGREEMENT
among
HOUSEHOLD AUTO RECEIVABLES CORPORATION,
U.S. BANK TRUST NATIONAL ASSOCIATION
Owner Trustee
and
(For certain limited purposes only)
U.S. BANK TRUST NATIONAL ASSOCIATION
Delaware Trustee
Dated as of October 9, 2001
TABLE OF CONTENTS
Page
ARTICLE I Definitions....................................................................................1
Section 1.1. Capitalized Terms..............................................................1
Section 1.2. Other Definitional Provisions..................................................3
Section 1.3. Action by or Consent of Noteholders and Certificate-holders....................3
Section 1.4. Material Adverse Effect........................................................4
ARTICLE II Organization..................................................................................4
Section 2.1. Name...........................................................................4
Section 2.2. Office.........................................................................4
Section 2.3. Purposes and Powers............................................................4
Section 2.4. Appointment of Owner Trustee and Delaware Trustee..............................5
Section 2.5. Initial Capital Contribution of Owner Trust Estate.............................5
Section 2.6. Declaration of Trust...........................................................5
Section 2.7. Liability......................................................................6
Section 2.8. Title to Trust Property........................................................6
Section 2.9. Situs of Trust.................................................................6
Section 2.10. Representations and Warranties of the Depositor................................6
Section 2.11. Federal Income Tax Allocations.................................................8
Section 2.12. Covenants of the Depositor.....................................................8
Section 2.13. Covenants of the Certificateholders............................................9
ARTICLE III Certificates and Transfer of Interests......................................................10
Section 3.1. Initial Ownership.............................................................10
Section 3.2. The Certificates..............................................................10
Section 3.3. Authentication of Certificates................................................11
Section 3.4. Registration of Transfer and Exchange of Certificates.........................11
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificates.............................12
Section 3.6. Persons Deemed Certificateholders.............................................12
Section 3.7. Access to List of Certificateholders' Names and Addresses.....................12
Section 3.8. Maintenance of Office or Agency...............................................13
Section 3.9. ERISA Restrictions............................................................13
Section 3.10. Securities Matters............................................................13
Section 3.11. Distributions.................................................................14
Section 3.12. Paying Agent..................................................................14
ARTICLE IV Voting Rights and Other Actions..............................................................14
Section 4.1. Prior Notice to Holders with Respect to Certain Matters.......................14
Section 4.2. Action by Certificateholders with Respect to Certain Matters..................15
Section 4.3. Action by Certificateholders with Respect to Bankruptcy.......................15
Section 4.4. Restrictions on Certificateholders' Power.....................................15
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Section 4.5. Majority Control..............................................................16
ARTICLE V Certain Duties................................................................................16
Section 5.1. Accounting and Records to the Noteholders, Certificate-holders, the Internal
Revenue Service and Others....................................................16
Section 5.2. Signature on Returns; Tax Matters Partner.....................................17
ARTICLE VI Authority and Duties of Owner Trustee........................................................17
Section 6.1. General Authority.............................................................17
Section 6.2. General Duties................................................................17
Section 6.3. Action upon Instruction.......................................................17
Section 6.4. No Duties Except as Specified in this Agreement or in Instructions............18
Section 6.5. No Action Except under Specified Documents or Instructions....................19
Section 6.6. Restrictions..................................................................19
ARTICLE VII Concerning the Owner Trustee................................................................19
Section 7.1. Acceptance of Trust and Duties................................................19
Section 7.2. Furnishing of Documents.......................................................20
Section 7.3. Representations and Warranties................................................20
Section 7.4. Reliance; Advice of Counsel...................................................21
Section 7.5. Not Acting in Individual Capacity.............................................22
Section 7.6. Owner Trustee Not Liable for Certificates or Receivables......................22
Section 7.7. Owner Trustee May Own Certificates and Notes..................................22
Section 7.8. Payments from Owner Trust Estate..............................................22
Section 7.9. Doing Business in Other Jurisdictions.........................................23
ARTICLE VIII Compensation of Owner Trustee and Delaware Trustee.........................................23
Section 8.1. Owner Trustee's and Delaware Trustee's Fees and Expenses......................23
Section 8.2. Indemnification...............................................................23
Section 8.3. Payments to the Owner Trustee and Delaware Trustee............................24
Section 8.4. Non-recourse Obligations......................................................24
ARTICLE IX Termination of Agreement.....................................................................24
Section 9.1. Termination of Agreement......................................................24
ARTICLE X Successor Owner Trustees and Delaware Trustees Additional Owner Trustees......................26
Section 10.1. Eligibility Requirements for Owner Trustee and Delaware Trustee...............26
Section 10.2. Resignation or Removal of Owner Trustee or Delaware Trustee...................26
Section 10.3. Successor Owner Trustee or Delaware Trustee...................................27
Section 10.4. Merger or Consolidation of Owner Trustee or Delaware Trustee..................28
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Section 10.5. Appointment of Co-Trustee or Separate Trustee.................................28
ARTICLE X-A AUTHORITY AND DUTIES OF DELAWARE TRUSTEE....................................................29
Section 10A.1 Acceptance of Trusts..........................................................29
Section 10A.2 Duties of Delaware Trustee....................................................29
Section 10A.3 Representations and Warranties................................................31
Section 10A.4 NOT ACTING IN INDIVIDUAL CAPACITY.............................................32
ARTICLE XI Miscellaneous................................................................................32
Section 11.1. Supplements and Amendments....................................................32
Section 11.2. No Legal Title to Owner Trust Estate in Certificateholders....................33
Section 11.3. Limitations on Rights of Others...............................................33
Section 11.4. Notices.......................................................................33
Section 11.5. Severability..................................................................34
Section 11.6. Separate Counterparts.........................................................34
Section 11.7. Assignments; Support Provider.................................................34
Section 11.8. Covenants of the Depositor....................................................34
Section 11.9. No Petition...................................................................34
Section 11.10. No Recourse...................................................................34
Section 11.11. Headings......................................................................35
Section 11.12. GOVERNING LAW.................................................................35
Section 11.13. Master Servicer...............................................................35
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
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THIS AMENDED AND RESTATED
TRUST AGREEMENT, dated as of October
9, 2001, among
HOUSEHOLD AUTO RECEIVABLES CORPORATION, a Nevada corporation (the
"Depositor"), U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking
association with its principal place of business in Illinois, as Owner Trustee
(the "Owner Trustee") and U.S. BANK TRUST NATIONAL ASSOCIATION, a national
banking association with its principal place of business in Delaware, as
Delaware Trustee (the "Delaware Trustee"), amends and restates in its entirety
that certain
Trust Agreement, dated as of October 9, 2001, among the Depositor,
the Owner Trustee and the Delaware Trustee.
ARTICLE I
DEFINITIONS
Section 1.1. CAPITALIZED TERMS. For all purposes of this
Agreement, the following terms shall have the meanings set forth below:
"Agreement" shall mean this Amended and Restated Agreement, as
the same may be amended and supplemented from time to time.
"Benefit Plan" shall have the meaning assigned to such term in
Section 3.9.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of
the Delaware Code, 12 DEL. CODE Section 3801 et seq. as the same may be amended
from time to time.
"Certificates" means, if the Depositor elects (i) to evidence
its interest in certificated form pursuant to Section 3.2, the certificate
substantially in the form of Exhibit A or (ii) to have its interest be
uncertified pursuant to Section 3.2, such uncertificated interest.
"Certificate Majority" shall have the meaning assigned to such
term in Section 4.1.
"Certificate Paying Agent" means Xxxxx Fargo Bank Minnesota,
National Association, a national banking association.
"Certificate Register" and "Certificate Registrar" shall mean
the register mentioned and the registrar appointed pursuant to Section 3.4.
"Certificate of Trust" shall mean the Certificate of Trust in
the form of Exhibit B to be filed for the Trust pursuant to Section 3810(a) of
the Business Trust Statute.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
000 Xxxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, XX 00000-0000, Attention:
Corporate Trust Administration, and, with respect to the Delaware Trustee, the
principal corporate trust office of the
Delaware Trustee located at 000 Xxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, or, in each case, at such other address as the Owner
Trustee or Delaware Trustee, as the case may be, may designate by notice to the
Certificateholders and the Depositor, or the principal corporate trust office of
any successor Owner Trustee or Delaware Trustee (the address of which the
successor owner trustee or Delaware Trustee will notify the Certificateholders
and the Depositor).
"Delaware Trustee" shall mean U.S. Bank Trust National
Association, a national banking association with its principal place of business
in Delaware, not in its individual capacity but solely as Delaware trustee under
this Agreement, and any successor Delaware Trustee hereunder.
"Depositor" shall mean
Household Auto Receivables Corporation
in its capacity as Depositor hereunder.
"ERISA" shall have the meaning assigned to such term in
Section 3.9.
"Expenses" shall have the meaning assigned to such term in
Section 8.2.
"Holder" or "Certificateholder" shall mean a Person in whose
name a Certificate is registered on the Certificate Register.
"Household" shall mean Household Finance Corporation.
"Indemnified Parties" shall have the meaning assigned to such
term in Section 8.2.
"Owner Trust Estate" shall mean all right, title and interest
of the Trust in and to the property and rights assigned to the Trust pursuant to
Article II of the Master Sale and Servicing Agreement, all funds on deposit from
time to time in the Trust Accounts and all other property of the Trust from time
to time, including any rights of the Owner Trustee and the Trust pursuant to the
Master Sale and Servicing Agreement and each Related Document.
"Owner Trustee" shall mean U.S. Bank Trust National
Association, a national banking association with its principal place of business
in Illinois, not in its individual capacity but solely as Owner Trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Percentage Interest" shall mean, with respect to a
Certificate, the portion of the interests in the Trust represented by a
Certificate, as reflected in the Certificate Register.
"Secretary of State" shall mean the Secretary of State of the
State of Delaware.
"Securities Act" shall have the meaning assigned to such term
in Section 3.4.
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"Series Trust Estate" shall mean the property granted to the
Owner Trustee on behalf of the Trust pursuant to Section 1.02 of the Series
Supplement.
"Treasury Regulations" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code. References herein
to specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this Agreement.
Section 1.2. OTHER DEFINITIONAL PROVISIONS. (a) Capitalized
terms used herein and not otherwise defined have the meanings assigned to them
in the Master Sale and Servicing Agreement or, if not defined therein, in the
Indenture, PROVIDED THAT, as used herein, Series means only the Series of Notes
and Series of Certificates with respect to which the Trust is the Issuer and
only such Series Trust Estates included in the Owner Trust Estate.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any Certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any Certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles as in effect on the
date of this Agreement or any such certificate or other document, as applicable.
To the extent that the definitions of accounting terms in this Agreement or in
any such certificate or other document are inconsistent with the meanings of
such terms under generally accepted accounting principles, the definitions
contained in this Agreement or in any such certificate or other document shall
control.
(d) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
Section 1.3. ACTION BY OR CONSENT OF NOTEHOLDERS AND
CERTIFICATE-HOLDERS. Whenever any provision of this Agreement refers to action
to be taken, or consented to, by Noteholders or Certificateholders, such
provision shall be deemed to refer to the Certificateholder or Noteholder, as
the case may be, of record as of the Record Date immediately preceding the date
on which such action is to be taken, or consent given, by Noteholders or
Certificateholders. Solely for the purposes of any action to be taken, or
consented to, by Noteholders, any Note registered in the name of
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the Depositor or any Affiliate thereof shall be deemed not to be outstanding;
PROVIDED, HOWEVER, that, solely for the purpose of determining whether the
Indenture Trustee is entitled to rely upon any such action or consent, only
Notes which the Owner Trustee or the Indenture Trustee knows to be so owned
shall be so disregarded.
Section 1.4. MATERIAL ADVERSE EFFECT. Whenever a determination
is to be made under this Agreement as to whether a given event, action, course
of conduct or set of facts or circumstances could or would have a material
adverse effect on the Noteholders or Certificateholders (or any similar or
analogous determination), such determination shall be made without taking into
account the funds available from claims under any policy or other Series
Support.
ARTICLE II
ORGANIZATION
Section 2.1. NAME. There is hereby formed a trust to be known
as "Household Automotive Trust 2001-3", in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued.
Section 2.2. OFFICE. The principal place of business of the
Trust for purposes of Delaware law shall be in care of the Delaware Trustee at
the Corporate Trust Office of the Delaware Trustee or at such other address as
the Delaware Trustee may designate by written notice to the Certificateholders
and the Depositor. The Trust may establish additional offices located at such
place or places inside or outside the State of Delaware as the Owner Trustee may
designate from time to time by written notice to the Certificateholders and the
Depositor. Initially, the Trust shall establish one such additional office at
the Corporate Trust Office of the Owner Trustee.
Section 2.3. PURPOSES AND POWERS. (a) The purpose of the Trust
is, and the Trust shall have the power and authority, to engage in the following
activities:
(i) to issue the Notes pursuant to the Indenture and the
Series Supplement and the Certificates pursuant to this Agreement and
the Series Supplement, and to sell the Notes;
(ii) with the proceeds of the sale of the Notes, to fund
the expense of obtaining any Series Support and to pay the
organizational, start-up and transactional expenses of the Trust and to
pay the balance to the Depositor pursuant to the Master Sale and
Servicing Agreement;
(iii) with respect to the Series Trust Estate, to assign,
grant, transfer, pledge, mortgage and convey the Series Trust Estate to
the Indenture Trustee pursuant to the Indenture and the Series
Supplement for the benefit of the Noteholders;
(iv) to enter into and perform its obligations under the
Basic Documents and the Related Documents, in each case, to which it is
a party;
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(v) to acquire, hold and manage the Owner Trust Estate;
(vi) to make distributions on the Certificates in
accordance with their respective terms;
(vii) to own Class SV Preferred Stock of the Depositor;
(viii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(ix) subject to compliance with the Basic Documents and the
Related Documents, to engage in such other activities as may be
required in connection with conservation of the Owner Trust Estate and
the making of distributions to the Certificateholders and the
Noteholders.
(b) The Trust is hereby authorized to engage in the foregoing
activities. The Trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Agreement, the Basic Documents or any Related Documents.
Section 2.4. APPOINTMENT OF OWNER TRUSTEE AND DELAWARE
TRUSTEE. The Depositor hereby appoints the Owner Trustee and the Delaware
Trustee as trustees of the Trust effective as of the date hereof, to have all
the respective rights, powers and duties set forth herein.
Section 2.5. INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST
ESTATE. The Depositor hereby sells, assigns, transfers, conveys and sets over to
the Owner Trustee, on behalf of the Trust, as of the date hereof, the sum of
$1,000 and one share of Class SV Preferred Stock of the Depositor. The Owner
Trustee hereby acknowledges receipt in trust from the Depositor, as of the date
hereof, of the foregoing contribution, which shall constitute the initial Owner
Trust Estate. The Depositor shall pay organizational expenses of the Trust as
they may arise.
Section 2.6. DECLARATION OF TRUST. The Owner Trustee hereby
declares that it will hold the Owner Trust Estate in trust upon and subject to
the conditions set forth herein, on behalf of the Trust, for the use and benefit
of the Certificateholders, subject to the obligations of the Trust under the
Basic Documents. It is the intention of the parties hereto that the Trust
constitute a business trust under the Business Trust Statute and that this
Agreement constitute the governing instrument of such business trust. It is the
intention of the parties hereto that, solely for income and franchise tax
purposes, the Trust shall be treated as a branch; PROVIDED, HOWEVER, that in the
event Certificates are owned by more than one Certificateholder, it is the
intention of the parties hereto that, solely for income and franchise tax
purposes, the Trust shall then be treated as a partnership and that, unless
otherwise required by appropriate tax authorities, only after such time the
Trust will file or cause to be filed annual or other necessary returns, reports
and other forms consistent with the characterization of the Trust as a
partnership for such tax purposes. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth herein and to the
extent not inconsistent herewith, in
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the Business Trust Statute with respect to accomplishing the purposes of the
Trust. The Owner Trustee shall file the Certificate of Trust with the Secretary
of State.
Section 2.7. LIABILITY. (a) The Depositor shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.
(b) No Holder, other than to the extent set forth in clause
(a), shall have any personal liability for any liability or obligation of the
Trust.
Section 2.8. TITLE TO TRUST PROPERTY. (a) Legal title to all
of the Owner Trust Estate shall be vested at all times in the Trust as a
separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Owner Trust Estate to be vested in a trustee or
trustees, in which case title shall be deemed to be vested in the Owner Trustee,
a co-trustee and/or a separate trustee, as the case may be.
(b) The holders of the Certificates shall not have legal title
to any part of the Series Trust Estate. The Holders of the Certificates shall be
entitled to receive distributions with respect to their undivided ownership
interest therein in accordance with the terms hereof and the Series Supplement.
No transfer, by operation of law or otherwise, of any right, title or interest
by any Certificateholder of its ownership interest in the Owner Trust Estate
shall operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Series Trust Estate.
Section 2.9. SITUS OF TRUST. The Trust will be located in the
State of Delaware and administered in the State of Illinois. All bank accounts
maintained by the Owner Trustee on behalf of the Trust shall be located with the
Certificate Paying Agent in the State of Illinois. Payments will be received by
the Certificate Paying Agent on behalf of the Trust in Illinois and payments
will be made by the Trust from Illinois. The Trust shall not have any employees
in any state other than Delaware; PROVIDED, HOWEVER, that nothing herein shall
restrict or prohibit the Owner Trustee, the Master Servicer or any agent of the
Trust from having employees within or without the State of Delaware. The
principal office of the Trust will be at the Corporate Trust Office in Delaware.
Section 2.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor makes the following representations and warranties on which the
Owner Trustee relies in accepting the Owner Trust Estate in trust and executing
the Certificates and Notes and upon which any Support Provider relies in
providing any Series Support. Each of the following representations and
warranties shall be deemed to be made on each date on which a Series Trust
Estate is pledged under the Indenture.
(a) ORGANIZATION AND GOOD STANDING. The Depositor is duly
organized and validly existing as a Nevada corporation with power and authority
to own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted and is proposed to be
conducted pursuant to this Agreement and the Basic Documents.
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(b) DUE QUALIFICATION. It is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of its
property, the conduct of its business and the performance of its obligations
under this Agreement and the Basic Documents requires such qualification and in
which the failure to so qualify would have a material adverse effect on the
business, properties, assets or condition (financial or otherwise) of the
Depositor.
(c) POWER AND AUTHORITY. The Depositor has the corporate power
and authority to execute and deliver this Agreement and to carry out its terms;
the Depositor has full power and authority to sell and assign the property to be
sold and assigned to and deposited with the Trust; the Depositor has duly
authorized such sale, assignment and deposit to the Trust by all necessary
corporate action; and the execution, delivery and performance of this Agreement
has been duly authorized by the Depositor by all necessary corporate action.
(d) BINDING OBLIGATIONS. This Agreement, when duly executed
and delivered, shall constitute legal, valid and binding obligations of the
Depositor enforceable against the Depositor in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
by equitable limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(e) NO CONSENT REQUIRED. To the best knowledge of the
Depositor, no consent, license, approval or authorization or registration or
declaration with, any Person or with any governmental authority, bureau or
agency is required in connection with the execution, delivery or performance of
this Agreement and the Related Documents, except for such as have been obtained,
effected or made or as to which a failure to obtain, effect or make would not
have a material adverse effect on the business, properties, assets or condition
(financial or other) of the Depositor.
(f) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or by-laws of the Depositor, or any material
indenture, agreement or other instrument to which the Depositor is a party or by
which it is bound; nor result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Basic Documents or any applicable
Related Documents); nor violate any law or, to the best of the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of any
court or of any Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or its
properties, PROVIDED, HOWEVER, that the Receivables will not satisfy the
Eligibility Criteria set forth in Schedule I to the Series Supplement until the
Closing Date.
(g) NO PROCEEDINGS. To the best of the Depositor's knowledge,
there are no proceedings or investigations pending or, to its knowledge
threatened against it
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before any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over it or its properties (A)
asserting the invalidity of this Agreement or any of the Basic Documents, (B)
seeking to prevent the issuance of the Certificates or the Notes or the
consummation of any of the transactions contemplated by this Agreement or any of
the Basic Documents, (C) seeking any determination or ruling that might
materially and adversely affect its performance of its obligations under, or the
validity or enforceability of, this Agreement or any Related Documents, or (D)
seeking to adversely affect the federal income tax or other federal, state or
local tax attributes of any of the Notes or Certificates.
Section 2.11. FEDERAL INCOME TAX ALLOCATIONS. (a) For so long
as the Trust has a single owner for federal income tax purposes, it will,
pursuant to Treasury Regulations promulgated under section 7701 of the Code, be
disregarded as an entity distinct from the Certificateholder for all federal
income tax purposes. Accordingly, for federal income tax purposes, the
Certificateholder will be treated as (i) owning all assets owned by the Trust,
(ii) having incurred all liabilities incurred by the Trust, and (iii) all
transactions between the Trust and the Certificateholder will be disregarded.
(b) Neither the Owner Trustee nor any Certificateholder will,
under any circumstances, and at any time, make an election on IRS Form 8832 or
otherwise, to classify the Trust as an association taxable as a corporation for
federal, state or any other applicable tax purpose.
(c) In the event that the Trust has two equity owners for
federal income tax purposes, the Trust will be treated as a partnership. At any
such time that the Trust has two equity owners, this Agreement will be amended,
in accordance with Section 11.1 herein, and appropriate provisions will be added
so as to provide for treatment of the Trust as a partnership.
Section 2.12. COVENANTS OF THE DEPOSITOR. The Depositor agrees
and covenants for the benefit of the Owner Trustee and the Indenture Trustee for
the benefit of the Noteholders, during the term of this Agreement, and to the
fullest extent permitted by applicable law, that:
(a) (i) it shall not create, incur or suffer to exist any
indebtedness or (ii) engage in any business, except (x) as permitted by its
certificate of incorporation and the Related Documents or (y) in connection with
a securitization transaction and the related documents in which the related
indebtedness is issued pursuant to an indenture having a provision substantially
similar to Section 11.18 of the Indenture; PROVIDED, HOWEVER, that no other
Series shall be issued under the Basic Documents so long as the Notes are
outstanding;
(b) it shall not, for any reason, institute proceedings for
the trust to be Fadjudicated bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Trust, or file a
petition seeking or consenting to reorganization or relief under any applicable
federal or state law relating to the bankruptcy of the Trust, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Trust or a substantial part of the property of the
Trust or cause or permit the Trust to make any assignment for the benefit
8
of creditors, or admit in writing the inability of the Trust to pay its debts
generally as they become due, or declare or effect a moratorium on the debt of
the Trust or take any action in furtherance of any such action;
(c) it shall obtain from each counterparty to each Basic
Document to which it or the Trust is a party and each other agreement entered
into on or after the date hereof to which it or the Trust is a party, an
agreement by each such counterparty that prior to the occurrence of the event
specified in Section 9.1(e) such counterparty shall not institute against, or
join any other Person in instituting against, it or the Trust, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United States or any state of the
United States; and
(d) it shall not, for any reason, withdraw or attempt to
withdraw from this Agreement, dissolve, institute proceedings for it to be
adjudicated a bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against it, or file a petition seeking or consenting
to reorganization or relief under any applicable federal or state law relating
to bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of it or a
substantial part of its property, or make any assignment for the benefit of
creditors, or admit in writing its inability to pay its debts generally as they
become due, or declare or effect a moratorium on its debt or take any action in
furtherance of any such action.
Section 2.13. COVENANTS OF THE CERTIFICATEHOLDERS. Each
Certificateholder agrees:
(a) to be bound by the terms and conditions of the related
Certificates, of this Agreement and, with respect to the holders of
Certificates, of the Series Supplement, including any supplements or amendments
hereto and to perform the obligations of a Certificateholder as set forth
therein or herein, in all respects as if it were a signatory hereto. This
undertaking is made for the benefit of the Trust, the Owner Trustee and the
Noteholders;
(b) to hereby appoint the Depositor as such
Certificateholder's agent and attorney-in-fact to sign any federal income tax
information return filed on behalf of the Trust, if any, and agree that, if
requested by the Trust, it will sign such federal income tax information return
in its capacity as holder of an interest in the Trust. Each Certificateholder
also hereby agrees that in its tax returns it will not take any position
inconsistent with those taken in any tax returns that may be filed by the Trust;
(c) if such Certificateholder is other than an individual or
other entity holding its Certificate through a broker who reports securities
sales on Form 1099-B, to notify the Owner Trustee of any transfer by it of a
Certificate in a taxable sale or exchange, within 30 days of the date of the
transfer;
(d) until the completion of the events specified in Section
9.1(e), not to, for any reason, institute proceedings for the Trust or the
Depositor to be adjudicated a bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Trust, or file a
petition seeking or consenting to reorganization or
9
relief under any applicable federal or state law relating to bankruptcy, or
consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Trust or a substantial part of
its property, or cause or permit the Trust to make any assignment for the
benefit of its creditors, or admit in writing its inability to pay its debts
generally as they become due, or declare or effect a moratorium on its debt or
take any action in furtherance of any such action; and
(e) that there shall not be more than 98 other holders of
Certificates.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.1. INITIAL OWNERSHIP. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.5, the Trust
shall issue an uncertificated ownership interest in the Trust (the
"Uncertificated Certificate") to the Depositor. Unless and until the Depositor
transfers all or a portion of the Percentage Interest represented by such
Uncertificated Certificate, such Uncertificated Certificate shall represent one
hundred percent (100%) of the Percentage Interest.
Section 3.2. THE CERTIFICATES. (a) The Certificates shall be
in uncertificated form with records of interest ownership maintained by the
Certificate Registrar in the Certificate Register. If, on or after the Closing
Date, the holder of any Uncertificated Certificate delivers to the Owner Trustee
a written request that the Uncertificated Certificate specified in such request
be issued in certificated form (a related "Certification Request"), the Owner
Trustee shall promptly issue such Certificate to the holder thereof in
certificated form. If a Certification Request has been delivered, the
Certificate will be issued in registered form, substantially in the form of
Exhibit A, and shall upon issue, be executed and delivered by the Depositor to
the Owner Trustee for authentication and redelivery as provided in Section 3.3.
(b) If the Certificates are in certificated form, they shall
be executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefit of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates.
(c) A transferee of a Certificate (whether in certificated or
uncertificated form) shall become a Certificateholder, and shall be entitled to
the rights and subject to the obligations of a Certificateholder hereunder, upon
due registration of such Certificate in such transferee's name pursuant to
Section 3.4.
(d) No Certificates shall be issued under this Agreement
unless such Certificates have been authorized pursuant to the Series Supplement
and all conditions precedent to the issuance thereof, as specified in the Series
Supplement shall have been
10
satisfied. All Certificates issued under this Agreement shall be in all respects
entitled to the benefits hereof and of the Owner Trust Estate.
Section 3.3. AUTHENTICATION OF CERTIFICATES. If the
Certificates are in certificated form, the Owner Trustee shall cause the related
Certificates to be executed on behalf of the Trust, authenticated and delivered
to or upon the written order of the Depositor, signed by its chairman of the
board, its president or any vice president, its treasurer or any assistant
treasurer without further corporate action by the Depositor, in authorized
denominations. No Certificate shall entitle its holder to any benefit under this
Agreement or, with respect to a Series, the Series Supplement, or shall be valid
for any purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee or its authenticating agent, by manual signature; such
authentication shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
Section 3.4. REGISTRATION OF TRANSFER AND EXCHANGE OF
CERTIFICATES. (a) The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.8, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Certificates (whether in
certificated or uncertificated form) and of transfers and exchanges of
Certificates (whether in certificated or uncertificated form) as herein
provided. The Owner Trustee shall be the initial Certificate Registrar .
(b) The Certificate Registrar shall provide the Indenture
Trustee with a list of the names and addresses of the Certificateholders on the
Closing Date in the form which such information is provided to the Certificate
Registrar by the Depositor. Upon any transfers of Certificates, the Certificate
Registrar shall notify the Indenture Trustee of the name and address of the
transferee in writing, by facsimile, on the day of such transfer.
(c) If a Certificate is in certificated form, upon surrender
for registration of transfer of any Certificate to the Certificate Registrar at
the office or agency maintained pursuant to Section 3.8, the Owner Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Series in the aggregate
Percentage Interest to be transferred, dated the date of authentication by the
Owner Trustee or any authenticating agent. If a Certificate is in uncertificated
form, upon representation of such Certificate in accordance with Section 3.2,
the Certificate Registrar shall reflect in the Certificate Register the transfer
of the relevant Percentage Interest. If a Certificate is in certificated form,
at the option of the Holder thereof, such Certificate may be exchanged for one
or more other Certificates of the same Series in authorized denominations of a
like Percentage Interest upon surrender of the Certificates of the same Series,
to be exchanged at the office or agency maintained pursuant to Section 3.8.
Certificates may be issued in any Percentage Interest not to exceed 100%.
(d) Every Certificate presented or, in the case of
certificated Certificates, surrendered for registration of transfer or exchange
shall be accompanied by
11
a written instrument of transfer in form satisfactory to the Owner Trustee and
the Certificate Registrar duly executed by the Certificateholder or his attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Certificate Registrar,
which requirements include membership or participation in the Securities
Transfer Agent's Medallion Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Certificate Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Exchange Act. Each
certificated Certificate surrendered for registration of transfer or exchange
shall be canceled and subsequently disposed of by the Owner Trustee in
accordance with its customary practice.
(e) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
Section 3.5. MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES. If (a) any mutilated Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Certificate and (b)
there shall be delivered to the Certificate Registrar and the Owner Trustee,
such security or indemnity as may be required by them to hold each of them
harmless, then in the absence of notice that such Certificate shall have been
acquired by a bona fide purchaser, the Owner Trustee on behalf of the Trust
shall execute and the Owner Trustee or its authenticating agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Series
principal balance. In connection with the issuance of any new Certificate under
this Section, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this section shall constitute conclusive evidence of an ownership
interest in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 3.6. PERSONS DEEMED CERTIFICATEHOLDERS. Every Person
by virtue of becoming a Certificateholder in accordance with this Agreement and
the rules and regulations of the Certificate Registrar shall be deemed to be
bound by the terms of this Agreement. Prior to due presentation of a Certificate
for registration of transfer, the Owner Trustee, the Certificate Registrar and
any agent of the Owner Trustee and the Certificate Registrar may treat the
Person in whose name any Certificate shall be registered in the Certificate
Register as the owner of such Certificate for the purpose of receiving
distributions pursuant hereto, the Indenture or the Series Supplement (in the
case of a Certificate) and for all other purposes whatsoever, and none of the
Owner Trustee, the Certificate Registrar, nor any agent of the Owner Trustee or
the Certificate Registrar shall be bound by any notice to the contrary.
Section 3.7. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Owner Trustee or the Certificate Registrar shall furnish or cause
to be furnished to the Master Servicer, the Depositor or the Indenture Trustee
within 15 days after receipt
12
by the Owner Trustee or the Certificate Registrar of a request therefor from
such Person in writing, a list, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more Holders
of Certificates or one or more Holders of Certificates evidencing not less than
25% of the Percentage Interest apply in writing to the Owner Trustee or the
Certificate Registrar, and such application states that the applicants desire to
communicate with other Certificateholders with respect to their rights under
this Agreement, under the Certificates of such Series or under the Series
Supplement and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Owner Trustee or the
Certificate Registrar shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders of such Series. Each Holder, by receiving and
holding a Certificate, shall be deemed to have agreed not to hold any of the
Depositor, the Master Servicer, the Owner Trustee or any agent thereof
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 3.8. MAINTENANCE OF OFFICE OR AGENCY. The Owner
Trustee or the Certificate Registrar shall maintain in Chicago, Illinois, an
office or offices or agency or agencies where Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Owner Trustee in respect of the Certificates and the Basic Documents
may be served. The Owner Trustee initially designates its Corporate Trust Office
for such purposes. The Owner Trustee shall give prompt written notice to the
Depositor, the Certificateholders and (unless a Support Default shall have
occurred and be continuing) any Support Provider of any change in the location
of the Certificate Register or any such office or agency.
Section 3.9. ERISA RESTRICTIONS. The Certificates may not be
acquired by or for the account of (i) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the provisions of Title I of ERISA, (ii) a plan
(as defined in Section 4975(e)(1) of the Code) that is subject to Section 4975
of the Code or (iii) any entity whose underlying assets include assets of a plan
described in (i) or (ii) by reason of such plan's investment in the entity
(each, a "Benefit Plan"). The Certificate Registrar shall not register the
transfer of a Certificate unless the transferee has delivered to the Owner
Trustee a representation letter in form and substance satisfactory to the Owner
Trustee to the effect that the transferee is not, and is not acquiring the
Certificate for the account of, a Benefit Plan.
Section 3.10. SECURITIES MATTERS. Notwithstanding anything
contained herein to the contrary, the Owner Trustee shall not be responsible for
ascertaining whether any transfer complies with the registration provisions or
exemptions from the Securities Act, the Exchange Act, applicable state
securities law or the Investment Company Act; PROVIDED, HOWEVER, that if a
certificate is specifically required to be delivered to the Owner Trustee by a
purchaser or transferee of a Certificate, the Owner Trustee shall be under a
duty to examine the same to determine whether it conforms to the requirements of
this Agreement and shall promptly notify the party delivering the same if such
certificate does not so conform.
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Section 3.11. DISTRIBUTIONS. Distributions shall be made from
time to time by the Owner Trustee or the Certificate Paying Agent in accordance
with the Percentage Interests of the Certificateholders.
Section 3.12. PAYING AGENT. Distributions to be made in
respect of the Certificates pursuant to this Agreement, or the Series Supplement
shall be made by the Certificate Paying Agent, by wire transfer or check mailed
to the Certificateholder of record in the Certificate Register without the
presentation or surrender of the Certificate or the making of any notation
thereon, except as provided in Section 9.1(c) with respect to the final
distribution on a Certificates.
ARTICLE IV
VOTING RIGHTS AND OTHER ACTIONS
Section 4.1. PRIOR NOTICE TO HOLDERS WITH RESPECT TO CERTAIN
MATTERS. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholders in writing of the proposed
action and Certificateholders holding, in the aggregate, greater than 50% of the
Percentage Interests (a "Certificate Majority") shall not have notified the
Owner Trustee in writing prior to the 30th day after such notice is given that
such Certificateholders have withheld consent or provided alternative direction:
(a) the election by the Trust to file an amendment to the
Certificate of Trust, which amendment shall have satisfied the Rating Agency
Condition (unless such amendment is required to be filed under the Business
Trust Statute or unless such amendment would not materially and adversely affect
the interests of the Holders);
(b) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
or
(d) except pursuant to Section 13.1(b) of the Master Sale and
Servicing Agreement, the amendment, change or modification of the Master Sale
and Servicing Agreement, except to cure any ambiguity or defect or to amend or
supplement any provision in a manner that would not materially adversely affect
the interests of the Certificateholders.
(e) the Depositor shall not, without the unanimous consent of
the holders of the Class SV Preferred Stock of the Depositor, institute
proceedings to be adjudicated insolvent, or consent to the institution of any
bankruptcy or insolvency case or proceedings against it, or file or consent to a
petition under any applicable federal or state law relating to bankruptcy,
seeking the Depositor's liquidation or reorganization or any other relief for
the Corporation as debtor, or consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian or sequestrator (or other similar
official) of the
14
Corporation or a substantial part of its property, or make any assignment for
the benefit of creditors, or admit in writing its inability to pay its debts
generally as they become due, or take any corporate action in furtherance of
such action.
The Owner Trustee shall notify the Certificateholders in
writing of any appointment of a successor Note Registrar or Certificate
Registrar within five Business Days thereof.
Section 4.2. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO
CERTAIN MATTERS. The Owner Trustee shall not have the power (a) to remove the
Master Servicer under the Master Sale and Servicing Agreement or (b) except as
expressly provided in the Indenture and the Series Supplement and at the written
direction of the Certificateholders, sell the Receivables after the termination
of the Indenture. The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by the
Certificateholders and the furnishing of indemnification satisfactory to the
Owner Trustee by the Certificateholders.
Section 4.3. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO
BANKRUPTCY. Until one year and one day following the date of payment in full of
the Notes, the Owner Trustee shall not have the power to, and shall not,
commence any proceeding or other actions contemplated by Section 2.13(d) hereof
relating to the Trust without the prior written consent of all the
Certificateholders and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.4. RESTRICTIONS ON CERTIFICATEHOLDERS' POWER.
(a) The Certificateholders shall not direct the Owner Trustee to take or refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of the
Basic Documents or would be contrary to Section 2.3 or otherwise contrary to law
nor shall the Owner Trustee be obligated to follow any such direction, if given.
(b) No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to this
Agreement or any Basic Document, unless there are no outstanding Notes and
unless the Certificate Majority previously shall have given to the Owner Trustee
a written notice of default and of the continuance thereof, as provided in this
Agreement, and also unless the Certificate Majority shall have made written
request upon the Owner Trustee to institute such action, suit or proceeding in
its own name as Owner Trustee under this Agreement and shall have offered to the
Owner Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Owner
Trustee, for 30 days after its receipt of such notice, request, and offer of
indemnity, shall have neglected or refused to institute any such action, suit,
or proceeding, and during such 30-day period no request or waiver inconsistent
with such written request has been given to the Owner Trustee pursuant to and in
compliance with this section or Section 6.3; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Owner Trustee, that no one or more Holders of
Certificates shall
15
have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb, or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder, or to enforce
any right under this Agreement, except in the manner provided in this Agreement
and for the equal, ratable, and common benefit of all Certificateholders. For
the protection and enforcement of the provisions of this Section 4.4, each and
every Certificateholder and the Owner Trustee shall be entitled to such relief
as can be given either at law or in equity.
Section 4.5. MAJORITY CONTROL. No Certificateholder shall have
any right to vote or in any manner otherwise control the operation and
management of the Trust except as expressly provided in this Agreement. Except
as expressly provided herein, any action that may be taken by the
Certificateholders under this Agreement may be taken by the Certificate
Majority. Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by the Certificate Majority at the time of the delivery of such notice.
ARTICLE V
CERTAIN DUTIES
Section 5.1. ACCOUNTING AND RECORDS TO THE NOTEHOLDERS,
CERTIFICATE-HOLDERS, THE INTERNAL REVENUE SERVICE AND OTHERS. Subject to
Sections 12.1(b)(iii) and 12.1(c) of the Master Sale and Servicing Agreement,
the Master Servicer shall (a) maintain (or cause to be maintained) the books of
the Trust on a calendar year basis on the accrual method of accounting,
including, without limitation, the allocations of net income under Section 2.11,
(b) deliver (or cause to be delivered) to each Certificateholder, as may be
required by the Code and applicable Treasury Regulations, such information as
may be required (including Schedule K-1, if applicable) to enable each
Certificateholder to prepare its Federal and state income tax returns, (c) file
or cause to be filed, if necessary, such tax returns relating to the Trust
(including a partnership information return, Form 1065), and direct the Owner
Trustee or the Master Servicer, as the case may be, to make such elections as
may from time to time be required or appropriate under any applicable state or
Federal statute or rule or regulation thereunder so as to maintain the Trust's
characterization as a branch, or if applicable, as a partnership, for Federal
income tax purposes and (d) collect or cause to be collected any withholding tax
as described in and in accordance with the Master Sale and Serving Agreement or
the Series Supplement with respect to income or distributions to
Certificateholders and the appropriate forms relating thereto. The Owner Trustee
or the Master Servicer, as the case may be, shall make all elections pursuant to
this Section 5.1 as directed in writing by the Depositor. The Owner Trustee
shall sign all tax information returns, if any, filed pursuant to this Section
5.1 and any other returns as may be required by law, and in doing so shall rely
entirely upon, and shall have no liability for information provided by, or
calculations provided by, the Depositor or the Master Servicer. The Owner
Trustee shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the Receivables. The
Owner Trustee shall not make the election provided under Section 754 of the
Code.
16
Section 5.2. SIGNATURE ON RETURNS; TAX MATTERS PARTNER. (a)
Notwithstanding the provisions of Section 5.1 and in the event that the Trust is
characterized as a partnership, the Owner Trustee shall sign on behalf of the
Trust the tax returns of the Trust, unless applicable law requires a
Certificateholder to sign such documents, in which case such documents shall be
signed by the Depositor.
(b) In the event that the Trust is characterized as a
partnership, the Depositor shall be the "tax matters partner" of the Trust
pursuant to the Code.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1. GENERAL AUTHORITY. The Owner Trustee is
authorized and directed to execute and deliver on behalf of the Trust the Basic
Documents to which the Trust is named as a party and each certificate or other
document attached as an exhibit to or contemplated by the Basic Documents to
which the Trust is named as a party and any amendment thereto, in each case, in
such form as the Depositor shall approve as evidenced conclusively by the Owner
Trustee's execution thereof, and on behalf of the Trust, to direct the Indenture
Trustee to authenticate and deliver the Notes. In addition to the foregoing, the
Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Trust pursuant to the Basic Documents. The Owner Trustee is
further authorized from time to time to take such action as the Certificate
Majority recommends with respect to the Basic Documents so long as such
activities are consistent with the terms of the Basic Documents.
Section 6.2. GENERAL DUTIES. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement and to administer the Trust in
accordance with the provisions of this Agreement and in the interest of the
Holders, subject to the Basic Documents. Notwithstanding the foregoing, the
Owner Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent the Master Servicer has
agreed in the Master Sale and Servicing Agreement to perform any act or to
discharge any duty of the Trust or the Owner Trustee hereunder or under any
Basic Document and the Owner Trustee shall not be liable for the default or
failure of the Master Servicer to carry out its obligations under the Master
Sale and Servicing Agreement.
Section 6.3. ACTION UPON INSTRUCTION. (a) Subject to Article
IV, the Certificate Majority shall have the exclusive right to direct the
actions of the Owner Trustee in the management of the Trust, so long as such
instructions are not inconsistent with the express terms set forth herein or in
any Basic Document. The Certificate Majority shall not instruct the Owner
Trustee in a manner inconsistent with this Agreement or the Basic Documents.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in
17
liability on the part of the Owner Trustee or is contrary to the terms hereof or
of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document, the Owner Trustee shall promptly give notice
(in such form as shall be appropriate under the circumstances) to the
Certificate Majority requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificate Majority, the Owner Trustee
shall not be liable on account of such action to any Person. If the Owner
Trustee shall not have received appropriate instruction within ten days of such
notice (or within such shorter period of time as reasonably may be specified in
such notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action, not inconsistent with
this Agreement or the Basic Documents or as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any Person
for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Certificate
Majority requesting instruction and, to the extent that the Owner Trustee acts
or refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
Section 6.4. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT
OR IN INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 6.3; and no implied duties or obligations
shall be read into this Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Commission filing for the Trust or to
record this Agreement or any Basic Document. The Owner Trustee nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any Liens on any part
18
of the Owner Trust Estate that result from actions by, or claims against, the
Owner Trustee (solely in its individual capacity) and that are not related to
the ownership or the administration of the Owner Trust Estate.
Section 6.5. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents
or any Related Document and (iii) in accordance with any document or instruction
delivered to the Owner Trustee pursuant to Section 6.3.
Section 6.6. RESTRICTIONS. The Owner Trustee shall not take
any action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation or a publicly traded
partnership for Federal income tax purposes. The Certificateholders shall not
direct the Owner Trustee to take action that would violate the provisions of
this Section.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.1. ACCEPTANCE OF TRUST AND DUTIES. The Owner Trustee
accepts the trust hereby created and agrees to perform its duties hereunder with
respect to such trust but only upon the terms of this Agreement. The Owner
Trustee and the Certificate Paying Agent also agree to disburse all monies
actually received by it constituting part of the Owner Trust Estate upon the
terms of this Agreement or the Basic Documents. The Owner Trustee shall not be
answerable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct, bad faith or
negligence, (ii) in the case of the inaccuracy of any representation or warranty
contained in Section 7.3 expressly made by the Owner Trustee in its individual
capacity, (iii) for liabilities arising from the failure of the Owner Trustee to
perform obligations expressly undertaken by it in the last sentence of Section
6.4 hereof, (iv) for any investments issued by the Owner Trustee or any branch
or affiliate thereof in its commercial capacity or (v) for taxes, fees or other
charges on, based on or measured by, any fees, commissions or compensation
received by the Owner Trustee. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of
judgment made by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions of
the Certificate Majority, the Depositor, the Master Servicer or any
Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial
19
liability in the performance of any of its rights or powers hereunder or under
any Basic Document if the Owner Trustee shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Basic Documents or any
Related Document, including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for or in
respect of the validity or sufficiency of the Basic Documents or any Related
Document, other than the certificate of authentication on the Certificates, and
the Owner Trustee shall in no event assume or incur any liability, duty or
obligation to the Depositor, any Support Provider, the Indenture Trustee, the
Certificate Paying Agent, any Noteholder or to any Certificateholder, other than
as expressly provided for herein or in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Depositor, any Support Provider, the Indenture Trustee or the
Master Servicer under any of the Basic Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform the obligations under
this Agreement or the Basic Documents that are required to be performed by the
Depositor or the Certificate Paying Agent under this Agreement, by the Indenture
Trustee under the Indenture, the Series Supplement or any Related Document or
the Master Servicer under the Master Sale and Servicing Agreement or the Series
Supplement; and
(g) the Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Basic Document at the request, order or
direction of the Certificate Majority or any of the Certificateholders, unless
such Certificate Majority or Certificateholders have offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its negligence, bad faith
or willful misconduct in the performance of any such act.
Section 7.2. FURNISHING OF DOCUMENTS. The Owner Trustee shall
furnish to the Certificateholders promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee or the Delaware Trustee under the Basic Documents.
Section 7.3. REPRESENTATIONS AND WARRANTIES. The Owner Trustee
hereby represents and warrants, in its individual capacity, to the Depositor,
the Holders
20
and any Support Provider (which shall have relied on such representations and
warranties in issuing any policy relating to Series Support), that:
(a) It is a national banking association, duly organized and
validly existing under the laws of the United States. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement.
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any Federal or Delaware state law, governmental rule or regulation governing the
banking or trust powers of it or any judgment or order binding on it, or
constitute any default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound.
(d) This Agreement constitutes the legal, valid and binding
obligation of the Owner Trustee, enforceable against it in accordance with its
terms except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
Section 7.4. RELIANCE; ADVICE OF COUNSEL. (a) The Owner
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer, secretary or other authorized officers of the relevant party,
as to such fact or matter, and such certificate shall constitute full protection
to the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or the
Basic Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
21
counsel, accountants or other such persons and according to such opinion not
contrary to this Agreement or any Basic Document.
Section 7.5. NOT ACTING IN INDIVIDUAL CAPACITY. Except as
provided in this Article VII, in accepting the trusts hereby created the Owner
Trustee acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.
Section 7.6. OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES OR
RECEIVABLES. The recitals contained herein and in certificated Certificates
(other than the signature and countersignature of the Owner Trustee on such
Certificates) shall be taken as the statements of the Depositor and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of this Agreement, of
any Basic Document or of the Certificates (other than the signature and
countersignature of the Owner Trustee on certificated Certificates) or the
Notes, or of any Receivable or related documents. The Owner Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Receivable, or the perfection and priority of
any security interest created by any Receivable in any Financed Vehicle or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Owner Trust Estate or its ability to generate the payments to
be distributed to Certificateholders under this Agreement or the Noteholders
under the Indenture, including, without limitation: the existence, condition and
ownership of any Financed Vehicle; the existence and enforceability of any
insurance thereon; the existence and contents of any Receivable on any computer
or other record thereof; the validity of the assignment of any Receivable to the
Trust or of any intervening assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance by the Depositor,
the Master Servicer or any other Person with any warranty or representation made
under any Basic Document or in any related document or the accuracy of any such
warranty or representation or any action of the Indenture Trustee or the Master
Servicer or any subservicer taken in the name of the Owner Trustee.
Section 7.7. OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with the Depositor, the Indenture
Trustee and the Master Servicer in banking transactions with the same rights as
it would have if it were not Owner Trustee.
Section 7.8. PAYMENTS FROM OWNER TRUST ESTATE All payments to
be made by the Owner Trustee or any Certificate Paying Agent under this
Agreement or any of the Basic Documents shall be made only from the income and
proceeds of the Owner Trust Estate and only to the extent that the Owner Trustee
shall have received income or proceeds from the Owner Trust Estate to make such
payments in accordance with the terms hereof. The Owner Trustee, or any
successor thereto, in its individual capacity, shall not be liable for any
amounts payable under this Agreement or any of the Basic Documents.
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Section 7.9. DOING BUSINESS IN OTHER JURISDICTIONS.
Notwithstanding anything contained herein to the contrary, the Owner Trustee (in
its individual and trustee capacities) shall not be required to take any action
in any jurisdiction other than in the State of Delaware if the taking of such
action will, even after the appointment of a co-trustee or separate trustee in
accordance with Section 10.5 hereof, (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration with
or the taking of any other action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or other governmental charge under the laws of the State
of Delaware becoming payable by the Owner Trustee (in its individual capacity);
or (iii) subject the Owner Trustee (in its individual capacity) to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes of
action arising from acts unrelated to the consummation of the transactions by
the Owner Trustee (in its individual and trustee capacities) contemplated
hereby.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE AND DELAWARE TRUSTEE
Section 8.1. OWNER TRUSTEE'S AND DELAWARE TRUSTEE'S FEES AND
EXPENSES. The Owner Trustee and the Delaware Trustee shall receive as
compensation for their respective services hereunder such fees as have been
separately agreed upon before the date hereof between Household and the Owner
Trustee and the Delaware Trustee, respectively, and each of the Owner Trustee
and the Delaware Trustee shall be entitled to be reimbursed by the Depositor for
its other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and counsel
as the Owner Trustee or the Delaware Trustee, as the case may be, may employ in
connection with the exercise and performance of its respective rights and duties
hereunder or under the Basic Documents.
Section 8.2. INDEMNIFICATION. The Depositor shall be liable as
primary obligor for, and shall indemnify the Owner Trustee and Delaware Trustee
(in their respective individual and trustee capacities) and their respective
officers, directors, successors, assigns, agents and servants (collectively, the
"Indemnified Parties") from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever (collectively, "Expenses") which may at any
time be imposed on, incurred by, or asserted against the Owner Trustee or the
Delaware Trustee (in their trust or individual capacities) or any Indemnified
Party in any way relating to or arising out of this Agreement or the Basic
Documents, the Owner Trust Estate, the administration of the Owner Trust Estate
or the action or inaction of the Owner Trustee or the Delaware Trustee
hereunder, except only that the Depositor shall not be liable for or required to
indemnify the Owner Trustee or the Delaware Trustee from and against Expenses
arising or resulting from any of the matters described in the third sentence of
Section 7.1 with respect to the Owner Trustee and Section 10A.2(c) with respect
to the Delaware Trustee. The indemnities contained in this Section 8.2 and the
rights under Section 8.1 shall survive the resignation or termination of the
Owner Trustee or the Delaware Trustee or the termination of this Agreement. In
any
23
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section, the Owner Trustee's and Delaware Trustee's choice of
legal counsel shall be subject to the approval of the Depositor which approval
shall not be unreasonably withheld.
Section 8.3. PAYMENTS TO THE OWNER TRUSTEE AND DELAWARE
TRUSTEE. Any amounts paid to the Owner Trustee or the Delaware Trustee, as
applicable, in their respective trustee capacities pursuant to this Article VIII
shall be deemed not to be a part of the Owner Trust Estate immediately after
such payment and any amounts so paid to the Owner Trustee or the Delaware
Trustee, as applicable, in its individual capacity shall not be so paid out of
the Owner Trust Estate but shall be the property of the Owner Trustee in its
individual capacity or the Delaware Trustee in its individual capacity, as
applicable.
Section 8.4. NON-RECOURSE OBLIGATIONS. Notwithstanding
anything in this Agreement or any Basic Document, (i) the Owner Trustee agrees
in its individual capacity and in its capacity as Owner Trustee for the Trust
that all obligations of the Trust to the Owner Trustee individually or as Owner
Trustee for the Trust shall be recourse to the Owner Trust Estate only and
specifically shall not be recourse to the assets of any Certificateholder and
(ii) the Delaware Trustee agrees in its individual capacity and in its capacity
as Delaware Trustee for the Trust that all obligations of the Trust to the
Delaware Trustee individually or as Delaware Trustee for the Trust shall be
recourse to the Owner Trust Estate only and specifically shall not be recourse
to the assets of any Certificateholder.
ARTICLE IX
TERMINATION OF AGREEMENT
Section 9.1. TERMINATION OF AGREEMENT. (a) This Agreement
shall terminate and the Trust shall wind up, dissolve and be of no further force
or effect upon the latest to occur of (i) the maturity or other liquidation of
the last Receivable (including the optional purchase by the Depositor or the
Master Servicer of the corpus of the Trust as described in Section 11.1 of the
Master Sale and Servicing Agreement) and the subsequent distribution of amounts
in respect of such Receivables as provided in the Basic Documents and, with
respect to amounts released from the Lien of the Indenture, distribution thereof
to the Certificateholders, or (ii) the payment to Noteholders and
Certificateholders of all amounts required to be paid to them pursuant to the
Indenture and this Agreement, including, with respect to amounts released from
the Lien of the Indenture, distribution thereof to the Certificateholders, and
the payment to any Support Provider of all amounts payable or reimbursable to it
pursuant to the Series Supplement; PROVIDED, HOWEVER, that the rights to
indemnification under Section 8.2 and the rights under Section 8.1 shall survive
the termination of the Trust. The Master Servicer shall promptly notify the
Owner Trustee of any prospective termination pursuant to this Section 9.1. The
bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part
24
of the Trust or Owner Trust Estate nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in clause (a), neither the Depositor
nor any other Certificateholder shall be entitled to revoke or terminate the
Trust.
(c) If any Certificates are in certificated form, notice of
any termination of a Series Trust Estate, specifying the Distribution Date upon
which the Certificateholders of such Series shall surrender their Certificates
to the Certificate Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders of such Series mailed within five Business Days of receipt of
notice of such termination given pursuant to Section 9.1(a) hereof, stating (i)
the Distribution Date upon or with respect to which final payment of the
Certificates of such Series shall be made upon presentation and surrender of the
Certificates of such Series at the office of the Certificate Paying Agent
therein designated, (ii) the amount of any such final payment, (iii) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificates of
such Series at the office of the Certificate Paying Agent therein specified and
(iv) interest will cease to accrue on the Certificates of such Series. The Owner
Trustee shall give such notice to the Certificate Registrar (if other than the
Owner Trustee) and the Certificate Paying Agent at the time such notice is given
to Certificateholders. Upon presentation and surrender of the Certificates of
such Series, the Certificate Paying Agent shall cause to be distributed to
Certificateholders of such Series amounts distributable pursuant to the Series
Supplement.
(d) If any Certificates are in certificated form, in the event
that all of the Certificateholders holding certificated Certificates of such
Series shall not surrender their Certificates for cancellation within six months
after the date specified in the above-mentioned written notice, the Certificate
Paying Agent shall give a second written notice to the remaining
Certificateholders holding certificated Certificates of such Series to surrender
their Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the certificated
Certificates of such Series shall not have been surrendered for cancellation,
the Certificate Paying Agent may take appropriate steps, or may appoint an agent
to take appropriate steps, to contact the remaining Certificateholders holding
certificated Certificates concerning surrender of their Certificates, and the
cost thereof shall be paid out of the funds and other Series Trust Estate assets
that shall remain subject to this Agreement. Any funds remaining in the Trust
after exhaustion of such remedies shall be distributed, subject to applicable
escheat laws, by the Certificate Paying Agent to the Depositor and Holders shall
look solely to the Depositor for payment.
(e) Any funds remaining in the Trust after funds for final
distribution have been distributed or set aside for distribution shall be
distributed by the Certificate Paying Agent to the Depositor.
(f) Upon the winding up of the Trust and its dissolution, the
Owner Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of
25
cancellation with the Secretary of State in accordance with the provisions of
Section 3810 of the Business Trust Statute.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND DELAWARE TRUSTEES ADDITIONAL OWNER TRUSTEES
Section 10.1. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE AND
DELAWARE TRUSTEE. The Delaware Trustee shall at all times be a corporation or
national banking association satisfying the provisions of Section 3807(a) of the
Business Trust Statute. The Owner Trustee shall at all times be a corporation or
national banking association (i) authorized to exercise corporate trust powers;
(ii) having a combined capital and surplus of at least $50,000,000 and subject
to supervision or examination by Federal or State authorities; (iii) having (or
having a parent which has) a rating of at least Baa3 by Moody's or A-1 by
Standard & Poors; and (iv) acceptable to the Certificateholders. If such
corporation shall publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Owner Trustee shall resign immediately in the manner and with
the effect specified in Section 10.2.
Section 10.2. RESIGNATION OR REMOVAL OF OWNER TRUSTEE OR
DELAWARE TRUSTEE. The Owner Trustee or the Delaware Trustee may at any time
resign and be discharged from the trusts hereby created by giving written notice
thereof to the Depositor (or in the event that the Depositor is not the sole
Certificateholder, the Certificate Majority), any Support Provider and the
Master Servicer. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor Owner Trustee or Delaware Trustee, as applicable,
in each case, meeting the qualifications set forth in Section 10.1 herein, by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee or Delaware Trustee and one copy to the
successor Owner Trustee or Delaware Trustee, provided that the Depositor shall
have received written confirmation from each of the Rating Agencies that the
proposed appointment will not result in an increased capital charge to any
Support Provider by either of the Rating Agencies. If no successor Owner Trustee
or Delaware Trustee, as applicable, shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee or Delaware Trustee, as applicable, or
any Support Provider may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee or Delaware Trustee.
If at any time the Owner Trustee or the Delaware Trustee shall
cease to be eligible in accordance with the provisions of Section 10.1 and shall
fail to resign after written request therefor by the Depositor, or if at any
time the Owner Trustee or the Delaware Trustee shall be legally unable to act,
or shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee
or the Delaware Trustee or of its respective property shall be appointed, or any
public officer shall take charge or control of the
26
Owner Trustee or the Delaware Trustee or of its respective property or affairs
for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Owner Trustee or the Delaware Trustee, as applicable.
If the Depositor shall remove the Owner Trustee or the Delaware Trustee under
the authority of the immediately preceding sentence, the Depositor shall
promptly appoint a successor Owner Trustee or Delaware Trustee, as applicable,
meeting the qualifications set forth in Section 10.1 herein, by written
instrument, in triplicate, one copy of which instrument shall be delivered to
the outgoing Owner Trustee or Delaware Trustee so removed, one copy to any
Support Provider and one copy to the successor Owner Trustee or Delaware
Trustee.
Any resignation or removal of the Owner Trustee or the
Delaware Trustee and appointment of a successor Owner Trustee or Delaware
Trustee pursuant to any of the provisions of this Section 10.2 shall not become
effective until acceptance of appointment by the successor Owner Trustee or
Delaware Trustee pursuant to Section 10.3 and payment of all fees and expenses
owed to the outgoing Owner Trustee or Delaware Trustee, as applicable. The
Depositor shall provide notice of such resignation or removal of the Owner
Trustee or the Delaware Trustee, as applicable, to each of the Rating Agencies.
Section 10.3. SUCCESSOR OWNER TRUSTEE OR DELAWARE TRUSTEE. Any
successor Owner Trustee or Delaware Trustee appointed pursuant to Section 10.2
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
any Support Provider and to its predecessor Owner Trustee or Delaware Trustee,
as applicable, an instrument accepting such appointment under this Agreement,
and thereupon the resignation or removal of its predecessor shall become
effective and the successor Owner Trustee or Delaware Trustee, as applicable,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as Owner Trustee or Delaware
Trustee, as applicable. The predecessor Owner Trustee or Delaware Trustee, as
applicable, shall upon payment of its fees and expenses deliver to the successor
Owner Trustee or Delaware Trustee, as applicable, all documents and statements
and monies held by it under this Agreement; and the Depositor and the
predecessor Owner Trustee or Delaware Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee or Delaware
Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee or Delaware Trustee shall accept
appointment as provided in this Section 10.3 unless at the time of such
acceptance such successor Owner Trustee or Delaware Trustee, as applicable,
shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Master Servicer shall mail notice of the successor
of such Owner Trustee or Delaware Trustee, as applicable, to all
Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies. If the Master Servicer shall fail to mail such notice within 10 days
after acceptance of appointment by the successor Owner Trustee or Delaware
Trustee, as applicable, the successor Owner Trustee or Delaware
27
Trustee, as applicable, shall cause such notice to be mailed at the expense of
the Master Servicer.
Any successor Delaware Trustee appointed pursuant to this
Section 10.3 shall promptly file an amendment to the Certificate of Trust with
the Secretary of State identifying the name and principal place of business of
such successor Delaware Trustee in the State of Delaware.
Section 10.4. MERGER OR CONSOLIDATION OF OWNER TRUSTEE OR
DELAWARE TRUSTEE. Any corporation into which the Owner Trustee or the Delaware
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Owner Trustee or the Delaware Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee or the Delaware Trustee, shall be the successor of the Owner
Trustee or the Delaware Trustee hereunder, provided such corporation shall be
eligible pursuant to Section 10.1, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided further that the Owner Trustee
or the Delaware Trustee, as applicable, shall mail notice of such merger or
consolidation to the Rating Agencies, the Depositor and the Master Servicer.
Section 10.5. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Master Servicer and the Owner Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee and any Support Provider to act as co-trustee,
jointly with the Owner Trustee, or separate trustee or separate trustees, of all
or any part of the Owner Trust Estate, and to vest in such Person, in such
capacity, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section, such powers, duties, obligations, rights and
trusts as the Master Servicer and the Owner Trustee may consider necessary or
desirable. If the Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, the Owner Trustee,
subject to the approval of the Certificate Majority (which approval shall not be
unreasonably withheld), shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to Section 10.1 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent
28
that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Master Servicer and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Master Servicer.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE X-A
AUTHORITY AND DUTIES OF DELAWARE TRUSTEE
Section 10A.1 ACCEPTANCE OF TRUST. The Delaware Trustee
accepts the trust hereby created and agrees to perform its duties hereunder with
respect to such trust but only upon the terms of this Agreement.
Section 10A.2 DUTIES OF DELAWARE TRUSTEE.
(a) It is understood and agreed that the duties and
responsibilities 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 and
delivery of all documents, and the maintenance of all records, necessary to form
and maintain the existence of the Trust under the Business Trust Statute.
29
(b) Except as otherwise expressly required by Section 10A.2(a)
above, the Delaware Trustee shall not have any duty or liability with respect to
the administration of the Trust, the investment of the Owner Trust Estate or the
Series Trust Estate or the payment of dividends or other distributions of income
or principal to the Certificateholder or any of the Trust's beneficiaries.
(c) The Delaware Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct, bad faith or negligence, (ii) in the
case of the inaccuracy of any representation or warranty contained in Section
10A.3 expressly made by the Delaware Trustee in its individual capacity, (iii)
for any investments issued by the Delaware Trustee or any branch or affiliate
thereof in its commercial capacity or (iv) for taxes, fees or other charges on,
based on or measured by, any fees, commissions or compensation received by the
Delaware Trustee. In particular, but not by way of limitation (and subject to
the exceptions set forth in the preceding sentence):
(A) the Delaware Trustee shall not be liable for any
error of judgment made by a Responsible Officer of the
Delaware Trustee;
(B) the Delaware Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
accordance with the instructions of the Certificate Majority,
the Depositor, the Master Servicer or any Certificateholder;
(C) no provision of this Agreement or any Basic
Document shall require the Delaware Trustee to expend or risk
funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder or under
any Basic Document if the Delaware Trustee shall have
reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(D) under no circumstances shall the Delaware Trustee
be liable for indebtedness evidenced by or arising under any
of the Basic Documents or any Related Document, including the
principal of and interest on the Notes;
(E) the Delaware Trustee shall not be responsible for
or in respect of the validity or sufficiency of this Agreement
or for the due execution hereof by the Depositor or for the
form, character, genuineness, sufficiency, value or validity
of any of the Owner Trust Estate or for or in respect of the
validity or sufficiency of the Basic Documents or any Related
Document, and the Delaware Trustee shall in no event assume or
incur any liability, duty or obligation to the Depositor, any
Support Provider, the Indenture Trustee, the Certificate
Paying Agent, any Noteholder or to any Certificateholder,
other than as expressly provided for herein or in the Basic
Documents;
30
(F) the Delaware Trustee shall not be liable for the
default or misconduct of the Depositor, any Support Provider,
the Indenture Trustee or the Master Servicer under any of the
Basic Documents or otherwise and the Delaware Trustee shall
have no obligation or liability to perform the obligations
under this Agreement or the Basic Documents that are required
to be performed by the Depositor or the Certificate Paying
Agent under this Agreement, by the Indenture Trustee under the
Indenture, the Series Supplement or any Related Document or
the Master Servicer under the Master Sale and Servicing
Agreement or the Series Supplement;
(G) the Delaware Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation
under this Agreement or otherwise or in relation to this
Agreement or any Basic Document at the request, order or
direction of the Certificate Majority or any of the
Certificateholders, unless such Certificate Majority or
Certificateholders have offered to the Delaware Trustee
security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Delaware
Trustee therein or thereby. The right of the Delaware Trustee
to perform any discretionary act enumerated in this Agreement
or in any Basic Document shall not be construed as a duty, and
the Delaware Trustee shall not be answerable for other than
its negligence, bad faith or willful misconduct in the
performance of any such act; and
(H) the Delaware Trustee shall be entitled to any
other rights, benefits and protection provided to the Owner
Trustee in this Agreement.
Section 10A.3 REPRESENTATIONS AND WARRANTIES. The Delaware
Trustee hereby represents and warrants, in its individual capacity, to the
Depositor, the Holders and any Support Provider (which shall have relied on such
representations and warranties in issuing any policy related to the Series
Supplement), that:
(a) It is a national banking association, duly organized and \
validly existing under the laws of the United States. It has requisite corporate
power and authority to execute, deliver and perform its obligations under this
Agreement.
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any Federal or Delaware state law, governmental rule or regulation governing the
banking or trust powers of it or any judgment or order binding on it, or
constitute any default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound.
31
(d) This Agreement constitutes the legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance with
its terms except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
(e) It is authorized to exercise trust powers in the State of
Delaware as and to the extent contemplated herein and it has a principal place
of business in the State of Delaware.
Section 10A.4 NOT ACTING IN INDIVIDUAL CAPACITY. Except as
provided in this Article XA, in accepting the trusts hereby created the Delaware
Trustee acts solely as Delaware Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Delaware Trustee by reason
of the transactions contemplated by this Agreement or any Basic Document shall
look only to the Owner Trust Estate for payment or satisfaction thereof.
ARTICLE XI
MISCELLANEOUS
Section 11.1. SUPPLEMENTS AND AMENDMENTS. (a) This Agreement
may be amended from time to time by the parties hereto, by a written instrument
signed by each of them, without the consent of any of the Securityholders;
PROVIDED that an Opinion of Counsel for the Depositor (which Opinion of Counsel
may, as to factual matters, rely upon Officer's Certificates of the Depositor)
is addressed and delivered to the Owner Trustee and the Delaware Trustee, dated
the date of any such amendment, to the effect that the conditions precedent to
any such amendment have been satisfied and the Depositor shall have delivered to
the Owner Trustee and the Delaware Trustee an Officer's Certificate dated the
date of any such Amendment, stating that the Depositor reasonably believes that
such Amendment will not have a material adverse effect on the Securityholders.
(b) This Agreement may also be amended from time to time with
the consent of the Noteholders, evidencing not less than a majority of the
Outstanding Amount of the Notes, and the consent of the Certificateholders,
representing at least a 50% Percentage Interest, for which the Seller has not
delivered an Officer's Certificate stating that there is no material adverse
effect, for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Securityholders; PROVIDED, HOWEVER, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing of,
payments received that are required to be distributed on any Security without
the consent of the related Securityholder, or (ii) reduce the aforesaid
percentage of Securities the Holder of which are required to consent to any such
amendment, without the consent of the Holders of all such Certificates then
outstanding or cause any material adverse tax consequences to any
Certificateholders or Noteholders.
32
Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and each
of the Rating Agencies.
It shall not be necessary for the consent of
Certificateholders, the Noteholders or the Indenture Trustee pursuant to this
Section to approve the particular form of any proposed amendment or consent, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of Certificateholders
provided for in this Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of Trust,
including, without limitation, amendments pursuant this Section and pursuant to
Section 10A.4, the Owner Trustee shall cause the filing of such amendment with
the Secretary of State.
(c) The Owner Trustee and Delaware Trustee shall not be
required to enter into any amendment to this Agreement which adversely affects
their respective rights, duties or immunities under this Agreement.
Section 11.2. NO LEGAL TITLE TO OWNER TRUST ESTATE IN
CERTIFICATEHOLDERS. The Certificateholders shall not have legal title to any
part of the Series Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders to and in
their ownership interest in the Series Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Series
Trust Estate.
Section 11.3. LIMITATIONS ON RIGHTS OF OTHERS. The provisions
of this Agreement are solely for the benefit of the Owner Trustee, the
Depositor, the Certificateholders, the Master Servicer and, to the extent
expressly provided herein, any Support Provider, the Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 11.4. NOTICES. (a) Unless otherwise expressly
specified or permitted by the terms hereof, all notices shall be in writing and
shall be deemed given upon receipt personally delivered, delivered by overnight
courier or mailed first class mail or certified mail, in each case return
receipt requested, and shall be deemed to have been duly given upon receipt, if
to the Owner Trustee or the Delaware Trustee, addressed to its respective
Corporate Trust Office; if to the Depositor, addressed to
Household Auto
Receivables Corporation, 0000 Xxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000, with a
copy to Household Finance Corporation, 0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxx,
Xxxxxxxx 00000, Attn: Treasurer; if to any Support Provider, at the address of
such Support Provider as set forth in the Series Supplement; or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party.
33
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
Section 11.5. SEVERABILITY. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 11.6. SEPARATE COUNTERPARTS. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 11.7. ASSIGNMENTS; SUPPORT PROVIDER. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. This Agreement shall also inure to
the benefit of any Support Provider for so long as a Support Default shall not
have occurred and be continuing. Without limiting the generality of the
foregoing, all covenants and agreements in this Agreement which confer rights
upon any Support Provider shall be for the benefit of and run directly to any
Support Provider, and any Support Provider shall be entitled to rely on and
enforce such covenants, subject, however, to the limitations on such rights
provided in this Agreement and the Basic Documents. The Support Provider, if
any, may disclaim any of its rights and powers under this Agreement (but not its
duties and obligations under any Support Provider) upon delivery of a written
notice to the Owner Trustee.
Section 11.8. COVENANTS OF THE DEPOSITOR. The Depositor will
not at any time institute against the Trust any bankruptcy proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this Agreement or any of
the Basic Documents.
Section 11.9. NO PETITION. The Owner Trustee (not in its
individual capacity but solely as Owner Trustee) and the Delaware Trustee (not
in its individual capacity but solely as Delaware Trustee), by entering into
this Agreement, each Certificateholder, by accepting a Certificate, and the
Indenture Trustee and each Noteholder by accepting the benefits of this
Agreement, hereby covenants and agrees that they will not at any time institute
against the Depositor, or join in any institution against the Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates, the
Notes, this Agreement, any of the Basic Documents, the Series Supplement or any
Related Documents.
Section 11.10. NO RECOURSE. Each Certificateholder by
accepting a Certificate acknowledges that such Certificateholder's Certificates
represent beneficial
34
interests in the Series Trust Estate only and do not represent interests in or
obligations of the Master Servicer, the Depositor, the Owner Trustee, the
Delaware Trustee, the Indenture Trustee, any Support Provider or any Affiliate
thereof and no recourse may be had against such parties or their assets, except
as may be expressly set forth or contemplated in this Agreement, the
Certificates, the Basic Documents, the Series Supplement or any Related
Documents.
Section 11.11. HEADINGS. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
Section 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 11.13. MASTER SERVICER. The Master Servicer is
authorized to prepare, or cause to be prepared, execute and deliver on behalf of
the Trust all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Trust, the Delaware Trustee or Owner
Trustee to prepare, file or deliver pursuant to the Basic Documents, the Series
Supplement or any Related Documents. Upon written request, the Owner Trustee
shall execute and deliver to the Master Servicer a limited power of attorney
appointing the Master Servicer the Trust's agent and attorney-in-fact to
prepare, or cause to be prepared, execute and deliver all such documents,
reports, filings, instruments, certificates and opinions.
35
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Owner Trustee
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Delaware Trustee
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
HOUSEHOLD AUTO RECEIVABLES
CORPORATION
Depositor
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Assistant
Treasurer
Acknowledged and Agreed:
HOUSEHOLD FINANCE CORPORATION
Master Servicer
By: /s/ X. X. Xxxx, Xx.
-----------------------------------------
Name: X. X. Xxxx, Xx.
Title: Vice President and Treasurer
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity
but solely as Certificate Paying Agent
By: /s/ Xxx Xxxxxx
-----------------------------------------
Name: Xxx Xxxxxx
Title: Assistant Vice President
[Signature Page for Amended and Restated
Trust Agreement]
EXHIBIT A
[FORM OF CERTIFICATE]
NUMBER
HOUSEHOLD AUTOMOTIVE TRUST 2001-3
CERTIFICATE
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH STATE
SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS SUCH RESALE OR TRANSFER (A) IS MADE IN ACCORDANCE WITH SECTION 3.4 OF THE
AMENDED AND RESTATED
TRUST AGREEMENT PERTAINING TO THE HOUSEHOLD AUTOMOTIVE
TRUST 2001-3 (THE "AGREEMENT") AND (B) IS MADE (i) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (ii) IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS, (iii) TO THE SELLER OR (iv) TO A PERSON WHO THE TRANSFEROR
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT THAT IS AWARE THAT THE RESALE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND (C) UPON THE SATISFACTION OF
CERTAIN OTHER REQUIREMENTS SPECIFIED IN THE AGREEMENT. NEITHER THE DEPOSITOR,
THE MASTER SERVICER, THE TRUST NOR THE OWNER TRUSTEE IS OBLIGATED TO REGISTER
THE CERTIFICATES UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES
LAWS.
---------------------------------
CERTIFICATE
evidencing a beneficial ownership interest in the assets of the Trust relating
to the Series Trust Estate, which includes a pool of motor vehicle retail
installment sale contracts sold to the Trust by
Household Auto Receivables
Corporation.
(This Certificate does not represent an interest in or obligation of
Household
Auto Receivables Corporation or any of its Affiliates, except to the extent
described below.)
THIS CERTIFIES THAT
Household Auto Receivables Corporation is
the registered owner of a nonassessable, fully-paid, beneficial ownership
interest representing a 100% Percentage Interest in the assets of Household
Automotive Trust 2001-3 (the "Trust") formed by
Household Auto Receivables
Corporation, a Nevada corporation (the "Depositor") and the Series Trust Estate.
A-1
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
U.S. BANK TRUST NATIONAL ASSOCIATION
not in its individual
capacity but solely as
Owner Trustee
by Authenticating Agent
---------------------------------------------------------
by
----------------------------------------------------------------------------
Household Automotive Trust 2001-3 (the "Trust"), was created
pursuant to a
Trust Agreement, dated as of October 9, 2001 (the "Agreement"),
between the Depositor and U.S. Bank Trust National Association with its
principal place of business in Illinois, as owner trustee (the "Owner Trustee")
and U.S. Bank Trust National Association with its principal place of business in
Delaware, as Delaware Trustee, as amended and restated as of October 9, 2001 and
as supplemented by a Series Supplement dated as of October 9, 2001 (the "Series
Supplement"). A summary of certain of the pertinent provisions of the Agreement
and Series Supplement is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement and the Series Supplement.
This certificate is one of the duly authorized certificates of
Trust of Household Automotive Trust 2001-3 designated as Certificates.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement and the Series Supplement, to which
Agreement the holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound. The property of the Trust consists of
the Series Trust Estate which includes a pool of motor vehicle retail
installment sale contracts (the "Receivables"), all monies due thereunder on or
after specified Cutoff Dates, security interests in the vehicles financed
thereby, certain bank accounts and the proceeds thereof, proceeds from claims on
certain insurance policies and certain other rights under the Agreement and the
Master Sale and Servicing Agreement and each related Transfer Agreement, all
right, to and interest of, the Depositor in and to (i) the Master Receivables
Purchase Agreement dated as of December 1, 1998 and amended and restated as of
March 29, 2001 between Household Automotive Finance Corporation and the
Depositor, as such agreement may be further amended and supplemented from time
to time, (ii) the Master Receivables Purchase Agreement dated as of December 12,
2000 between Household Automotive Finance Corporation and the Depositor, as such
agreement may be amended and supplemented from time to time, (iii) the Master
Receivables Purchase Agreement dated as of March 29, 2001 between Household Bank
and the Depositor, as such agreement may be amended and supplemented from time
to time and (iv) the Master Receivables Purchase Agreement dated as of October
9, 2001 between Household Automotive Finance Corporation and the Depositor, as
such agreement may be amended and supplemented from time to time, and each
Receivables Purchase Agreement Supplement and all proceeds of the foregoing.
A-2
The Notes have been issued pursuant to an Indenture dated as
of October 9, 2001 (the "Indenture"), among the Trust, Household Finance
Corporation, as Master Servicer and Xxxxx Fargo Bank Minnesota, National
Association, as Indenture Trustee and the Series Supplement.
Under the Series Supplement, there will be distributed on the
17th day of each month or, if such 17th day is not a Business Day, the next
Business Day (the "Distribution Date"), commencing on November 19, 2001, to the
Person in whose name this Certificate is registered at the close of business on
the Business Day preceding such Distribution Date (the "Record Date") such
Certificateholder's fractional undivided interest in any amount to be
distributed to Certificateholders on such Distribution Date.
The holder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders as described in the Master Sale
and Servicing Agreement, the Indenture, the Agreement and the Series Supplement,
as applicable.
Distributions on this Certificate will be made as provided in
the Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Owner
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for the purpose
by the Owner Trustee in the Corporate Trust Office.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee, by manual
signature, this Certificate shall not entitle the holder hereof to any benefit
under the Agreement or the Master Sale and Servicing Agreement or be valid for
any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-3
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust
and not in its individual capacity, has caused this Certificate to be duly
executed.
HOUSEHOLD AUTOMOTIVE TRUST
2001-3
By: U.S. BANK TRUST NATIONAL
ASSOCIATION not in its individual capacity
but solely as Owner Trustee
Dated: By:______________________________
By: ____________________________
Name:
Title:
A-4
(Reverse of Certificate)
The Certificates do not represent an obligation of, or an
interest in, the Depositor, the Master Servicer, the Owner Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Agreement, the Indenture, the Basic Documents or any Related Documents. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections with
respect to the Receivables, as more specifically set forth herein and in the
Master Sale and Servicing Agreement. A copy of each of the Master Sale and
Servicing Agreement, the Agreement and the Series Supplement may be examined
during normal business hours at the principal office of the Depositor, and at
such other places, if any, designated by the Depositor, by any Certificateholder
upon written request.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in the Corporate Trust Office, accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
in authorized denominations evidencing the same aggregate interest in the Trust
will be issued to the designated transferee. The initial Certificate Registrar
appointed under the Agreement is the Owner Trustee.
The Certificates are issuable as registered Certificates in
any Percentage Interest not to exceed 100%. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange,
but the Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any agent of
the Owner Trustee or the Certificate Registrar may treat the person in whose
name this Certificate is registered as the owner hereof for all purposes, and
none of the Owner Trustee, the Certificate Registrar nor any such agent shall be
affected by any notice to the contrary.
The Certificates may not be acquired by or for the account of
(a) an employee benefit plan (as defined in Section 3(3) of ERISA) that is
subject to the provisions of Title I of ERISA, (b) a plan (as defined in Section
4975(e) (1) of the Code) that is subject to Section 4975 of the Code or (c) any
entity whose underlying assets include plan assets by reason of such plan's
investment in the entity (each, a "Benefit Plan"). The Certificate Registrar
shall not register the transfer of a Certificate unless the transferee has
delivered to the Owner Trustee a representation letter in form and substance
satisfactory to the Owner Trustee to the effect that the transferee is not, and
is not acquiring the Certificate for the account of, a Benefit Plan.
A-5
The recitals contained herein shall be taken as the statements
of the Depositor or the Master Servicer, as the case may be, and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of this Certificate
or of any Receivable or related document.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee, by manual or
facsimile signature, this Certificate shall not entitle the holder hereof to any
benefit under the Agreement or the Master Sale and Servicing Agreement or be
valid for any purpose.
A-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
____________________ Attorney to transfer said Certificate on the books of the
Certificate Registrar, with full power of substitution in the premises.
Dated:
-----------------------------------------*
Signature Guaranteed:
-----------------------------------------*
________________
* NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Certificate Registrar, which requirements include membership
or participation in STAMP or such other "signature guarantee program" as may be
determined by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
A-7
EXHIBIT B
[FORM OF CERTIFICATE OF TRUST]
CERTIFICATE OF TRUST
OF
HOUSEHOLD AUTOMOTIVE TRUST 2001-3
THIS Certificate of Trust of Household Automotive Trust 2001-3
(the "Trust") is being duly executed and filed on behalf of the Trust by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 DEL. C. Section 3801 ET SEQ.) (the "Act").
1. NAME. The name of the business trust formed by this
Certificate of Trust is Household Automotive Trust 2001-3.
2. DELAWARE TRUSTEE. The name and business address of
the trustee of the Trust in the State of Delaware are U.S. Bank Trust National
Association, 000 Xxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000.
3. EFFECTIVE DATE. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
U.S. BANK TRUST NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By:_________________________________
Name:
Title:
U.S. BANK TRUST NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Delaware Trustee
By:_________________________________
Name:
Title:
B-1
