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HONDA TITLING C L.P.,
and
HONDA TITLING D L.P.,
as Transferors,
U.S. BANK NATIONAL ASSOCIATION,
as Owner Trustee,
WILMINGTON TRUST COMPANY,
as Delaware Owner Trustee,
and
THE BANK OF NEW YORK,
as Indenture Trustee
HONDA AUTO LEASE TRUST 1999-A
AUTO LEASE ASSET-BACKED NOTES AND CERTIFICATES
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FORM OF
1999-A SECURITIZATION TRUST AGREEMENT
Dated as of [ ]
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TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS
Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.02 Interpretive Provisions . . . . . . . . . . . . . . . . 4
ARTICLE TWO
CREATION OF TRUST; ESTABLISHMENT OF SUBI SECURITIES ACCOUNT
Section 2.01 Creation of Trust; Establishment of SUBI
Securities Account. . . . . . . . . . . . . . . . . . . 5
Section 2.02 Office. . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.03 Appointment of Owner Trustees . . . . . . . . . . . . . 5
Section 2.04 Conveyance of the 1999-A SUBI Certificates. . . . . . . 6
Section 2.05 Purposes and Powers . . . . . . . . . . . . . . . . . . 7
Section 2.06 Acceptance by the 1999-A Owner Trustee. . . . . . . . . 8
Section 2.07 Title to Trust Property . . . . . . . . . . . . . . . . 8
Section 2.08 Situs of Trust. . . . . . . . . . . . . . . . . . . . . 8
Section 2.09 Tax Reporting . . . . . . . . . . . . . . . . . . . . . 8
Section 2.10 Transfer of Collections . . . . . . . . . . . . . . . . 9
ARTICLE THREE
ACCOUNTS; DISTRIBUTIONS; THE RESERVE FUND; STATEMENTS TO
SECURITYHOLDERS
Section 3.01 1999-A Note Distribution Account; 1999-A Certificate
Distribution Account. . . . . . . . . . . . . . . . . . 9
Section 3.02 Collections . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.03 Distributions . . . . . . . . . . . . . . . . . . . . . 10
Section 3.04 The Reserve Fund. . . . . . . . . . . . . . . . . . . . 16
Section 3.05 Statements to Securityholders . . . . . . . . . . . . . 22
ARTICLE FOUR
CERTIFICATES
Section 4.01 The Certificates. . . . . . . . . . . . . . . . . . . . 25
Section 4.02 Authentication and Delivery of Certificates . . . . . . 25
Section 4.03 No Transfer of the Certificates.. . . . . . . . . . . . 25
Section 4.04 Mutilated, Destroyed, Lost or Stolen Certificates . . . 25
Section 4.05 Persons Deemed Owners . . . . . . . . . . . . . . . . . 26
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE FIVE
THE TRANSFERORS
Section 5.01 Representations of the Transferors. . . . . . . . . . . 26
Section 5.04 Limitation on Liability of the Transferors and Others . 30
Section 5.05 The Transferors May Own Notes . . . . . . . . . . . . . 30
Section 5.06 No Transfer . . . . . . . . . . . . . . . . . . . . . . 30
Section 5.07 Tax Matters Partner . . . . . . . . . . . . . . . . . . 30
ARTICLE SIX
THE 1999-A OWNER TRUSTEE
Section 6.01 Duties of 1999-A Owner Trustee. . . . . . . . . . . . . 31
Section 6.02 Certain Matters Affecting the 1999-A Owner Trustee. . . 32
Section 6.03 1999-A Owner Trustee Not Liable for Notes,
Certificates or Leases. . . . . . . . . . . . . . . . . 33
Section 6.04 1999-A Owner Trustee May Own Securities . . . . . . . . 34
Section 6.05 1999-A Owner Trustee's Fees and Expenses. . . . . . . . 34
Section 6.06 Eligibility Requirements for 1999-A Owner Trustee . . . 34
Section 6.07 Resignation or Removal of 1999-A Owner Trustee. . . . . 35
Section 6.08 Successor 1999-A Owner Trustee. . . . . . . . . . . . . 35
Section 6.09 Merger or Consolidation of 1999-A Owner Trustee . . . . 36
Section 6.10 Appointment of Co-Trustee or Separate
1999-A Owner Trustee. . . . . . . . . . . . . . . . . . 36
Section 6.11 Representations and Warranties of 1999-A
Owner Trustee . . . . . . . . . . . . . . . . . . . . . 37
Section 6.12 Tax Returns . . . . . . . . . . . . . . . . . . . . . . 38
Section 6.13 1999-A Owner Trustee May Enforce Claims Without
Possession of the Certificates. . . . . . . . . . . . . 38
Section 6.14 Suit for Enforcement. . . . . . . . . . . . . . . . . . 38
Section 6.15 Rights of 1999-A Indenture Trustee to
Direct 1999-A Owner Trustee . . . . . . . . . . . . . . 39
Section 6.16 No Petition . . . . . . . . . . . . . . . . . . . . . . 39
Section 6.17 Authority to Execute. . . . . . . . . . . . . . . . . . 39
Section 6.18 Management of the 1999-A Securitization Trust . . . . . 40
Section 6.19 Negative Pledge . . . . . . . . . . . . . . . . . . . . 40
ARTICLE SEVEN
TERMINATION
Section 7.01 Termination of the 1999-A Securitization Trust. . . . . 40
Section 7.02 Optional Purchase of 1999-A SUBI Certificates . . . . . 40
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE EIGHT
TAX MATTERS
Section 8.01 Tax and Accounting Characterization . . . . . . . . . . 41
ARTICLE NINE
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment . . . . . . . . . . . . . . . . . . . . . . . 42
Section 9.02 Protection of Title to 1999-A Securitization Trust. . . 43
Section 9.03 Limitations on Rights of Others . . . . . . . . . . . . 44
Section 9.04 Notices . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 9.05 Severability of Provisions. . . . . . . . . . . . . . . 45
Section 9.06 Counterparts. . . . . . . . . . . . . . . . . . . . . . 45
Section 9.07 Successors and Assigns. . . . . . . . . . . . . . . . . 45
Section 9.08 No Recourse . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.09 Headings. . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.10 Governing Law . . . . . . . . . . . . . . . . . . . . . 45
Section 9.11 Certificates Nonassessable and Fully Paid . . . . . . . 46
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EXHIBITS
Exhibit A - Form of Certificate . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Form of Certificate of Trust. . . . . . . . . . . . . . B-1
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FORM OF 1999-A SECURITIZATION TRUST AGREEMENT
This 1999-A SECURITIZATION TRUST AGREEMENT, dated as of [ ] (as
it may be amended, supplemented or restated from time to time, the "1999-A
Securitization Trust Agreement"), is made with respect to the formation of
the HONDA AUTO LEASE TRUST 1999-A (the "1999-A Securitization Trust"), by and
among HONDA TITLING C L.P., a Delaware limited partnership ("HTC LP"), HONDA
TITLING D L.P., a Delaware limited partnership ("HTD LP" and, together with
HTC LP, the "Transferors"), U.S. BANK NATIONAL ASSOCIATION, a national
banking association ("U.S. Bank"), as owner trustee (in such capacity, the
"1999-A Owner Trustee"), WILMINGTON TRUST COMPANY, a Delaware corporation, as
Delaware owner trustee (in such capacity, the "Delaware Owner Trustee"), and
THE BANK OF NEW YORK, a national banking association, as indenture trustee
(in such capacity, the "1999-A Indenture Trustee").
RECITALS
A. HTA LP and HTB LP, as Grantors and UTI Beneficiaries, the
Servicer, the Origination Trustee, the Delaware Trustee, and, for certain
limited purposes set forth therein, U.S. Bank, as Trust Agent, have entered into
that Second Amended and Restated Trust and Servicing Agreement, dated as of
April 1, 1998, amending and restating that certain Trust and Servicing
Agreement, dated as of September 1, 1997, among the same parties, amending and
restating that certain Trust Agreement, dated July 17, 1997, among the same
parties (as supplemented, amended or restated from time to time, the
"Origination Trust Agreement"), pursuant to which the Honda Lease Trust (the
"Origination Trust") was formed for the purpose of, among other things, taking
assignments and conveyances of, and holding in trust and dealing in, various
Trust Assets. Capitalized terms used and not defined in these Recitals have the
meanings given in the Agreement of Definitions described in Section 1.01 hereof.
B. The Origination Trust Agreement contemplates that certain of the
Trust Assets, other than those previously identified on the Origination Trust's
books and records as Other SUBI Assets and allocated to a separate SUBI
Sub-Trust, may be allocated to a SUBI Sub-Trust and thenceforth constitute SUBI
Assets within such SUBI Sub-Trust, and that in connection with any such
allocation the Origination Trustee shall create a SUBI at the direction of the
UTI Beneficiaries and shall issue to, or to the order of, the UTI Beneficiaries
one or more SUBI Certificates evidencing such SUBI, and the related SUBI
Beneficiaries and their permitted assignees generally will be entitled to the
net cash flows arising from, but only from, such SUBI Assets.
C. Concurrently herewith, HTA LP and HTB LP, as Grantors and UTI
Beneficiaries, HTC LP and HTD LP, as Transferors, the Servicer, the Origination
Trustee, the Delaware Trustee and U.S. Bank, as Trust Agent and, for certain
limited purposes set forth therein, as 1999-A Owner Trustee, are entering into
that certain 1999-A SUBI Supplement to Second Amended and Restated Trust and
Servicing Agreement dated as of [ ] (as amended, supplemented or
restated from time to time, the "1999-A SUBI Supplement"), pursuant to which the
parties thereto have agreed to supplement the terms of the Origination Trust
Agreement to cause the Origination Trustee to (i) identify a portfolio of Trust
Assets (the "1999-A SUBI Assets") to be designated to a SUBI Portfolio (the
"1999-A SUBI Portfolio"), (ii)
allocate such 1999-A SUBI Assets to a SUBI Sub-Trust (the "1999-A SUBI
Sub-Trust"), (iii) create the related 1999-A SUBI and (iv) create and issue to
or to the order of (a) HTA LP one certificate representing a 98.01% interest in
the 1999-A SUBI (the "HTA LP/HTC LP 1999-A SUBI Certificate") and one
certificate representing a 0.99% interest in the 1999-A SUBI (the "HTA LP/HTD LP
1999-A SUBI Certificate"), and (b) HTB LP one certificate representing a 0.99%
interest in the 1999-A SUBI (the "HTB LP/HTC LP 1999-A SUBI Certificate") and
one certificate representing a 0.01% interest in the 1999-A SUBI (the "HTB
LP/HTD LP 1999-A SUBI Certificate" and, together with the HTA LP/HTC LP 1999-A
SUBI Certificate, the HTA LP/HTD LP 1999-A SUBI Certificate and the HTB LP/HTD
LP 1999-A SUBI Certificate, the "HTA LP/HTB LP 1999-A SUBI Certificates").
D. Pursuant to the 1999-A SUBI Supplement, the parties hereto and
thereto desire that, concurrently herewith, U.S. Bank, as securities
intermediary (as defined in Section 8-102 of the UCC) (in such capacity, the
"1999-A SUBI Securities Intermediary"), establish two securities accounts (as
defined in Section 8-501 of the UCC) as follows: (i) a securities account in
the name of and for the benefit of HTA LP (the "HTA LP 1999-A SUBI Securities
Account") pursuant to that certain HTA LP 1999-A SUBI Securities Account
Control Agreement, dated as of [ ], between HTA LP and the 1999-A
SUBI Securities Intermediary (the "HTA LP 1999-A SUBI Securities Account
Control Agreement"), into which the HTA LP/HTC LP 1999-A SUBI Certificate and
the HTA LP/HTD LP 1999-A SUBI Certificate will be transferred and held until
such time as HTA LP directs the 1999-A SUBI Securities Intermediary to debit
the HTA LP 1999-A SUBI Securities Account to reflect the transfer of the HTA
LP/HTC LP 1999-A SUBI Certificate and the HTA LP/HTD LP 1999-A SUBI
Certificate pursuant to a Securitization and (ii) a securities account in the
name of and for the benefit of HTB LP (the "HTB LP 1999-A SUBI Securities
Account") pursuant to that certain HTB LP 1999-A SUBI Securities Account
Control Agreement, dated as of [ ] between HTB LP and the 1999-A SUBI
Securities Intermediary (the "HTB LP 1999-A SUBI Securities Account Control
Agreement") into which the HTB LP/HTC LP 1999-A SUBI Certificate and the HTB
LP/HTD LP 1999-A SUBI Certificate will be transferred and held until such
time as HTB LP directs the SUBI Securities Intermediary to debit the HTB LP
1999-A SUBI Securities Account to reflect the transfer of the HTB LP/HTC LP
1999-A SUBI Certificate and the HTB LP/HTD LP 1999-A SUBI Certificate
pursuant to a Securitization.
E. Concurrently herewith, the Origination Trustee, on behalf of the
Origination Trust, and the Servicer are entering into the 1999-A Servicing
Supplement (as amended, supplemented or restated from time to time, the "1999-A
Servicing Supplement") pursuant to which, among other things, the terms of the
Origination Trust Agreement and the Servicing Agreement, dated April 1, 1998, by
and among the UTI Beneficiaries, the Servicer and the Origination Trust will be
supplemented insofar as they apply solely to the servicing of the 1999-A SUBI
Sub-Trust created hereby to provide for further specific servicing obligations
that will benefit the SUBI Beneficiaries with respect to the 1999-A SUBI created
by the 1999-A SUBI Supplement.
F. Concurrently herewith, the UTI Beneficiaries, HTC LP and HTD
LP are entering into that certain 1999-A SUBI Certificates Purchase and Sale
Agreement, dated as of [ ] (the "1999-A SUBI Certificates Purchase
and Sale Agreement"), pursuant to which the UTI Beneficiaries will sell,
without recourse, to HTC LP and HTD LP, all of their respective right, title
and interest in and to the 1999-A SUBI and the HTA LP/HTB LP 1999-A SUBI
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Certificates, all monies due thereon and paid thereon in respect thereof and the
right to realize on any property that may be deemed to secure the 1999-A SUBI,
and all proceeds thereof. In connection therewith, and concurrently herewith
and therewith, (1) HTA LP will transfer (a) the HTA LP/HTC LP 1999-A SUBI
Certificate to HTC LP and (b) the HTA LP/HTD LP 1999-A SUBI Certificate to HTD
LP, and (2) HTB LP will transfer (a) the HTB LP/HTC LP 1999-A SUBI Certificate
to HTC LP and (b) the HTB LP/HTD LP 1999-A SUBI Certificate to HTD LP, all
consideration of the pro rata cash payment to the UTI Beneficiaries of an amount
equal to the Aggregate Net Investment Value of the 1999-A SUBI as of [ ]
(the "Cutoff Date"), based on their respective share of the 1999-A SUBI
less the cost and expenses of the Securitization and the value of any securities
issued in connection with the Securitization and retained by the HTC LP and HTD
LP.
G. Concurrently herewith, HTC LP and HTD LP will submit the HTA
LP/HTB LP 1999-A SUBI Certificates to the Origination Trustee and direct the
Origination Trustee to issue four new SUBI Certificates as follows: (i) one
certificate to HTC LP representing a 98.802% beneficial interest in the
1999-A SUBI (the "HTC LP 1999-A SUBI Certificate"), (ii) one certificate to
HTD LP representing a 0.998% beneficial interest in the 1999-A SUBI (the "HTD
LP 1999-A SUBI Certificate" and, together with the HTC LP 1999-A SUBI
Certificate, the "1999-A SUBI Certificates"), (iii) one certificate to HTC LP
representing a 0.198% beneficial interest in the 1999-A SUBI (the "HTC LP
Retained 1999-A SUBI Certificate") and (iv) one certificate to HTD LP
representing a 0.002% beneficial interest in the 1999-A SUBI (the "HTD LP
Retained 1999-A SUBI Certificate" and, together with the HTC LP Retained
1999-A SUBI Certificate, the "Retained 1999-A SUBI Certificates"). The
1999-A SUBI Certificates shall be exclusive of proceeds of the Residual Value
Insurance Policy or other residual value insurance policies relating to the
1999-A Contracts and 1999-A Leased Vehicles.
H. Concurrently herewith, the 1999-A SUBI Securities Intermediary
will establish a securities account (as defined in Section 8-501 of the UCC)
in the name of and for the benefit of HTC LP (the "HTC LP 1999-A SUBI
Securities Account") pursuant to that certain HTC LP 1999-A SUBI Securities
Account Control Agreement dated as of [ ], between HTC LP and the
1999-A SUBI Securities Intermediary (the "HTC LP 1999-A SUBI Securities
Account Control Agreement") into which the HTC LP 1999-A SUBI Certificate and
the HTC LP Retained 1999-A SUBI Certificate will initially be transferred and
held until such time as HTC LP directs the 1999-A SUBI Securities
Intermediary to debit the HTC LP 1999-A SUBI Securities Account to reflect
the transfer of the HTC LP 1999-A SUBI Certificate pursuant to a
Securitization involving the 1999-A SUBI.
I. Concurrently herewith, the 1999-A SUBI Securities Intermediary
will establish a securities account (as defined in Section 8-501 of the UCC)
in the name of and for the benefit of HTD LP (the "HTD LP 1999-A SUBI
Securities Account") pursuant to that certain HTD LP 1999-A SUBI Securities
Account Control Agreement dated as of [ ], between HTD LP and the
1999-A SUBI Securities Intermediary (the "HTD LP 1999-A SUBI Securities
Account Control Agreement") into which the HTD LP 1999-A SUBI Certificate and
the HTD LP Retained 1999-A SUBI Certificate will initially be transferred and
held until such time as HTD LP directs the 1999-A SUBI Securities
Intermediary to debit the HTD LP 1999-A SUBI Securities Account to reflect
the transfer of the HTD LP 1999-A SUBI Certificate pursuant to a
Securitization involving the 1999-A SUBI.
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J. Concurrently herewith, the 1999-A SUBI Securities Intermediary
establish a securities account (as defined in Section 8-501 of the UCC) in
the name of and for the benefit of the 1999-A Securitization Trust (the
"99.8% 1999-A SUBI Securities Account") pursuant to that certain 99.8% 1999-A
SUBI Securities Account Control Agreement dated as of [ ], between
the 1999-A Owner Trustee, on behalf of the 1999-A Securitization Trust, and
the 1999-A SUBI Securities Intermediary (the "99.8% 1999-A SUBI Securities
Account Control Agreement"), into which the HTC LP 1999-A SUBI Certificate
will be transferred from the HTC LP 1999-A SUBI Securities Account and the
HTD LP 1999-A SUBI Certificate will be transferred from the HTD LP 1999-A
SUBI Securities Account, respectively, and held until such time as the 1999-A
Owner Trustee directs the 1999-A SUBI Securities Intermediary to debit the
[99.8% 1999-A SUBI Securities Account to reflect the transfer of the HTC LP
1999-A SUBI Certificate and the HTD LP 1999-A SUBI Certificate to the 1999-A
Securitization Trust pursuant to the Securitization involving the 1999-A SUBI.]
K. The parties hereto desire to enter into this 1999-A
Securitization Trust Agreement to create the 1999-A Securitization Trust whereby
HTC LP and HTD LP will transfer the 1999-A SUBI Certificates to the 1999-A
Securitization Trust and in exchange therefor the 1999-A Securitization Trust
will pledge the 1999-A SUBI Certificates to the 1999-A Indenture Trustee in
connection with the Securitization pursuant to the Indenture and will issue the
Certificates and deliver the Notes representing interests in the 1999-A
Securitization Trust which will be secured by the 1999-A SUBI Certificates.
L. Concurrently herewith, the 1999-A Indenture Trustee and the
1999-A Owner Trustee are entering into that certain indenture, dated as of
[ ] (the "Indenture"), pursuant to which the 1999-A Indenture Trustee will
issue the Notes and the 1999-A Owner Trustee will grant a security interest in
all of the assets held by the 1999-A Securitization Trust, including the 1999-A
SUBI Certificates, to the 1999-A Indenture Trustee to secure the 1999-A Owner
Trustee's obligations under the Indenture.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01 DEFINITIONS. For all purposes of this 1999-A Securitization
Trust Agreement, except as otherwise expressly provided or unless the context
otherwise requires, capitalized terms used and not otherwise defined herein
shall have the meanings ascribed thereto in the Agreement of Definitions (as it
may be amended, supplemented or restated from time to time, the "Agreement of
Definitions"), dated as of [ ] by and among the Origination Trustee,
the Delaware Trustee, HTA LP, HTB LP, HTC LP, HTD LP, the Servicer, the Delaware
Owner Trustee, the 1999-A Indenture Trustee and U.S. Bank, as trust agent and as
owner trustee; PROVIDED, HOWEVER, in the event of any conflict between a
definition set forth both herein and the Agreement of Definitions, the
definition set forth herein shall prevail.
Section 1.02 INTERPRETIVE PROVISIONS. For all purposes of this 1999-A
Securitization Trust Agreement, except as otherwise expressly provided or unless
the context otherwise requires, (i) terms used in this 1999-A Securitization
Trust Agreement include, as appropriate, all
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genders and the plural as well as the singular, (ii) references to this 1999-A
Securitization Trust Agreement include all Exhibits and Schedules hereto,
(iii) references to words such as "herein", "hereof" and the like shall refer to
this 1999-A Securitization Trust Agreement as a whole and not to any particular
part, Article or Section within this 1999-A Securitization Trust Agreement, (iv)
references to a section such as "Section 2.01" or an Article such as "Article
Two" shall refer to the applicable Section or Article of this 1999-A
Securitization Trust Agreement, (v) the term "include" and all variations
thereof shall mean "include without limitation", (vi) the term "or" shall mean
"and/or", (vii) the term "proceeds" shall have the meaning ascribed to such term
in the UCC, (viii) the phrase "Origination Trustee, acting on behalf of the
Origination Trust," or words of similar import, shall be deemed to refer to the
Origination Trustee, acting on behalf of the Honda Lease Trust and all
beneficiaries thereof, and (ix) the phrase "1999-A Owner Trustee, acting on
behalf of the 1999-A Securitization Trust," or words of similar import, shall be
deemed to refer to the 1999-A Owner Trustee, acting on behalf of the Honda Auto
Lease Trust 1999-A and all beneficiaries thereof.
ARTICLE TWO
CREATION OF TRUST; ESTABLISHMENT OF SUBI
SECURITIES ACCOUNT
Section 2.01 CREATION OF TRUST; ESTABLISHMENT OF SUBI SECURITIES ACCOUNT.
(a) CREATION OF TRUST. Upon the execution of this 1999-A Securitization
Trust Agreement by the parties hereto, there is hereby created the "Honda Auto
Lease Trust 1999-A". It is the intention of the parties hereto that the 1999-A
Securitization Trust constitute a business trust under the Business Trust
Statute and that this 1999-A Securitization Trust Agreement constitute the
governing instrument of such business trust.
(b) ESTABLISHMENT OF 99.8% 1999-A SUBI SECURITIES ACCOUNT.
(i) Pursuant to a separate agreement, dated as of [May 31,
1999,] between the 1999-A Securitization Trust and the 1999-A SUBI
Securities Intermediary, a securities account (as such term is defined in
Section 8-501(a) of the UCC) (the "99.8% 1999-A SUBI Securities Account")
will be established by and maintained with U.S. Bank, in its capacity as
the 1999-A SUBI Securities Intermediary, for the benefit of the 1999-A
Securitization Trust.
(ii) HTC LP and HTD LP shall direct the 1999-A SUBI Securities
Intermediary to credit to the 99.8% 1999-A SUBI Securities Account the
interests in the 1999-A SUBI Certificates transferred, assigned, or
otherwise conveyed by HTC LP and HTD LP as described in Section 2.04.
Section 2.02 OFFICE. The chief executive office and principal place of
business of the 1999-A Securitization Trust shall be in care of the 1999-A Owner
Trustee, initially at the Corporate Trust Office and thereafter at such other
address in the United States as the 1999-A Owner Trustee may designate by
written notice to the Certificateholders, the Noteholders, HTC LP, HTD LP and
the 1999-A Indenture Trustee.
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Section 2.03 APPOINTMENT OF OWNER TRUSTEES. HTC LP and HTD LP hereby
appoint the 1999-A Owner Trustee as trustee of the 1999-A Securitization
Trust and the Delaware Owner Trustee as the co-trustee of the 1999-A
Securitization Trust effective as of the date hereof, to have all the rights,
powers and duties set forth herein, and the 1999-A Owner Trustee and the
Delaware Owner Trustee hereby accept such appointment. The 1999-A Owner
Trustee and the Delaware Owner Trustee shall file the Certificate of Trust
with the Delaware Secretary of State.
Section 2.04 CONVEYANCE OF THE 1999-A SUBI CERTIFICATES.
(a) CONVEYANCE TO THE 1999-A OWNER TRUSTEE. In consideration of the
1999-A Securitization Trust's delivery to HTC LP and HTD LP of (i) executed and
authenticated Notes, in authorized denominations in the aggregate equal to the
Initial Class A-1 Note Balance, the Initial Class A-2 Note Balance, the Initial
Class A-3 Note Balance, the Initial Class A-4 Note Balance and the Initial Class
B Note Balance, and (ii) executed and authenticated Certificates, HTC LP and HTD
LP do hereby transfer, assign and otherwise convey to the 1999-A Owner Trustee,
in trust for the benefit of the Noteholders and the Certificateholders, to the
full extent of HTC LP's and HTD LP's interest therein, without recourse (subject
to HTC LP's and HTD LP's obligations herein):
(i) all right, title and interest of HTC LP in and to the HTC LP
1999-A SUBI Certificate, the rights in and benefits of the HTC LP 1999-A
SUBI Interest evidenced by the HTC LP 1999-A SUBI Certificate and all
monies due thereon and paid thereon or in respect thereof;
(ii) all right, title and interest of HTD LP in and to the HTD LP
1999-A SUBI Certificate and, the rights in and benefits of the HTD LP
1999-A SUBI Interest evidenced by the HTD LP 1999-A SUBI Certificate and
all monies due thereon and paid thereon or in respect thereof;
(iii) the right to realize upon any property that may be deemed to
secure the foregoing;
(iv) all rights accruing to the holder of the 1999-A SUBI
Certificates under the 1999-A SUBI Supplement, the Origination Trust
Agreement, the 1999-A Servicing Supplement and the Servicing Agreement; and
(v) all proceeds of the foregoing; PROVIDED, HOWEVER, that all
monies and payments due or payable under the Residual Value Insurance
Policy or any other residual value insurance policies applicable to the
1999-A Leased Vehicles or the 1999-A Contracts and the right to receive
such payments and monies are retained by the Origination Trust and are not
hereby transferred, assigned or otherwise conveyed to the 1999-A Owner
Trustee nor will they, under any circumstances, be subject to the Lien of
the 1999-A Securitization Trust or any claim by the 1999-A Owner Trustee.
(b) GRANT OF SECURITY INTEREST.
(i) Each of HTC LP and HTD LP hereby also grants to the 1999-A
Owner Trustee a security interest in all of its right, title and privileges
and interest in and to the
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foregoing (exclusive of the monies and payments referred to in Section
2.04(a)(v)), and the 1999-A Owner Trustee shall have all the rights, powers
and privileges thereto and therein of a secured party under the Delaware
UCC.
(ii) Pursuant to the Indenture, the 1999-A Owner Trustee shall
grant to the 1999-A Indenture Trustee a security interest in the 1999-A
SUBI Certificates and the related property set forth in Section 2.04(a).
(c) TERMINATION. The rights and powers granted herein to the 1999-A
Owner Trustee have been granted in order to perfect its security interests in
the assets referred to in Section 2.04(a), are powers coupled with an
interest and will not be affected either by the bankruptcy of any other
person or entity or by the lapse of time. The obligations of the 1999-A SUBI
Securities Intermediary hereunder shall continue in effect until the security
interests of the 1999-A Owner Trustee in the 99.8% 1999-A SUBI Securities
Account have been terminated pursuant to the terms of this 1999-A
Securitization Trust Agreement and the 1999-A Owner Trustee has notified the
1999-A SUBI Securities Intermediary of such termination in writing. Upon (i)
a termination of this 1999-A Securitization Trust Agreement pursuant to
Section 7.01(a)(i) or (iii), the 1999-A Owner Trustee is hereby authorized to
convey all interest in (x) the HTC LP 1999-A SUBI Certificate and the HTC LP
1999-A SUBI Interest evidenced thereby to HTC LP and (y) the HTD LP 1999-A
SUBI Certificate and the HTD LP 1999-A SUBI Interest evidenced thereby to HTD
LP, and (ii) a termination of this 1999-A Securitization Trust Agreement
pursuant to Section 7.01(a)(ii) or a repurchase of the 1999-A SUBI
Certificates and the Retained 1999-A SUBI Certificates by the Servicer
pursuant to Section 7.02, the 1999-A Owner Trustee is hereby authorized to
convey to the Servicer all interests in the 1999-A SUBI Certificates and the
1999-A SUBI Interest evidenced thereby. Upon a termination of this 1999-A
Securitization Trust Agreement pursuant to Section 7.01(a)(iv), the 1999-A
Owner Trustee is hereby authorized to convey all interests in the 1999-A SUBI
Certificates and the 1999-A SUBI Interest evidenced thereby, evidenced
thereby to the purchaser thereof. The 1999-A Owner Trustee shall not be
responsible for or have any liability with respect to any losses incurred in
connection with any such liquidation, other than as a result of its own
negligence or willful misfeasance.
Section 2.05 PURPOSES AND POWERS. The sole purpose of the 1999-A
Securitization Trust is to conserve the 1999-A Securitization Trust Estate and
collect and disburse the periodic income therefrom for the use and benefit of
the Certificateholders and the Noteholders and, in furtherance of such purpose,
to engage in the following ministerial activities:
(a) to acquire the 1999-A SUBI Certificates and the other property of the
1999-A Securitization Trust Estate from HTC LP and HTD LP in exchange for the
issuance and delivery of the Notes and the Certificates;
(b) to issue the Certificates pursuant to this 1999-A Securitization Trust
Agreement, to pledge the 1999-A SUBI Certificates to the 1999-A Indenture
Trustee in exchange for the executed and authenticated Notes and to deliver to,
or upon the order of, HTC LP and HTD LP the executed Notes and the Certificates;
(c) to pay interest on and principal of the Notes and the Certificates;
7
(d) to assign, grant, transfer, pledge, mortgage and convey to the 1999-A
Indenture Trustee the 1999-A SUBI Certificates pursuant to the Indenture as
security for the Notes and to hold, manage and distribute to the
Certificateholders pursuant to the terms of this 1999-A Securitization Trust
Agreement any portion of the 1999-A Securitization Trust Estate released from
the Lien of, and remitted to the 1999-A Securitization Trust pursuant to, the
Indenture;
(e) to enter into and perform its obligations under the 1999-A
Securitization Documents to which the 1999-A Securitization Trust is a party;
(f) to engage in other transactions, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or that
are incidental thereto or connected therewith; and
(g) subject to compliance with the 1999-A Securitization Documents, to
engage in such other activities as may be required in connection with conserving
the 1999-A Securitization Trust Estate and making distributions to the
Noteholders and the Certificateholders.
The 1999-A Securitization 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 1999-A Securitization Trust Agreement or the other 1999-A
Securitization Documents.
Section 2.06 ACCEPTANCE BY THE 1999-A OWNER TRUSTEE. The 1999-A Owner
Trustee hereby accepts on behalf of the 1999-A Securitization Trust all
consideration conveyed by HTC LP and HTD LP pursuant to Section 2.04(a) and
declares that the 1999-A Owner Trustee shall hold such consideration in trust as
herein set forth for the benefit of the Noteholders and the Certificateholders,
subject to the terms and provisions of this 1999-A Securitization Trust
Agreement and the Indenture. In accepting the 1999-A SUBI Certificates, the
1999-A Owner Trustee hereby releases all claims to the Trust Assets allocated to
the UTI Sub-Trust or any other Sub-Trust and, in the event that such release is
not given effect, to fully subordinate all claims it may be deemed to have
against the Trust Assets allocated thereto.
Section 2.07 TITLE TO TRUST PROPERTY. Legal title to the 1999-A
Securitization Trust Estate shall be vested at all times in the 1999-A
Securitization Trust as a separate legal entity, except where applicable law in
any jurisdiction requires title to any part of the 1999-A Securitization Trust
Estate to be vested in a trustee, in which case title shall be deemed to be
vested in the 1999-A Owner Trustee, a co-trustee or a separate trustee, as the
case may be.
Section 2.08 SITUS OF TRUST. The 1999-A Securitization Trust shall be
located and administered in the State of Delaware. All bank accounts maintained
by the 1999-A Owner Trustee on behalf of the 1999-A Securitization Trust shall
be located in California, Delaware, Illinois or New York. The 1999-A
Securitization Trust shall not have any employees in any state other than
Delaware; PROVIDED, HOWEVER, that nothing herein shall restrict or prohibit the
1999-A Owner Trustee from having employees within or without the State of
Delaware. Payments shall be received by the 1999-A Securitization Trust only in
California, Delaware, Illinois or New York and payments shall be made by the
1999-A Securitization Trust only from California, Delaware, Illinois or New
York.
8
Section 2.09 TAX REPORTING. Unless otherwise required by appropriate tax
authorities, the 1999-A Securitization Trust shall not file or cause to be filed
annual or other income or franchise tax returns and shall not be required to
obtain any taxpayer identification number.
Section 2.10 TRANSFER OF COLLECTIONS. The parties hereto acknowledge
that the Origination Trustee, on behalf of the Origination Trust, has made a
complete transfer to the 1999-A Owner Trustee of the Collections in respect of
the 1999-A SUBI Assets contained in all accounts maintained by the Origination
Trustee (excluding proceeds of the Residual Value Insurance Policy or any other
residual value insurance policies, which are solely the property of the
Origination Trust) and, except as provided in this 1999-A Securitization Trust
Agreement, the 1999-A SUBI Supplement and the 1999-A Servicing Supplement,
neither the Origination Trustee nor the Servicer has any right to direct such
funds to a third party or to receive such funds (other than to receive such
funds pursuant to an investment thereof in Eligible Investments on which
Origination Trustee is the obligor).
ARTICLE THREE
ACCOUNTS; DISTRIBUTIONS; THE RESERVE FUND;
STATEMENTS TO SECURITYHOLDERS
Section 3.01 1999-A NOTE DISTRIBUTION ACCOUNT; 1999-A CERTIFICATE
DISTRIBUTION ACCOUNT.
(a) ESTABLISHMENT OF THE 1999-A NOTE DISTRIBUTION ACCOUNT. Pursuant to
Section 9.02(f) of the 1999-A Servicing Supplement, the Servicer, on behalf of
the 1999-A Owner Trustee, shall establish and maintain an Eligible Account with
and in the name of the 1999-A Indenture Trustee for the benefit of the
Noteholders, which account shall be designated the "1999-A Note Distribution
Account". If for any reason the 1999-A Note Distribution Account is no longer
an Eligible Account, the Servicer, with the assistance of the 1999-A Indenture
Trustee, shall promptly cause the 1999-A Note Distribution Account to be moved
to another institution or otherwise changed so that the 1999-A Note Distribution
Account becomes an Eligible Account. The 1999-A Owner Trustee hereby grants a
security interest in the 1999-A Note Distribution Account, all Eligible
Investments therein and all proceeds of the foregoing to the 1999-A Indenture
Trustee for the benefit of the Noteholders to secure the obligations of the
1999-A Owner Trustee under this 1999-A Securitization Trust Agreement to the
1999-A Indenture Trustee on behalf of the Noteholders.
(b) ESTABLISHMENT OF THE 1999-A CERTIFICATE DISTRIBUTION ACCOUNT.
Pursuant to Section 9.02(f) of the 1999-A Servicing Supplement, the Servicer, on
behalf of the 1999-A Owner Trustee, shall establish and maintain an Eligible
Account with and in the name of the 1999-A Owner Trustee for the benefit of the
Certificateholders, which account shall be designated the "1999-A Certificate
Distribution Account". If for any reason the 1999-A Certificate Distribution
Account is no longer an Eligible Account, the Servicer, with the assistance of
the 1999-A Owner Trustee, shall promptly cause the 1999-A Certificate
Distribution Account to be moved to another institution or otherwise changed so
that the 1999-A Certificate Distribution Account becomes an Eligible Account.
9
Section 3.02 COLLECTIONS.
(a) Pursuant to Section 13.01(b) of the 1999-A SUBI Supplement and Section
9.02(h) of the 1999-A Servicing Supplement, on each Deposit Date the Servicer
shall cause the transfer of Collections in respect of the 1999-A SUBI Assets
from the 1999-A SUBI Collection Account to (i) HTC LP and HTD LP in respect of
the Retained 1999-A SUBI Certificates and (ii) either the 1999-A Note
Distribution Account or the 1999-A Certificate Distribution Account in respect
of the Notes and the Certificates (net of amounts that may be retained by the
Servicer pursuant to the 1999-A Securitization Documents). Such deposits shall
be made in immediately available funds, no later than 3:00 p.m., New York City
time, on the relevant Deposit Date.
(b) The 1999-A Indenture Trustee shall retain, subject to the provisions
of this 1999-A Securitization Trust Agreement and the other 1999-A
Securitization Documents, all collections on or in respect of the 1999-A SUBI
Interest transferred to the 1999-A Indenture Trustee, on behalf of the
Noteholders, in accordance with such provisions, in the 1999-A Note Distribution
Account or the Reserve Fund, as the case may be. The 1999-A Indenture Trustee
shall be deemed to have possession of such monies and collections for purposes
of Section 9-305 of the UCC of the jurisdiction in which such property is
located.
(c) The 1999-A Owner Trustee shall retain, subject to the provisions of
this 1999-A Securitization Trust Agreement and the other 1999-A Securitization
Documents, all collections on or in respect of the 1999-A SUBI Interest
transferred to the 1999-A Owner Trustee, on behalf of the Certificateholders, in
accordance with such provisions, in the 1999-A Certificate Distribution Account.
The 1999-A Owner Trustee shall be deemed to have possession of such monies and
collections for purposes of Section 9-305 of the UCC of the jurisdiction in
which such property is located.
(d) For so long as the depository institution or trust company meets
the requirements of Sections 3.01(a) and (b), as applicable, all amounts in
the 1999-A Note Distribution Account and the 1999-A Certificate Distribution
Account shall, to the extent permitted by applicable laws, rules and
regulations, be invested, as directed by the Servicer pursuant to Section
9.02(k) of the 1999-A Servicing Supplement, in Eligible Investments (or if
the Servicer fails to give directions with respect to the 1999-A Note
Distribution Account, as provided in Section 8.03(c) of the Indenture);
otherwise such amounts shall be retained in a mutual fund offered by the
Origination Trustee or an Affiliate of the Origination Trustee, the 1999-A
Indenture Trustee or an Affiliate of the 1999-A Indenture Trustee or the
1999-A Owner Trustee, each of which meets the requirements of clause (i) of
the definition of Eligible Investments. Earnings on investment of funds in
the 1999-A Note Distribution Account and the 1999-A Certificate Distribution
Account shall be retained in the 1999-A Note Distribution Account and the
1999-A Certificate Distribution Account, as the case may be, and treated as
Interest Collections and shall constitute part of the 1999-A Securitization
Trust Estate. Losses resulting from investment of funds in the 1999-A Note
Distribution Account and the 1999-A Certificate Distribution Account shall be
charged against the funds on deposit in the applicable account.
Section 3.03 DISTRIBUTIONS.
(a) On each Determination Date, pursuant to Section 9.02(g) of the 1999-A
Servicing Supplement, the Servicer shall calculate (i) amounts distributable to
the holders of the Retained 1999-A SUBI Certificates and (ii) the Class A-1
Distributable Amount, the Class A-2 Distributable Amount, the Class A-3
Distributable Amount, the Class X-0 Xxxxxxxxxxxxx Xxxxxx,
00
the Class B Distributable Amount, the Certificate Distributable Amount and all
other amounts to be distributed on the related Distribution Date.
(b) On each Determination Date, the Servicer shall deliver to the 1999-A
Owner Trustee a Servicer's Certificate that sets forth, among other things, the
amount of Interest Collections and Principal Collections allocable to the 1999-A
SUBI Certificates, the Investor Percentage, the amount of Advances (including,
separately, any Nonrecoverable Advances), if any, to be made by or reimbursed to
the Servicer, the aggregate amount, if any, to be withdrawn from the Reserve
Fund and the 1999-A SUBI Servicing Fee and other servicing compensation payable
to the Servicer with respect to the preceding Collection Period and related
Distribution Date. On or prior to each Determination Date, the Servicer shall
also determine the Reserve Fund Requirement and any amounts to be distributed
from the Reserve Fund to the Noteholders and to the Certificateholders.
(c) INTEREST DISTRIBUTIONS. The right of the Class B Noteholders to
receive distributions of Interest Collections allocable to the 1999-A SUBI
Interest in respect of the Class B Notes shall be and are subordinated to the
rights of the Class A-1 Noteholders, the Class A-2 Noteholders, the Class A-3
Noteholders and the Class A-4 Noteholders to receive distributions of Interest
Collections allocable to the 1999-A SUBI Interest in respect of the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes to the
extent provided in this 1999-A Securitization Trust Agreement and the Indenture.
The right of the Certificateholders to receive distributions of Interest
Collections allocable to the 1999-A SUBI Interest in respect of the Certificates
shall be and are subordinated to the rights of both the Class A Noteholders and
the Class B Noteholders to receive distributions of Interest Collections
allocable to the 1999-A SUBI Interest in respect of both the Class A Notes and
the Class B Notes to the extent provided in this 1999-A Securitization Trust
Agreement and the Indenture. On each Distribution Date, the Servicer shall,
pursuant to the instructions of the 1999-A Owner Trustee, transfer from the
1999-A SUBI Collection Account and the Reserve Fund, the sum of (A) the product
of (i) the Investor Percentage with respect to Interest Collections, multiplied
by (ii) the Interest Collections for the related Collection Period, (B) under
the circumstances set forth in Section 3.03(f), from the Reserve Fund, the
Required Amount, if any, for such Distribution Date and (C) any amount of
Principal Collections that otherwise would be distributed to the Class B
Noteholders but is required to be applied to the payment of clauses (x) through
(xii) to Class A-4 Noteholders as described below in Section 3.03(f), in the
following amounts and otherwise in the following order of priority to the
following Persons:
(i) in the event of an Indenture Event of Default as a result of
the 1999-A Indenture Trustee having received written instructions from
holders of Class A Notes representing a majority of the Voting Interests
thereof, voting together as a single class, or holders of Class A Notes and
Class B Notes representing a majority of the Voting Interests thereof,
voting together as a single class, to sell or dispose of the 1999-A SUBI
Interest, to the 1999-A Indenture Trustee, reimbursement of the Investor
Percentage of Capped Indenture Trustee Administrative Expenses, and, to the
1999-A Owner Trustee, reimbursement of the Investor Percentage of Capped
Owner Trustee Administrative Expenses;
11
(ii) to the 1999-A Note Distribution Account for the pro rata
payment to each Class of Class A Noteholders, interest at the related Note
Rate on the Class A-1 Note Balance, Class A-2 Note Balance, Class A-3 Note
Balance or Class A-4 Note Balance, as applicable, as of the immediately
preceding Distribution Date (after giving effect to any reduction in such
Note Balance on such immediately preceding Distribution Date) or, in the
case of the first Distribution Date, on the Initial Class A-1 Note Balance,
the Initial Class A-2 Note Balance, the Initial Class A-3 Note Balance or
the Initial Class A-4 Note Balance, as applicable, together with any unpaid
Class A-1 Interest Carryover Shortfall, Class A-2 Interest Carryover
Shortfall, Class A-3 Interest Carryover Shortfall or Class A-4 Interest
Carryover Shortfall, as applicable;
(iii) to the 1999-A Note Distribution Account for payment to the
Class B Noteholders, interest at the Class B Note Rate on the Class B Note
Balance as of the immediately preceding Distribution Date (after giving
effect to any reduction in the Class B Note Balance on such immediately
preceding Distribution Date) or, in the case of the first Distribution
Date, on the Initial Class B Note Balance, together with any unpaid Class B
Interest Carryover Shortfall;
(iv) to the 1999-A Certificate Distribution Account for payment
to the Certificateholders, interest at the Certificate Rate on the
Certificate Balance as of the immediately preceding Distribution Date
(after giving effect to any reduction in the Certificate Balance on such
immediately preceding Distribution Date) or, in the case of the first
Distribution Date, on the Initial Certificate Balance, together with any
unpaid Certificate Interest Carryover Shortfall;
(v) to the Servicer, reimbursement of the Investor Percentage of
Capped Contingent and Excess Liability Premiums;
(vi) to the Origination Trustee, reimbursement of the Investor
Percentage of Capped Origination Trust Administrative Expenses;
(vii) in circumstances other than as set forth in clause (i)
above, to the 1999-A Indenture Trustee, reimbursement of the Investor
Percentage of Capped Indenture Trustee Administrative Expenses, and, to the
1999-A Owner Trustee, reimbursement of the Investor Percentage of Capped
Owner Trustee Administrative Expenses;
(viii) to the Servicer, the Investor Percentage of (a) the 1999-A
SUBI Servicing Fee and (b) any unpaid 1999-A SUBI Servicing Fees payable in
respect of compensation to the Servicer with respect to one or more prior
Collection Periods;
(ix) to the Reserve Fund, until the amount on deposit therein
equals the Reserve Fund Requirement;
(x) to the 1999-A Note Distribution Account for payment to the
Class A Noteholders, (a) so long as the Note Balance of the Class B Notes
has not been reduced to zero, an amount equal to the Covered Loss Amount
for the related Distribution Date sequentially, commencing with the Class
A-1 Noteholders until the Note Balance of each such Class has been reduced
to zero, or (b) if the Note Balance of the Class B Notes has
12
been reduced to zero, pro rata, based on the Class A-1, Class A-2, Class
A-3 or Class A-4 Allocation Percentage, as applicable, an amount equal to
the sum of the Covered Loss Amount and the Uncovered Loss Amount for the
related Distribution Date;
(xi) to the 1999-A Note Distribution Account for payment to each
Class of Class A Noteholders, pro rata, based upon the aggregate of the
amounts allocable to such Class pursuant to clause (x) above that were not
previously distributed pursuant to such clause or this clause (each such
amount, a "Class A-1 Note Principal Loss Amount", "Class A-2 Note Principal
Loss Amount", "Class A-3 Note Principal Loss Amount" or "Class A-4 Note
Principal Loss Amount", respectively);
(xii) to the 1999-A Note Distribution Account for payment to each
Class of Class A Noteholders, accrued and unpaid interest at the related
Note Rate on any unreimbursed Class A-1, Class A-2, Class A-3 and Class A-4
Note Principal Loss Amount, as applicable;
(xiii) to the 1999-A Note Distribution Account for payment to the
Class B Noteholders, (a) if the Certificate Balance has been reduced to
zero, an amount equal to the Uncovered Loss Amount for the related
Distribution Date plus (b) following the reduction of the Note Balance of
the Class A Notes to zero, the Covered Loss Amount for the related
Distribution Date, until the Note Balance of the Class B Notes is reduced
to zero;
(xiv) to the 1999-A Note Distribution Account for payment to the
Class B Noteholders, the aggregate of the amounts allocable pursuant to
clause (xiii) above that were not previously distributed pursuant to such
clause or this clause (each such amount, a "Class B Note Principal Loss
Amount"), together with any Class B Note Principal Carryover Shortfall;
(xv) to the 1999-A Note Distribution Account for payment to the
Class B Noteholders, accrued and unpaid interest at the Class B Note Rate
on any unreimbursed Class B Note Principal Loss Amount and any unreimbursed
Class B Note Principal Carryover Shortfall;
(xvi) to the 1999-A Certificate Distribution Account for payment
to the Certificateholders, (a) an amount equal to the Uncovered Loss Amount
for the related Distribution Date plus (b) following the reduction of the
Note Balance of the Class B Notes to zero, the Covered Loss Amount for the
related Distribution Date, until the Certificate Balance is reduced to
zero;
(xvii) to the 1999-A Certificate Distribution Account for payment
to the Certificateholders, the aggregate of the amounts allocable pursuant
to clause (xvi) above that were not previously distributed pursuant to such
clause or this clause (each such amount, a "Certificate Principal Loss
Amount"), together with any Certificate Principal Carryover Shortfall;
(xviii) to the 1999-A Certificate Distribution Account for payment
to the Certificateholders, accrued and unpaid interest at the Certificate
Rate on any
13
unreimbursed Certificate Principal Loss Amount and any unreimbursed
Certificate Principal Carryover Shortfall; and
(xix) to the 1999-A Indenture Trustee, the 1999-A Owner Trustee
and the Origination Trustee, as applicable, the Investor Percentage of all
Uncapped Administrative Expenses.
The balance, if any, of the Interest Collections allocated to the Notes and
the Certificates for the related Collection Period, after giving effect to
the distributions in clauses (i) through (xix) above and net of any amount
required to maintain the 1999-A Note Distribution Account or the 1999-A
Certificate Distribution Account in good standing, will constitute "Excess
Interest Collections".
(d) EXCESS INTEREST COLLECTIONS. On each Distribution Date, the
Servicer, on behalf of the 1999-A Owner Trustee, shall distribute the entire
amount of Excess Interest Collections to HTC LP and HTD LP based upon their
respective percentage ownership of the Retained 1999-A SUBI Interest
PROVIDED, HOWEVER, in the event the ERISA Compliance Test, if applicable, is
not met on any Distribution Date, all Excess Interest Collections shall be
deposited into the Reserve Fund. Upon any such distributions to HTC LP and
HTD LP of Excess Interest Collections, neither the Noteholders nor the
Certificateholders will have any rights in or claims to such amounts.
(e) PRINCIPAL DISTRIBUTIONS. On each Distribution Date beginning with the
first Distribution Date and ending on the Distribution Date before the
Distribution Date on which the Class A-3 Notes have been paid in full, the
1999-A Owner Trustee shall distribute from the 1999-A SUBI Collection Account an
amount equal to the Investor Percentage of all Principal Collections collected
or received in respect of the related Collection Period allocable to the 1999-A
SUBI Interest to (i) the 1999-A Note Distribution Account for payment to the
Class A-1 Noteholders until the Class A-1 Notes have been paid in full, (ii) the
1999-A Note Distribution Account for payment to the Class A-2 Noteholders until
the Class A-2 Notes have been paid in full, (iii) the 1999-A Note Distribution
Account for payment to the Class A-3 Noteholders until the Class A-3 Notes have
been paid in full and (iv) the 1999-A Note Distribution Account for payment of
the Class A Percentage and the Class B Percentage of any remaining Principal
Collections to the Class A-4 Noteholders and Class B Noteholders, respectively.
On each Distribution Date from and after the Class A-3 Notes have been paid in
full, the 1999-A Owner Trustee shall distribute (i) to the 1999-A Note
Distribution Account for payment to the Class A-4 Noteholders, the Class A
Percentage of Principal Collections collected or received in respect of the
related Collection Period allocable to the 1999-A SUBI Interest and (ii) subject
to subsection (f) below, to the 1999-A Note Distribution Account for payment to
the Class B Noteholders, the Class B Percentage of such Principal Collections.
On each Distribution Date after the Class B Notes have been paid in full, the
1999-A Owner Trustee shall distribute to the 1999-A Certificate Distribution
Account for payment to the Certificateholders the Certificate Percentage of all
Principal Collections collected or received in respect of the related Collection
Period allocable to the 1999-A SUBI Interest. Distributions to the 1999-A Note
Distribution Account and the 1999-A Certificate Distribution Account, and
subsequently to the Noteholders and Certificateholders, for payment pursuant to
Sections 3.03(c)(x) through (xviii) shall constitute distributions of principal.
The aggregate amount of principal distributed to any Class of Noteholders or the
Certificateholders shall not exceed the Initial Note Balance or Initial
Certificate Balance, as the case may be, attributable to that Class of Notes or
the Certificates, as applicable. Uncovered
14
Loss Amounts will be allocated (i) first, to the Certificateholders until the
Certificate Balance equals zero, (ii) then, to the Class B Noteholders until the
Note Balance of the Class B Notes has been reduced to zero and (iii) then, to
the Class A Noteholders, pro rata, based on the Class A-1, Class A-2, Class A-3
and Class A-4 Allocation Percentages.
(f) If and to the extent that the Collections available to make
distributions on a Distribution Date are insufficient to make (1) the
distributions pursuant to clauses (i) through (iv) and (x) through (xviii) of
Section 3.03(c), the Required Amount will be withdrawn from the Reserve Fund and
applied towards such shortfall as set forth in Section 3.03(c) or (2) the
distributions to the Class A-4 Noteholders pursuant to clauses (x) through (xii)
of Section 3.03(c), then amounts otherwise available for distribution to the
Class B Noteholders in respect of principal pursuant to subsection (e) above
will be applied toward such insufficiency.
If on any Distribution Date there remain any shortfalls in the amounts required
to be distributed pursuant to clauses (ii), (x), (xi) or (xii) of Section
3.03(c) to the Class A-1 Noteholders, the Class A-2 Noteholders, the Class A-3
Noteholders and the Class A-4 Noteholders, the amounts available will be
distributed pro rata to the Class A-1 Noteholders, the Class A-2 Noteholders,
the Class A-3 Noteholders and the Class A-4 Noteholders based on the Class A-1
Allocation Percentage, the Class A-2 Allocation Percentage, the Class A-3
Allocation Percentage and the Class A-4 Allocation Percentage, respectively.
Notwithstanding the foregoing, if on any Distribution Date, the sum of the (i)
Class A-4 Loss Amount, (ii) Class A-4 Note Principal Loss Amount and (iii) Class
A-4 Note Principal Interest Loss Amount (such sum, the "Class A-4 Aggregate Loss
Amount") would be equal to or greater than the Class B Note Balance, the Class B
Noteholders shall not be entitled to receive the Class B Interest Distributable
Amount or the Class B Interest Carryover Shortfall pursuant to clause (iii) of
Section 3.03(c) and such amounts shall instead be distributed, to the extent of
the shortfall in amounts available to pay the Class A-4 Aggregate Loss Amount,
to the Class A-4 Noteholders as set forth in clauses (x), (xi) and (xii) of
Section 3.03(c). For each such Distribution Date, all such Class B Interest
Distributable Amounts and Class B Interest Carryover Shortfall which are not
distributed to the Class B Noteholders shall be allocated to the Class B
Noteholders as Class B Loss Amounts to be paid as set forth in clauses (xiii),
(xiv) and (xv). If on any subsequent Distribution Date, the Class B Note
Balance exceeds the Class A-4 Aggregate Loss Amount, the Class B Noteholders
shall be entitled to distributions of the Class B Interest Distributable Amount
and the Class B Interest Carryover Shortfall as set forth in the clause (iii) of
Section 3.03(c).
(g) PAYMENTS TO SERVICER, 1999-A OWNER TRUSTEE, 1999-A INDENTURE TRUSTEE
AND ORIGINATION TRUSTEE. On each Distribution Date, the 1999-A Owner Trustee
shall pay to the Servicer the amounts allocated pursuant to clauses (v) and
(viii) of Section 3.03(c) above. On each Distribution Date, the 1999-A Owner
Trustee shall pay to the Origination Trustee the amounts allocated pursuant to
clauses (vi) and (xix) of Section 3.03(c) above. On each Distribution Date, the
1999-A Owner Trustee shall pay to the 1999-A Indenture Trustee the amounts
allocated pursuant to clauses (vii) and (xix) of Section 3.03(c) above. On each
Distribution Date, the 1999-A Owner Trustee will be entitled to withdraw from
the 1999-A SUBI Collection Account for its own benefit and use, the amounts
allocated pursuant to clauses (vii) and (xix) of Section 3.03(c) above, except
that if the Servicer previously has made Advances in respect of such amounts,
the 1999-A Owner Trustee shall instead pay such amounts to the Servicer up to
the amount of such Advances not previously reimbursed.
15
Notwithstanding the foregoing, in accordance with the provisions of Section
2.06(f) of the Servicing Agreement and Section 9.02(b)(ii) of the 1999-A
Servicing Supplement, for so long as AHFC is the Servicer and each Monthly
Remittance Condition is satisfied, the Servicer will be entitled to make
deposits of Collections into the 1999-A SUBI Collection Account net of amounts
payable or reimbursable to the Servicer as compensation, in respect of Advances
or otherwise (including for amounts advanced by the Servicer for amounts
otherwise payable to the 1999-A Owner Trustee, the 1999-A Indenture Trustee, the
Origination Trustee or the Trust Agent), and net of amounts payable or
reimbursable (and actually so paid or reimbursed directly by the Servicer) in
respect of the Origination Trust. To the extent the Servicer makes deposits net
of any such amounts, the Servicer will cause each relevant Servicer's
Certificate to correctly and accurately account for such amounts in providing
all information with respect to allocations, applications and payments to be
made pursuant to this Section 3.03 of this 1999-A Securitization Trust Agreement
on the same basis as though such amounts were in fact deposited into the 1999-A
SUBI Collection Account. Moreover, the Servicer will, in each relevant
Servicer's Certificate, instruct the 1999-A Owner Trustee not to make any
distribution to the Servicer, the 1999-A Owner Trustee, the 1999-A Indenture
Trustee or the Origination Trustee to the extent that the Servicer has made any
deposit net of a corresponding amount. The 1999-A Owner Trustee will have no
obligation with respect to or liability for following any such instruction by
the Servicer.
(h) On the Final Scheduled Distribution Date of any Class of Notes or the
Certificates, an additional payment to the Noteholders of such Class or the
Certificateholders of such Class, as the case may be, shall be made as and to
the extent required by Section 3.04(f).
Section 3.04 THE RESERVE FUND.
(a) ESTABLISHMENT OF THE RESERVE FUND.
(i) In order to assure that sufficient amounts to make required
distributions to Noteholders will be available, HTC LP and HTD LP shall
establish and maintain with and in the name of the 1999-A Indenture Trustee
an Eligible Account to be known as the "Reserve Fund", which will include
the money and other property deposited and held therein pursuant to Section
3.03 and this Section 3.04. Funds in the Reserve Fund shall be the
property of HTC LP and HTD LP and not the property of the 1999-A
Securitization Trust. If for any reason the Reserve Fund is no longer an
Eligible Account, the Servicer shall, with the assistance of the 1999-A
Indenture Trustee, promptly cause the Reserve Fund to be moved to another
institution or otherwise changed so that the Reserve Fund becomes an
Eligible Account. The 1999-A Indenture Trustee shall retain, subject to
the provisions of this 1999-A Securitization Trust Agreement and the other
1999-A Securitization Documents, all collections on or in respect of the
1999-A SUBI Interest transferred to the 1999-A Indenture Trustee, on behalf
of the Noteholders, in accordance with such provisions, in the 1999-A Note
Distribution Account or the Reserve Fund, as the case may be. The 1999-A
Indenture Trustee shall be deemed to have possession of such monies and
collections for purposes of Section 9-305 of the UCC of the jurisdiction in
which such property is located.
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(ii) On each Distribution Date, the 1999-A Owner Trustee shall
withdraw from the 1999-A SUBI Collection Account and deposit into the
Reserve Fund the amount allocated pursuant to clause (ix) of Section
3.03(c).
(iii) On each Distribution Date, the 1999-A Owner Trustee shall
distribute to HTC LP and HTD LP, to the extent thereof, (A) any net
investment income from investment of funds in the Reserve Fund and (B) any
amounts in excess of the Reserve Fund Requirement on such date.
(iv) For so long as the Reserve Fund is an Eligible Account, all
amounts held in the Reserve Fund shall, to the extent permitted by
applicable laws, rules and regulations, be invested by the 1999-A Indenture
Trustee, as directed in writing by the Servicer pursuant to Section 9.02(k)
of the 1999-A Servicing Supplement, in Eligible Investments (or, if the
Servicer fails to give such directions, as provided in Section 8.03(c) of
the Indenture); otherwise, such amounts shall be maintained in cash.
Earnings on investment of funds in the Reserve Fund shall be paid to HTC LP
and HTD LP on each Distribution Date, and any losses and any investment
expenses shall be charged against the funds on deposit therein. The 1999-A
Indenture Trustee shall incur no liability for the selection of investments
or for losses thereon absent its own negligence or willful misfeasance.
The 1999-A Indenture Trustee shall have no liability in respect of losses
incurred as a result of the liquidation of any investment prior to its
stated maturity date or the failure of the Servicer to provide timely
written investment directions.
(b) INITIAL DEPOSIT; DISTRIBUTIONS. On or prior to the Closing Date, HTC
LP and HTD LP shall deposit an amount equal to the Reserve Fund Initial Deposit
into the Reserve Fund. On the Closing Date, HTC LP shall deposit $- and HTD LP
shall deposit $-. Amounts on deposit in the Reserve Fund shall be supplemented
from time to time by the deposit therein of other funds as and to the extent
described in this 1999-A Securitization Trust Agreement and the other 1999-A
Securitization Documents. On each Distribution Date, the amounts on deposit in
the Reserve Fund shall be available for distribution as provided in Section 3.03
and, on each Distribution Date, if the amount on deposit in the Reserve Fund
(after giving effect to all deposits thereto or withdrawals therefrom on such
Distribution Date) is greater than the Reserve Fund Requirement and Excess
Interest Collections are not required to be deposited into the Reserve Fund
pursuant to Section 3.03(d), the 1999-A Indenture Trustee will distribute any
remaining amounts to HTC LP and HTD LP in the same proportion as the HTC LP
Retained 1999-A SUBI Certificate and the HTD LP Retained 1999-A SUBI Certificate
represent, respectively. Upon such distribution to HTC LP and HTD LP, neither
the Noteholders nor the Certificateholders will have any further rights in or
claims to such amounts.
(c) GRANT OF SECURITY INTEREST. Each of HTC LP and HTD LP hereby grant to
the 1999-A Indenture Trustee for the benefit of the Noteholders to secure the
obligations to the Noteholders pursuant to this 1999-A Securitization Trust
Agreement a security interest of all of their right, title and interest in the
Reserve Fund Property (including the Reserve Fund Initial Deposit) and the
proceeds thereof, and the 1999-A Indenture Trustee shall have all of the rights
of a secured party under the UCC with respect thereto, provided that all income
from the investment of funds in the Reserve Fund and the right to receive such
income are retained by HTC LP and HTD LP, and are not transferred, assigned or
otherwise conveyed to the 1999-A Indenture Trustee
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hereunder. All deposits and withdrawals from the Reserve Fund shall be made
only upon the terms and conditions of the 1999-A Securitization Documents.
(d) TERMINATION. Upon termination of the 1999-A Securitization Trust
pursuant to Section 7.01, any amounts on deposit in the Reserve Fund shall be
available for payment of any remaining amounts due to the Noteholders and for
payment of any remaining amounts due to the 1999-A Indenture Trustee and the
1999-A Owner Trustee, and, after payment of such amounts due, shall be paid to
HTC LP and HTD LP.
(e) CLAIMS. Amounts properly received by either HTC LP or HTD LP pursuant
to this 1999-A Securitization Trust Agreement shall be free of any claim of the
1999-A Securitization Trust, the 1999-A Indenture Trustee, the 1999-A Owner
Trustee, the Noteholders or the Certificateholders and shall not be available to
the 1999-A Indenture Trustee, the 1999-A Owner Trustee or the 1999-A
Securitization Trust for the purpose of making deposits to the Reserve Fund or
making payments to the Noteholders or Certificateholders, nor shall either HTC
LP or HTD LP be required to refund any amount properly received by it.
(f) FINAL SCHEDULED DISTRIBUTION DATE. On the respective Final Scheduled
Distribution Date, to the extent that the Class A-1 Note Balance, the Class A-2
Note Balance, the Class A-3 Note Balance, the Class A-4 Note Balance or the
Class B Note Balance has not been reduced to zero, the 1999-A Indenture Trustee
shall withdraw funds from the Reserve Fund, if available, in an amount equal to
the lesser of (i) the Class A-1 Note Balance, the Class A-2 Note Balance, the
Class A-3 Note Balance, the Class A-4 Note Balance or the Class B Note Balance,
as applicable, and (ii) the amount in the Reserve Fund, and shall pay such funds
to the Noteholders of such Classes of Notes.
(g) RESERVE FUND SECURITIES INTERMEDIARY. The 1999-A Owner Trustee hereby
confirms that (i) the 1999-A Owner Trustee is acting, with respect to its duties
under this Section 3.04, as a "securities intermediary" as defined in Section
8-102 of the UCC (in such capacity, the "Reserve Fund Securities Intermediary"),
(ii) the Reserve Fund Securities Intermediary has established the Reserve Fund
as a "securities account" as such term is defined in Section 8-501(a) of the
UCC, (iii) the Reserve Fund Securities Intermediary shall, subject to the terms
of this 1999-A Securitization Trust Agreement, treat the 1999-A Owner Trustee as
entitled to exercise the rights that comprise any financial asset credited to
the Reserve Fund, and (iv) all securities or other property underlying any
financial assets credited to the Reserve Fund shall be registered in the name of
the Reserve Fund Securities Intermediary, endorsed to the Reserve Fund
Securities Intermediary or in blank or credited to another securities account
maintained in the name of the Reserve Fund Securities Intermediary for the
benefit of 1999-A Indenture Trustee and in no case will any financial asset
credited to the Reserve Fund be registered in the name of any other person,
payable to the order of any other person, or specially endorsed to any other
person, except to the extent the foregoing have been specially endorsed by the
Transferor to the 1999-A Owner Trustee. The 1999-A Owner Trustee shall incur no
liability relating to any investments made pursuant to this Section 3.04 absent
its own negligence or willful misfeasance.
(h) FINANCIAL ASSETS ELECTION. The 1999-A Owner Trustee hereby agrees
that the Reserve Fund and each item of property (whether investment property,
financial asset, security or
18
instrument), other than cash, credited to the Reserve Fund shall be treated as a
"financial asset" within the meaning of Section 8-102(a)(9) of the UCC.
(i) ENTITLEMENT ORDERS. If at any time the Reserve Fund Securities
Intermediary shall receive an "entitlement order" (within the meaning of Section
8-102(a)(8) of the UCC) issued by the 1999-A Indenture Trustee and relating to
the Reserve Fund, the Reserve Fund Securities Intermediary shall comply with
such entitlement order without further consent by any other person. The 1999-A
Indenture Trustee hereby agrees only to issue entitlement orders at the written
direction of the Servicer. The Reserve Fund Securities Intermediary shall have
no obligation to act, and shall be fully protected in refraining from acting, in
respect of the financial assets credited to the Reserve Fund in the absence of
such an entitlement order.
(j) SUBORDINATION OF LIEN; WAIVER OF SET-OFF. If the 1999-A Owner Trustee
has or subsequently obtains a security interest in the Reserve Fund or any
security entitlement credited thereto by agreement, operation of law or
otherwise, the 1999-A Owner Trustee hereby agrees that such security interest
shall be subordinated to the security interests of HTC LP and HTD LP. The
financial assets and other items deposited to the Reserve Fund will not be
subject to deduction, set-off, banker's lien, or any other right in favor of any
person other than HTC LP and HTD LP; PROVIDED, HOWEVER, that, notwithstanding
anything herein to the contrary, the 1999-A Owner Trustee shall have a lien
senior to that of HTC LP and HTD LP for any and all amounts required for the
payment of the purchase price of a financial asset, which purchase has been
placed but not yet cleared or settled. Any such deductions shall not be deemed
to refer to deductions for payment of the purchase price in securities
transactions not yet settled or cleared.
(k) CONFLICTING ORDERS. The 1999-A Owner Trustee, in such capacity, has
not entered into and, until termination of this 1999-A Securitization Trust
Agreement, will not enter into any agreement with any other person relating to
the Reserve Fund or any financial assets credited thereto pursuant to which it
has agreed or will agree to comply with entitlement orders (as defined in
Section 8-102(a)(8) of the UCC) of such person. No financial asset will be
registered in the name of the 1999-A Owner Trustee, in such capacity, payable to
its order or specially endorsed to it, except to the extent such financial asset
has been endorsed to the Reserve Fund Securities Intermediary or in blank.
(l) PAYMENTS FOLLOWING TERMINATION OF TRUST. On each related Final
Scheduled Distribution Date and upon termination of the 1999-A Securitization
Trust pursuant to Section 7.01, all amounts on deposit in the Reserve Fund shall
be available (i) for payment of any remaining amounts due on such date to
reimburse unreimbursed Advances or pay accrued and unpaid compensation payable
to the Servicer through such date, (ii) for payment to the Noteholders and (iii)
for payment of any remaining amounts due to the 1999-A Owner Trustee, the 1999-A
Indenture Trustee or the Origination Trustee. Upon termination of the 1999-A
Securitization Trust pursuant to Section 7.01, after payment of such amounts
due, any amounts remaining on deposit in the Reserve Fund shall be paid to HTC
LP and HTD LP. Upon termination of the 1999-A Securitization Trust, the 1999-A
Owner Trustee shall release from the lien of this 1999-A Securitization Trust
Agreement the Reserve Fund and any financial assets held therein, and shall
execute any requisite filing under the UCC as provided by HTC LP and HTD LP to
evidence such release and the release of any security interest of the 1999-A
Securitization Trust or the 1999-A Owner Trustee therein.
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(m) The Reserve Fund Securities Intermediary undertakes to perform such
duties and only such duties as are specifically set forth in this Section 3.04.
The Reserve Fund Securities Intermediary, in such capacity, shall not have any
duties or responsibilities except those expressly set forth in this Section 3.04
or be a trustee for or have any fiduciary obligation to any party hereto.
(n) The duties and obligations of the Reserve Fund Securities
Intermediary, in such capacity, shall be determined solely by the express
provisions of this Section 3.04, and the Reserve Fund Securities Intermediary
shall take such action with respect to this Section 3.04 as it shall be directed
hereunder, and the Reserve Fund Securities Intermediary, in such capacity, shall
not be liable except for the performance of such duties and obligations as are
specifically set forth in this Section 3.04 and as specifically directed by the
1999-A Indenture Trustee, and no implied covenants or obligations shall be read
into this Section 3.04 against the Reserve Fund Securities Intermediary, the
permissive right of the Reserve Fund Securities Intermediary to do things
enumerated in this Section 3.04 shall not be construed as a duty, and, in the
absence of bad faith, negligence or willful misfeasance on the part of the
Reserve Fund Securities Intermediary, the Reserve Fund Securities Intermediary
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
the Reserve Fund Securities Intermediary conforming to the requirements of this
Section 3.04.
(o) The Reserve Fund Securities Intermediary, in such capacity, shall not
be liable for any error of judgment made in good faith by an officer or officers
of the Reserve Fund Securities Intermediary, acting as such, unless it shall be
determined that the Reserve Fund Securities Intermediary, or any such officer or
officers, was negligent in ascertaining the pertinent facts or otherwise acted
with negligence or willful misfeasance, and the Reserve Fund Securities
Intermediary shall not be liable with respect to any action taken or omitted to
be taken by it in good faith absent negligence or willful misfeasance in
accordance with any direction of the 1999-A Indenture Trustee given under this
1999-A Securitization Trust Agreement.
(p) None of the provisions of this 1999-A Securitization Trust Agreement
shall require the Reserve Fund Securities Intermediary to expend or risk its own
funds or otherwise to incur any liability, financial or otherwise, in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that it is
not assured of repayment of such funds or indemnity satisfactory to it against
such risk or liability.
(q) The Reserve Fund Securities Intermediary may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval or other paper or document in good faith
believed by it to be genuine and to have been signed or presented by the proper
party or parties.
(r) Whenever, in the administration of the provisions of this Section 3.04
the Reserve Fund Securities Intermediary shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering any action
to be taken hereunder, the Reserve Fund Securities Intermediary shall be
entitled to receive from each of HTC LP and HTD LP an
20
Officer's Certificate stating that the matter is established as fact and such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence, willful misfeasance or bad faith
on the part of the Reserve Fund Securities Intermediary, be deemed to be
conclusively proved and established, and such certificate, in the absence of
negligence or willful misfeasance on the part of the Reserve Fund Securities
Intermediary, shall be full warrant to the Reserve Fund Securities Intermediary
for any action taken, suffered or omitted by it under the provisions of this
Section 3.04 on the basis thereof.
(s) The Reserve Fund Securities Intermediary may consult with counsel and
the advice or any opinion of counsel shall be full and complete authorization
and protection in respect of any action taken or omitted by it hereunder in good
faith absent negligence or willful misfeasance and in accordance with such
advice or opinion of counsel.
(t) The Reserve Fund Securities Intermediary shall not be bound to make
any investigation into the facts or matters stated in any resolution, order,
certificate, statement, instrument, opinion, report, notice, request, consent,
entitlement order, approval or other paper or document.
(u) The Reserve Fund Securities Intermediary shall have no obligation to
invest or reinvest any cash held in the Reserve Fund in the absence of timely
and specific written investment direction from the Servicer. In no event shall
the Reserve Fund Securities Intermediary be liable for the selection of
investments or for investment losses incurred as a result of the liquidation of
any investment prior to its stated maturity or the failure of the Servicer to
provide timely written investment direction.
(v) The Reserve Fund Securities Intermediary may at any time resign by
giving 30 days prior written notice of resignation to the 1999-A Indenture
Trustee, HTC LP and HTD LP. Upon receiving such notice of resignation, the
1999-A Indenture Trustee shall promptly appoint a successor and, upon the
acceptance by the successor of such appointment, release the resigning Reserve
Fund Securities Intermediary from its obligations hereunder by written
instrument, a copy of which instrument shall be delivered to each of the 1999-A
Indenture Trustee, the resigning Reserve Fund Securities Intermediary and the
successor. If no successor shall have been so appointed and have accepted
appointment within 45 days after the giving of such notice of resignation, the
resigning Reserve Fund Securities Intermediary may petition any court of
competent jurisdiction for the appointment of a successor.
(w) Each of the parties (for itself and any person or entity claiming
through it) hereby releases, waives, discharges, exculpates and covenants not to
xxx the Reserve Fund Securities Intermediary for any action taken or omitted
under this Section 3.04 except to the extent caused by the Reserve Fund
Securities Intermediary's negligence, willful misfeasance or bad faith.
Anything in this 1999-A Securitization Trust Agreement to the contrary
notwithstanding, in no event shall the Reserve Fund Securities Intermediary be
liable for special, indirect or consequential loss or damage of any kind
whatsoever (including lost profits), even if the Reserve Fund Securities
Intermediary has been advised of the likelihood of such loss or damage (unless
so advised prior to taking any such action) and regardless of the form of
action.
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(x) The Servicer, in its capacity as such, shall indemnify, defend and
hold harmless the Reserve Fund Securities Intermediary and its officers,
directors, employees, representatives and agents, from and against, and
reimburse the Reserve Fund Securities Intermediary for, any and all claims,
expenses, obligations, liabilities, losses, damages, injuries (to person,
property or natural resources), penalties, stamp or other similar taxes,
actions, suits, judgments, reasonable costs and expenses (including reasonable
attorneys' and agents' fees and expenses) directly or indirectly relating to or
arising from claims against the Reserve Fund Securities Intermediary by reason
of its participation in the transactions contemplated by this Section 3.04,
except to the extent caused by the Reserve Fund Securities Intermediary's
negligence, willful misfeasance or bad faith. The provisions of this Section
3.04 shall survive the termination of this 1999-A Securitization Trust Agreement
or the earlier resignation or removal of the Reserve Fund Securities
Intermediary.
Section 3.05 STATEMENTS TO SECURITYHOLDERS.
(a) On each Determination Date, commencing in July 1999, the Servicer will
prepare and forward to the Origination Trustee, the 1999-A Owner Trustee and the
1999-A Indenture Trustee, and the 1999-A Owner Trustee will make available to
each Securityholder on each Distribution Date, a statement setting forth with
respect to the related Distribution Date or the related Collection Period, among
other things, the following:
(i) the Investor Percentage for such Collection Period, stated
separately for (x) Interest Collections and Loss Amounts, and (y) Principal
Collections;
(ii) the total amount being distributed to Noteholders and to
Certificateholders in such distribution;
(iii) the total amount being distributed to each Class of
Noteholders and the Certificateholders in such distribution;
(iv) the total amount of interest being distributed to each Class
of Noteholders and the Certificateholders in such distribution;
(v) the total amount of principal being distributed to each
Class of Noteholders and Certificateholders in such distribution;
(vi) the amount, if any, of Class A-1 Interest Carryover
Shortfall, Class A-2 Interest Carryover Shortfall, Class A-3 Interest
Carryover Shortfall, Class A-4 Interest Carryover Shortfall, Class B
Interest Carryover Shortfall and Certificate Interest Carryover Shortfall
included in such distribution;
(vii) the amount, if any, of the remaining unpaid Class A-1
Interest Carryover Shortfall, Class A-2 Interest Carryover Shortfall, Class
A-3 Interest Carryover Shortfall, Class A-4 Interest Carryover Shortfall,
Class B Interest Carryover Shortfall and Certificate Interest Carryover
Shortfall after giving effect to such distribution;
(viii) the Class A-1 Allocation Percentage, the Class A-2
Allocation Percentage, the Class A-3 Allocation Percentage, the Class A-4
Allocation Percentage, the Class B
22
Allocation Percentage, the Certificate Allocation Percentage and the
amount, if any, of the reimbursement of Class A-1 Charged-off Amounts,
Class A-1 Residual Value Loss Amounts, Class A-1 Additional Loss Amounts,
Class A-2 Charged-off Amounts, Class A-2 Residual Value Loss Amounts, Class
A-2 Additional Loss Amounts, Class A-3 Charged-off Amounts, Class A-3
Residual Value Loss Amounts, Class A-3 Additional Loss Amounts, Class A-4
Charged-off Amounts, Class A-4 Residual Value Loss Amounts, Class A-4
Additional Loss Amounts, Class B Charged-off Amounts, Class B Residual
Value Loss Amounts, Class B Additional Loss Amounts, Certificate
Charged-off Amounts, Certificate Residual Value Loss Amounts and
Certificate Additional Loss Amounts being included in such distribution;
(ix) the amount, if any, of the reimbursement of Class A-1 Note
Principal Loss Amounts, Class A-2 Note Principal Loss Amounts, Class A-3
Note Principal Loss Amounts, Class A-4 Note Principal Loss Amounts, Class B
Note Principal Loss Amounts and Certificate Principal Loss Amounts included
in such distribution;
(x) the amount, if any, of the aggregate of unreimbursed Class
A-1 Note Principal Loss Amounts, Class A-2 Note Principal Loss Amounts,
Class A-3 Note Principal Loss Amounts, Class A-4 Note Principal Loss
Amounts, Class B Note Principal Loss Amounts and Certificate Principal Loss
Amounts after giving effect to such distribution;
(xi) the amount, if any, of accrued Class A-1 Note Principal Loss
Interest Amounts, Class A-2 Note Principal Loss Interest Amounts, Class A-3
Note Principal Loss Interest Amounts, Class A-4 Note Principal Loss
Interest Amounts, Class B Note Principal Loss Interest Amounts and
Certificate Principal Loss Interest Amounts included in such distribution;
(xii) the amount, if any, of accrued and unpaid Class A-1 Note
Principal Loss Interest Amounts, Class A-2 Note Principal Loss Interest
Amounts, Class A-3 Note Principal Loss Interest Amounts, Class A-4 Note
Principal Loss Interest Amounts, Class B Note Principal Loss Interest
Amounts and Certificate Principal Loss Interest Amounts after giving effect
to such distribution;
(xiii) the amount, if any, of accrued and unpaid Class B Note
Principal Carryover Shortfall and Certificate Principal Carryover Shortfall
after giving effect to such distribution;
(xiv) the Investor Percentage of the 1999-A SUBI Servicing Fee
allocable to the 1999-A SUBI Interest for such Distribution Date and any
unpaid such amounts with respect to prior Distribution Dates;
(xv) the Note Balance, the Class A-1 Note Balance, the Class A-2
Note Balance, the Class A-3 Note Balance, the Class A-4 Note Balance, the
Class B Note Balance, the Certificate Balance, the Class A-1 Note Factor,
the Class A-2 Note Factor, the Class A-3 Note Factor, the Class A-4 Note
Factor, the Class B Note Factor and the Certificate Factor, each after
giving effect to such distribution;
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(xvi) the Required Amount, if any, included in such distribution;
(xvii) the Aggregate Net Investment Value as of the end of such
Collection Period;
(xviii) the amount on deposit in the Reserve Fund on such
Distribution Date, after giving effect to such distributions, the change in
such balance from the immediately preceding Distribution Date and the
Reserve Fund Requirement;
(xix) the amount of Payments Ahead on deposit in the 1999-A SUBI
Collection Account and representing Monthly Payments due in one or more
immediately subsequent Collection Periods and the change in such balance
from the immediately preceding Distribution Date;
(xx) the amount of Advances made in respect of such Collection
Period, the amount of Outstanding Advances on such Distribution Date and
the changes in such amount from the immediately preceding Distribution
Date; and
(xxi) the weighted average Lease Rate of the 1999-A Contracts in
the 1999-A SUBI for the immediately preceding Collection Period and the
Charge-off Rate and Delinquency Rate for each of the three immediately
preceding Collection Periods.
Each amount set forth pursuant to subclauses (ii) through (xv) above shall be
expressed as a dollar amount per $1,000 of original principal balance of a Note
or a Certificate. Any Securityholder may obtain a copy of any such statement,
of any Servicer's Certificate required pursuant to Section 10.01 of the 1999-A
Servicing Supplement, any annual report of Independent Accountants required
pursuant to Section 3.02 of the Servicing Agreement and Section 10.02 of the
1999-A Servicing Supplement or any annual Officer's Certificate required
pursuant to Section 3.03 of the Servicing Agreement and Section 10.03(a) of the
1999-A Servicing Supplement, upon written request to the 1999-A Indenture
Trustee at the Corporate Trust Office of the 1999-A Indenture Trustee or to the
1999-A Owner Trustee at the Corporate Trust Office of the 1999-A Owner Trustee,
as the case may be.
(b) Within a reasonable period of time after the end of each calendar
year, but not later than the latest date permitted by law, the 1999-A Indenture
Trustee shall mail to each Person who at any time during such calendar year
shall have been a Noteholder a statement or statements which in the aggregate
contain the sum of the amounts set forth in clauses (ii) through (xiii) and (xv)
through (xix) of Section 3.05(a) for such calendar year or, if such Person shall
have been a Noteholder during a portion of such calendar year, for the
applicable portion of such year, for the purposes of such Noteholder's
preparation of federal income tax returns. In addition, the Servicer shall
furnish to the 1999-A Indenture Trustee for distribution to such Person at such
time any other information reasonably necessary under applicable law for the
preparation of such income tax returns.
(c) Within a reasonable period of time after the end of each calendar
year, but not later than the latest date permitted by law, the 1999-A Owner
Trustee shall mail to each Person who at any time during such calendar year
shall have been a Certificateholder a statement or statements which in the
aggregate contain the sum of the amounts set forth in clauses (ii) through
(xiii) and
24
(xv) through (xix) of Section 3.05(a) for such calendar year or, if such Person
shall have been a Certificateholder during a portion of such calendar year, for
the applicable portion of such year, for the purposes of such
Certificateholder's preparation of federal income tax returns. In addition, the
Servicer shall furnish to the 1999-A Owner Trustee for distribution to such
Person at such time any other information reasonably necessary under applicable
law for the preparation of such income tax returns.
ARTICLE FOUR
CERTIFICATES
Section 4.01 THE CERTIFICATES.
(a) Certificates shall be issued which shall be substantially in the form
of Exhibit A to this 1999-A Securitization Trust Agreement. The Certificates
shall be issuable in minimum denominations of $[_________] and integral
multiples of $[________] in excess thereof. The Certificates shall be executed
by the 1999-A Owner Trustee on behalf of the 1999-A Securitization Trust by
manual or facsimile signature of an officer or other signatory of the 1999-A
Owner Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when the signatures were affixed, authorized
to sign on behalf of the 1999-A Owner Trustee shall be a valid and binding
obligation of the 1999-A Securitization Trust, notwithstanding that such
individuals or any of them ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of such Certificates. All Certificates shall be dated the date of
their authentication.
(b) No Certificate shall be entitled to any benefit under this 1999-A
Securitization Trust Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication substantially in the
form set forth in Exhibit A to this 1999-A Securitization Trust Agreement,
executed by the 1999-A Owner Trustee or an authentication agent appointed for
such purpose by the 1999-A Owner Trustee, by manual or facsimile signature.
Such certificate of authentication upon any Certificate shall be the sole
conclusive evidence that such Certificate has been duly authenticated and
delivered under this 1999-A Securitization Trust Agreement. The 1999-A Owner
Trustee is hereby authorized to appoint an authentication agent to execute any
or all such certificates of authentication on behalf of the 1999-A Owner
Trustee.
Section 4.02 AUTHENTICATION AND DELIVERY OF CERTIFICATES. In exchange
for, and simultaneously with the sale, assignment and transfer to the 1999-A
Owner Trustee of the 1999-A SUBI Interest (exclusive of all monies and
payments due or payable under the Residual Value Insurance Policy or other
residual value insurance policies relating to the 1999-A Contracts and
1999-A Leased Vehicles and the right to receive such amounts), the 1999-A
SUBI Certificates and the other assets of the 1999-A Securitization Trust,
HTC LP and HTD LP shall receive the Certificates and the Notes.
Section 4.03 NO TRANSFER OF THE CERTIFICATES. Subject to Section 5.03,
the Certificates shall be owned by HTC LP and HTD LP and may not be transferred,
as provided by Section 5.06.
Section 4.04 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (i)
any mutilated Certificate is surrendered to the 1999-A Owner Trustee or the
1999-A Owner Trustee receives
25
evidence to its satisfaction of the destruction, loss or theft of a Certificate
and (ii) there is delivered to the 1999-A Owner Trustee such security or
indemnity as may be required by the 1999-A Owner Trustee to save itself and the
1999-A Securitization Trust harmless, then, in the absence of notice that such
Certificate has been acquired by a bona fide purchaser, the 1999-A Owner Trustee
on behalf of the 1999-A Securitization Trust shall execute and the 1999-A Owner
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 4.04, the 1999-A Owner Trustee may require the
payment by the Holder of a sum sufficient to cover any tax or governmental
charges that may be imposed in relation thereto. Any duplicate Certificate
issued pursuant to this Section 4.04 shall constitute complete and indefeasible
evidence of ownership in the 1999-A Securitization Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time, and any such lost, stolen or destroyed Certificate shall, upon
issuance of any such duplicate Certificate, be null, void and of no effect.
Section 4.05 PERSONS DEEMED OWNERS. The 1999-A Owner Trustee shall treat
both HTC LP and HTD LP as the owners of the Certificates for the purpose of
receiving distributions pursuant to Section 3.03 and for all other purposes
whatsoever.
ARTICLE FIVE
THE TRANSFERORS
Section 5.01 REPRESENTATIONS OF THE TRANSFERORS. Each of HTC LP and HTD
LP hereby make the following representations on which the 1999-A Owner Trustee
relies in accepting the 1999-A SUBI Interest and the 1999-A SUBI Certificates,
and executing and authenticating the Certificates and on which the 1999-A
Indenture Trustee relies in authenticating the Notes. The representations speak
as of the execution and delivery of this 1999-A Securitization Trust Agreement,
but shall survive the sale, transfer and assignment of the 1999-A SUBI Interest
and the 1999-A SUBI Certificates, to the 1999-A Owner Trustee and the pledge
thereof to the 1999-A Indenture Trustee pursuant to the Indenture.
(a) ORGANIZATION AND GOOD STANDING. Each of HTC LP and HTD LP is
a limited partnership validly organized and existing and in good standing
under the laws of the State of Delaware, with power and authority to own
its properties and to conduct its business as such properties are currently
owned and such business is presently conducted, and had at all relevant
times and has power, authority and legal right to acquire, own and sell
each of the HTC LP 1999-A SUBI Interest, the HTC LP 1999-A SUBI
Certificate, the HTD LP 1999-A SUBI Interest and HTD LP 1999-A SUBI
Certificate.
(b) DUE REGISTRATION. Each of HTC LP and HTD LP is duly
registered as a foreign limited partnership in good standing, and has
obtained all necessary licenses and approvals in all jurisdictions in which
the ownership or lease of property or the conduct of its business requires
such qualifications, except where the failure to so qualify or to have
obtained such licenses and approvals would not have a material adverse
effect on the earnings or business affairs of either HTC LP or HTD LP.
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(c) POWER AND AUTHORITY. Each of HTC LP and HTD LP has the power
and authority to execute and deliver this 1999-A Securitization Trust
Agreement and to carry out its terms, each of HTC LP and HTD LP has the
power and authority to sell and assign the property to be sold and assigned
to and deposited with the 1999-A Owner Trustee as part of the 1999-A
Securitization Trust and has duly authorized such sale and assignment to
the 1999-A Owner Trustee by all necessary partnership action; and the
execution, delivery and performance of this 1999-A Securitization Trust
Agreement have been duly authorized by HTC LP and HTD LP by all necessary
partnership action.
(d) VALID SALE, BINDING OBLIGATIONS. This 1999-A Securitization
Trust Agreement (i) evidences a valid sale, transfer and assignment of the
HTC LP 1999-A SUBI Certificate and the HTC LP 1999-A SUBI Interest
evidenced thereby and the HTD LP 1999-A SUBI Certificate and the HTD LP
1999-A SUBI Interest evidenced thereby, exclusive of all monies and
payments due or payable under the Residual Value Insurance Policy or
other residual value insurance policies relating to the 1999-A Contracts
and 1999-A Leased Vehicles and the right to receive such amounts,
enforceable against creditors of and purchasers from HTC LP and HTD LP;
and (ii) constitutes a legal, valid and binding obligation of each of
HTC LP and HTD LP enforceable in accordance with its terms, except as
enforceability may be subject to or limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights in general and by general principles of equity,
regardless of whether such enforceability shall be considered in a
proceeding in equity or at law.
(e) NO VIOLATION. The execution, delivery and performance by
each of HTC LP and HTD LP of this 1999-A Securitization Trust Agreement and
the consummation of the transactions contemplated by this 1999-A
Securitization Trust Agreement and the fulfillment of the terms of this
1999-A Securitization Trust Agreement do not conflict with, result in any
breach of any of the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the certificates of
limited partnership or limited partnership agreements of each of HTC LP or
HTD LP, or conflict with or violate any of the material terms and
provisions of, or constitute (with or without notice or lapse of time) a
default under, any indenture, agreement or other instrument to which either
HTC LP or HTD LP are a party or by which they shall be bound; nor result in
the creation or imposition of any Lien upon any of the properties of HTC LP
or HTD LP pursuant to the terms of any such indenture, agreement or other
instrument (other than this 1999-A Securitization Trust Agreement); nor
violate any law or, to the best of HTC LP's and HTD LP's knowledge, any
order, rule or regulation applicable to HTC LP or HTD LP, as the case may
be, of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over HTC
LP or HTD LP, as the case may be, or their properties; in each case which
breach, default, conflict, lien or violation would have a material adverse
effect on the earnings or business affairs of HTC LP or HTD LP.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best of HTC LP's and HTD LP's knowledge, threatened,
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over HTC LP or HTD LP or
its properties: (i) asserting the invalidity of this 1999-A Securitization
Trust Agreement, the Notes or the Certificates, (ii) seeking to prevent the
27
issuance of the Notes or the Certificates or the consummation of any of the
transactions contemplated by this 1999-A Securitization Trust Agreement,
(iii) seeking any determination or ruling that could reasonably be expected
to materially and adversely affect the performance by HTC LP or HTD LP of
their obligations under, or the validity or enforceability of, this 1999-A
Securitization Trust Agreement, the Notes or the Certificates or (iv)
relating to HTC LP or HTD LP that could reasonably be expected to adversely
affect the federal income tax attributes of the Notes.
(g) TITLE TO THE 1999-A SUBI CERTIFICATES. Prior to the
transfer pursuant to this 1999-A Securitization Trust Agreement, each of
HTC LP and HTD LP, respectively, had good title to, and was the sole legal
and beneficial owner of, the HTC LP 1999-A SUBI Certificate and the HTD LP
1999-A SUBI Certificate, respectively, free and clear of Liens, except as
provided for in the Backup Security Agreement.
Section 5.02 LIABILITY OF THE TRANSFERORS; INDEMNITIES. HTC LP [and HTD
LP] agree to be, and shall be, liable without limitation for all liabilities
(including taxes), contracts, expenses, indemnity payments and other charges
of the 1999-A Securitization Trust.
Section 5.03 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF, THE TRANSFERORS; CERTAIN LIMITATIONS.
(a) Any Person (i) into which either HTC LP or HTD LP may be merged or
consolidated, (ii) which may result from any merger, conversion or consolidation
to which either HTC LP or HTD LP shall be a party or (iii) which may succeed to
all or substantially all of the business of either HTC LP or HTD LP, shall be
the successor to HTC LP or HTD LP under this 1999-A Securitization Trust
Agreement without the execution or filing of any document or any further act on
the part of any of the parties to this 1999-A Securitization Trust Agreement,
except that if either HTC LP or HTD LP in any of the foregoing cases is not the
surviving entity, then the surviving entity shall execute an agreement of
assumption to perform every obligation of either HTC LP or HTD LP either
generally or specifically as provided herein. HTC LP and HTD LP, as the case
may be, shall provide notice of any merger, consolidation or succession pursuant
to this Section 5.03 to each Rating Agency.
(b) (i) Subject to the limitations set forth in Sections 5.03(b)(ii) and
5.03(c) the purpose of each of HTC LP and HTD LP shall be to engage in any
lawful activity for which a limited partnership may be formed under the laws of
the State of Delaware other than the practice of a profession permitted to be
operated through a limited partnership under laws of the State of Delaware.
(ii) Notwithstanding Section 5.03(b)(i) above, the purpose of
each of HTC LP and HTD LP shall be limited to the following purposes and
activities incidental to and necessary or convenient to accomplish the
following purposes:
(A)to act as settlor or grantor of one or more
securitization trusts formed pursuant to a trust agreement or other
agreement for the purpose of acquiring
28
interests in the Origination Trust, which securitization trust may
issue certificates of beneficial interest in the assets of such
securitization trust;
(B)to acquire, own, hold, sell, transfer, convey, dispose
of, pledge, assign, borrow money against, finance, refinance or
otherwise deal with, publicly or privately and whether with unrelated
third parties or with affiliated entities, beneficial interests in the
Origination Trust, including any undivided trust interests or special
units of beneficial interest created with respect to the Origination
Trust, and certificates of the securitization trust;
(C)to loan or otherwise invest funds received as a result of
HTC LP's or HTD LP's beneficial interest in the Origination Trust or
certificates in the securitization trust and any other income, as
determined by the general partner of HTC LP or HTD LP, as applicable,
from time to time;
(D)to borrow money other than pursuant to clause (C) above,
but only to the extent that any such borrowing is permitted by the
terms of the transactions contemplated by clauses (A) and (B) above;
and
(E)to engage in any lawful act or activity and to exercise
any powers permitted to limited partnerships organized under Delaware
law that are incidental to and necessary or convenient for the
accomplishment of the foregoing purposes.
(c) Notwithstanding any other provision of this Section 5.03 and any
provision of law, neither HTC LP nor HTD LP nor their general partners, on
behalf of HTC LP and HTD LP, shall do any of the following:
(i) engage in any business or activity other than as set forth
in Section 5.03(b);
(ii) without the affirmative vote of a majority of the members of
the Board of Directors of the manager of HTC LP's or HTD LP's general
partners (which must include the affirmative vote of all Independent
Directors of the manager of HTC LP's or HTD LP's general partner, as
required by the limited partnership agreement of HTC LP or HTD LP, as the
case may be), (A) dissolve or liquidate, in whole or in part, or institute
proceedings to be adjudicated bankrupt or insolvent, (B) consent to the
institution of bankruptcy or insolvency proceedings against HTC LP or HTD
LP, as applicable, (C) file a petition seeking or consent to reorganization
or relief under any applicable federal or state law relating to bankruptcy,
(D) consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of HTC LP or HTD LP or
all or substantially all of the property of HTC LP or HTD LP, as
applicable, (E) make a general assignment for the benefit of creditors, (F)
admit in writing HTC LP's or HTD LP's, as applicable, inability to pay its
debts generally as they become due, or (G) take any corporate action or
partnership action in furtherance of the actions set forth in clauses (A)
through (F) above; PROVIDED, HOWEVER, that no general partner shall in any
event consent to the institution of bankruptcy or insolvency proceedings
against the either HTC LP or HTD LP so long as HTC LP or HTD LP, as
applicable, is solvent; or
29
(iii) without the affirmative vote of a majority of the members of
the Board of Directors of the manager of HTC LP's or HTD LP's general
partners (which must include the affirmative vote of all Independent
Directors of the manager of HTC LP's or HTD LP's general partners, as
required by the limited partnership agreement of HTC LP or HTD LP), merge
or consolidate with any other limited partnership, corporation, company or
entity or sell all or substantially all of the assets of HTC LP or HTD LP,
as applicable, or acquire all or substantially all of the assets or
partnerships interests or capital stock or other ownership interest of any
other limited partnership, corporation, company or entity (except for the
acquisition of beneficial interests in the Origination Trust and the sale,
transfer, conveyance, disposition, pledge, assignment, financing and
refinancing of, or otherwise dealing with, beneficial interests in the
Origination Trust in accordance with the terms of Section 5.03(b)(ii),
which shall not be otherwise restricted by this Section 5.03(c)).
Section 5.04 LIMITATION ON LIABILITY OF THE TRANSFERORS AND OTHERS. Each
of and any director, officer, employee or agent of HTC LP and HTD LP may rely in
good faith on the advice of counsel or on any document of any kind, PRIMA FACIE
properly executed and submitted by any Person with respect to any matters
arising under this 1999-A Securitization Trust Agreement.
Section 5.05 THE TRANSFERORS MAY OWN NOTES. Each of HTC LP and HTD LP
and each of their respective Affiliates may in its individual or any other
capacity become the owner or pledgee of Notes with the same rights as it would
have if it were not HTC LP or HTD LP or such an Affiliate thereof except as
otherwise specifically provided in the definition of the term "Noteholder".
Notes so owned by or pledged to HTC LP or HTD LP or such Affiliate shall have an
equal and proportionate benefit under the provisions of this 1999-A
Securitization Trust Agreement, without preference, priority or distinction as
among all of the Notes except as otherwise specifically provided in the
definition of the term "Noteholder". Each of HTC LP and HTD LP, as the case may
be, will give notice to each Rating Agency if it becomes aware that any of its
Affiliates shall at any time become the owner or pledgee of Notes.
Section 5.06 NO TRANSFER. On behalf of themselves and their successors
and assigns, HTC LP and HTD LP hereby covenant that they will not transfer,
pledge or assign to any Person the Certificates or any part of their right to
receive any Excess Interest Collections pursuant to Section 3.03(d) except as
expressly set forth in the 1999-A SUBI Supplement.
Section 5.07 TAX MATTERS PARTNER. If at any time the 1999-A
Securitization Trust is treated as a partnership for tax purposes, each of HTC
LP and HTD LP shall act as "Tax Matters Partner" (i) to represent the partners
before taxing authorities or courts of competent jurisdiction in any tax matters
affecting the 1999-A Securitization Trust as a tax partnership and (ii) to
execute any agreements or other documents relating to or affecting such tax
matters, including agreements or documents binding the partners with respect to
such tax matters or otherwise affecting their rights, including extending the
statute of limitations for assessment of tax deficiencies and adjusting the
1999-A Securitization Trust's federal, state or local tax returns. In the event
of such recharacterization, each of HTC LP and HTD LP shall provide written
notice of such recharacterization to the 1999-A Owner Trustee. Neither HTC LP
nor HTD LP shall be liable to the 1999-A Securitization Trust or to any
Noteholder for any action taken or omitted by
30
HTC LP or HTD LP with regard to such tax matters or otherwise as a result of its
holding the position of Tax Matters Partner.
ARTICLE SIX
THE 1999-A OWNER TRUSTEE
Section 6.01 DUTIES OF 1999-A OWNER TRUSTEE.
(a) The 1999-A Owner Trustee (both prior to and after the occurrence of a
1999-A Servicer Termination Event under the Servicing Agreement and the 1999-A
Servicing Supplement) undertakes to perform such duties and only such duties as
are specifically set forth in this 1999-A Securitization Trust Agreement.
(b) The 1999-A Owner Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the 1999-A Owner Trustee that shall be specifically
required to be furnished pursuant to any provision of this 1999-A Securitization
Trust Agreement, shall examine them to determine whether they conform on their
face to the requirements of this 1999-A Securitization Trust Agreement.
(c) No provision of this 1999-A Securitization Trust Agreement shall be
construed to relieve the 1999-A Owner Trustee from liability for its own
negligent action, its own negligent failure to act, its own bad faith or its own
willful misfeasance; PROVIDED, HOWEVER, that
(i) the duties and obligations of the 1999-A Owner Trustee shall
be determined solely by the express provisions of this 1999-A
Securitization Trust Agreement, the 1999-A Owner Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this 1999-A Securitization Trust Agreement, no
implied covenants or obligations shall be read into this 1999-A
Securitization Trust Agreement against the 1999-A Owner Trustee, the
permissive right of the 1999-A Owner Trustee to do things enumerated in
this 1999-A Securitization Trust Agreement shall not be construed as a duty
and, in the absence of bad faith, negligence or willful misfeasance on the
part of the 1999-A Owner Trustee, the 1999-A Owner Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
1999-A Owner Trustee and conforming to the requirements of this 1999-A
Securitization Trust Agreement;
(ii) the 1999-A Owner Trustee shall not be personally liable for
an error of judgment made in good faith by a Responsible Officer, unless it
shall be proved that the 1999-A Owner Trustee was negligent in performing
its duties in accordance with the terms of this 1999-A Securitization Trust
Agreement; and
(iii) the 1999-A Owner Trustee shall not be personally liable with
respect to any action taken or suffered or omitted to be taken in good
faith absent negligence or willful misfeasance in accordance with the
direction of the 1999-A Indenture Trustee (and, after payment in full of
the Notes, HTC LP and HTD LP) relating to the time, method and place of
conducting any proceeding for any remedy available to the 1999-A Owner
Trustee or exercising any trust or power conferred upon the Owner Trustee,
under
31
this 1999-A Securitization Trust Agreement, the Origination Trust Agreement
or the 1999-A SUBI Supplement.
(d) The 1999-A Owner Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of any of
its duties under this 1999-A Securitization Trust Agreement or in the exercise
of any of its rights or powers if there shall be reasonable grounds for
believing that it is not assured of the repayment of such funds or indemnity
satisfactory to it against such risk or liability.
(e) All information obtained by the 1999-A Owner Trustee regarding the
Lessees and the 1999-A Contracts, whether upon the exercise of its rights under
this 1999-A Securitization Trust Agreement or any other 1999-A Securitization
Document, shall be maintained by the 1999-A Owner Trustee in confidence and
shall not be disclosed to any other Person, unless such disclosure is required
by any applicable law or regulation or pursuant to subpoena.
(f) Pursuant to Sections 8.01 and 8.02 of the 1999-A Servicing Supplement,
if the 1999-A Owner Trustee discovers that a representation or warranty with
respect to a 1999-A Contract was incorrect as of the time specified with respect
to such representation and warranty and such incorrectness materially and
adversely affects such 1999-A Contract, the 1999-A Owner Trustee shall give
prompt written notice to the Servicer and the Origination Trustee of such
incorrectness.
Section 6.02 CERTAIN MATTERS AFFECTING THE 1999-A OWNER TRUSTEE.
Except as otherwise provided in Section 6.01:
(i) the 1999-A Owner Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document believed by it in good faith to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the 1999-A Owner Trustee may consult with counsel and any
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it under this
1999-A Securitization Trust Agreement in good faith absent negligence or
willful misfeasance and in accordance with such Opinion of Counsel;
(iii) the 1999-A Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this 1999-A
Securitization Trust Agreement or the Origination Trust Agreement, as
supplemented by the 1999-A SUBI Supplement, or to institute, conduct or
defend any litigation under or in relation to this 1999-A Securitization
Trust Agreement or the Origination Trust Agreement, as supplemented by the
1999-A SUBI Supplement, at the request, order or direction of the 1999-A
Indenture Trustee, HTC LP or HTD LP, unless the Certificateholders,
Noteholders, the 1999-A Indenture Trustee, HTC LP or HTD LP shall have
offered to the 1999-A Owner Trustee reasonable security or indemnity
against the costs, expenses and liabilities that may be incurred therein or
thereby;
32
(iv) the 1999-A Owner Trustee shall not be personally liable for
any action taken, suffered or omitted by it in good faith absent negligence
or willful misfeasance and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this 1999-A
Securitization Trust Agreement; and
(v) the 1999-A Owner Trustee may execute any of the trusts or
powers under this 1999-A Securitization Trust Agreement or perform any
duties under this 1999-A Securitization Trust Agreement either directly or
by or through agents or attorneys or a custodian; PROVIDED, HOWEVER, that
the 1999-A Owner Trustee shall remain liable for performance of its duties
as set forth in Section 6.01.
Section 6.03 1999-A OWNER TRUSTEE NOT LIABLE FOR NOTES, CERTIFICATES OR
LEASES. The 1999-A Owner Trustee shall make no representations as to the
validity, enforceability or sufficiency of this 1999-A Securitization Trust
Agreement, the Indenture, the Notes, the Certificates (other than the execution
by the 1999-A Owner Trustee on behalf of the 1999-A Securitization Trust of this
1999-A Securitization Trust Agreement and the authentication of the
Certificates), the 1999-A SUBI Interest or the 1999-A SUBI Certificates. The
1999-A Owner Trustee shall at no time have any responsibility or liability (i)
for or with respect to the legality, validity and enforceability of the
Indenture, the Notes, the 1999-A SUBI Interest, the 1999-A SUBI Certificates,
any 1999-A Contract, any ownership interest in any 1999-A Leased Vehicle or the
maintenance of any such ownership interest, or (ii) for or with respect to the
efficacy of the 1999-A Securitization Trust or its ability to generate the
payments to be distributed to the Noteholders or the Certificateholders under
this 1999-A Securitization Trust Agreement, including the validity of (A) the
assignment of the 1999-A SUBI Interest and the 1999-A SUBI Certificates to the
1999-A Securitization Trust or (B) any intervening assignment; the existence,
condition, location and ownership of any 1999-A Contract or 1999-A Leased
Vehicle; the existence and enforceability of the physical damage or credit life
or credit disability insurance; the existence and contents of any 1999-A
Contract, any computer or other record of any 1999-A Contract or the
completeness of any 1999-A Contract; the performance or enforcement of any
Lease; the compliance by HTC LP or HTD LP with any covenant or the breach by HTC
LP or HTD LP of any warranty or representation made under this 1999-A
Securitization Trust Agreement or in any related document and the accuracy of
any such warranty or representation; the acts or omissions or the Servicer; or
any action or failure to act by the 1999-A Owner Trustee in good faith absent
negligence or willful misfeasance taken at the instruction of the Servicer;
PROVIDED, HOWEVER, that the foregoing shall not relieve the 1999-A Owner Trustee
of its obligation to perform its duties under this 1999-A Securitization Trust
Agreement. Except with respect to a claim based on the failure of the 1999-A
Owner Trustee to perform its duties under this 1999-A Securitization Trust
Agreement or based on the 1999-A Owner Trustee's willful misfeasance, bad faith
or negligence, no recourse shall be had for any claim based on any provision of
this 1999-A Securitization Trust Agreement, the Certificates, the 1999-A SUBI
Interest, the 1999-A SUBI Certificates or any assignment thereof against the
institution serving as 1999-A Owner Trustee in its individual capacity. The
1999-A Owner Trustee shall not have any personal obligation, liability or duty
whatsoever to any Certificateholder, any Noteholder, the 1999-A Indenture
Trustee, HTC LP, HTD LP or any other Person with respect to any such claim, and
any such claim shall be asserted solely against the 1999-A Securitization Trust
or any indemnitor who shall furnish indemnity as provided in this Securitization
Trust Agreement. The 1999-A Owner Trustee shall not be accountable for the use
or application by HTC LP or HTD
33
LP of any of the Notes or the Certificates or the proceeds of the Notes or the
Certificates, or for the use application of any funds paid to the Servicer in
respect of the 1999-A SUBI Interest or the 1999-A SUBI Certificates.
Section 6.04 1999-A OWNER TRUSTEE MAY OWN SECURITIES. The 1999-A Owner
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Notes or the owner of the Certificates with the same rights as it
would have if it were not 1999-A Owner Trustee.
Section 6.05 1999-A OWNER TRUSTEE'S FEES AND EXPENSES. The 1999-A Owner
Trustee shall be entitled to reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust) for all services rendered by it in the execution of the trusts created by
this 1999-A Securitization Trust Agreement and in the exercise and performance
of any of the powers and duties of the 1999-A Owner Trustee under this 1999-A
Securitization Trust Agreement, and to payment or reimbursement upon its request
for all reasonable expenses, disbursements and advances incurred or made by the
1999-A Owner Trustee in its capacity as 1999-A Owner Trustee in accordance with
any of the provisions of this 1999-A Securitization Trust Agreement (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from its negligence, willful misfeasance or
bad faith or that is the responsibility of the 1999-A Indenture Trustee, the
Noteholders, the Certificateholders, HTC LP or HTD LP under this 1999-A
Securitization Trust Agreement or any Securitization Document. Such
compensation and reimbursement shall be paid as set forth in Sections 3.03(c)
and 3.03(g). Additionally, HTC LP or HTD LP, pursuant to Section 6.02(a)(iii),
may agree to indemnify the 1999-A Owner Trustee under certain circumstances and,
as set forth in this 1999-A Securitization Agreement, will be liable for any
unpaid compensation and reimbursement which is not otherwise paid pursuant to
this Section 6.05.
Section 6.06 ELIGIBILITY REQUIREMENTS FOR 1999-A OWNER TRUSTEE. The
1999-A Owner Trustee under this 1999-A Securitization Trust Agreement shall at
all times: (a) be a national banking association or corporation having its
corporate trust office in the same State as the location of the Corporate Trust
Office of the 1999-A Owner Trustee as specified in this 1999-A Securitization
Trust Agreement; (b) be organized and doing business under the laws of such
State or the United States; (c) be authorized under such laws to exercise
corporate trust powers; (d) have a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and (e) have a long-term deposit rating no lower than Baa3 by
Moody's, so long as Xxxxx'x is a Rating Agency, [___] by Standard & Poor's, so
long as Standard & Poor's is a Rating Agency, [____] by Fitch, so long as Fitch
is a Rating Agency, or be otherwise acceptable to each Rating Agency, as
evidenced by a letter to such effect from each of them.
If the 1999-A Owner Trustee 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 6.06, 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. If at any time the 1999-A Owner Trustee shall cease to be eligible
in accordance with the provisions of this Section 6.06, the 1999-A Owner Trustee
shall resign immediately in the manner and with the effect specified in Section
6.07.
34
Section 6.07 RESIGNATION OR REMOVAL OF 1999-A OWNER TRUSTEE.
(a) RESIGNATION. The 1999-A Owner Trustee may at any time resign and be
discharged from the trusts created by this 1999-A Securitization Trust Agreement
by giving written notice thereof to the Transferor. Upon receiving such notice
of resignation, HTC LP and HTD LP shall promptly appoint a successor 1999-A
Owner Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning 1999-A Owner Trustee and one copy to the
successor 1999-A Owner Trustee. If no successor 1999-A Owner Trustee shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning 1999-A Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor 1999-A
Owner Trustee.
(b) REMOVAL. If at any time the 1999-A Owner Trustee shall cease to be
eligible in accordance with the provisions of Section 6.06 and shall fail to
resign after written request therefor by HTC LP and HTD LP, or if at any time
the 1999-A Owner Trustee shall be legally unable to act, or shall be adjudged a
bankrupt or insolvent, or a receiver of the 1999-A Owner Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the 1999-A Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then HTC LP and HTD LP may jointly
remove the 1999-A Owner Trustee. If HTC LP and HTD LP shall remove the 1999-A
Owner Trustee under the authority of the immediately preceding sentence, HTC LP
and HTD LP shall promptly appoint a successor 1999-A Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
1999-A Owner Trustee so removed and one copy to the successor 1999-A Owner
Trustee, and payment of all fees owed to the outgoing 1999-A Owner Trustee.
(c) EFFECTIVE DATE OF RESIGNATION OR REMOVAL. Any resignation or removal
of the 1999-A Owner Trustee and appointment of a successor 1999-A Owner Trustee
pursuant to any of the provisions of this Section 6.07 shall not become
effective until acceptance of appointment by the successor 1999-A Owner Trustee
as provided in Section 6.08. The Servicer shall give the 1999-A Indenture
Trustee and each Rating Agency notice of any such resignation or removal of the
1999-A Owner Trustee and appointment and acceptance of a successor 1999-A Owner
Trustee.
Section 6.08 SUCCESSOR 1999-A OWNER TRUSTEE. Any successor 1999-A Owner
Trustee appointed as provided in Section 6.07 shall execute, acknowledge and
deliver to its predecessor 1999-A Owner Trustee, to HTC LP and to HTD LP, an
instrument accepting such appointment under this 1999-A Securitization Trust
Agreement, and thereupon the resignation or removal of the predecessor 1999-A
Owner Trustee shall become effective and such successor 1999-A Owner Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor under this 1999-A
Securitization Trust Agreement, with like effect as if originally named as
1999-A Owner Trustee. The predecessor 1999-A Owner Trustee shall deliver to the
successor 1999-A Owner Trustee all documents and statements held by it under
this 1999-A Securitization Trust Agreement; and HTC LP, HTD LP and the
predecessor 1999-A Owner Trustee shall execute and deliver such instruments and
do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor 1999-A Owner Trustee all such rights,
powers, duties and obligations. No successor 1999-A Owner Trustee shall accept
appointment as provided in this Section 6.08 unless at the time of such
acceptance such successor 1999-A Owner Trustee
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shall be eligible under the provisions of Section 6.06. Upon acceptance by a
successor 1999-A Owner Trustee of its appointment as provided in this Section
6.08, the Servicer shall cause notice of the appointment of such successor
1999-A Owner Trustee under this 1999-A Securitization Trust Agreement to be
given by mail to the 1999-A Indenture Trustee and each Rating Agency. If the
Servicer fails to mail or cause to be mailed such notice within ten days after
acceptance of appointment by the successor 1999-A Owner Trustee, the successor
1999-A Owner Trustee shall cause such notice to be mailed at the expense of the
Servicer.
Section 6.09 MERGER OR CONSOLIDATION OF 1999-A OWNER TRUSTEE. Any
corporation (i) into which the 1999-A Owner Trustee may be merged or
consolidated, (ii) which may result from any merger, conversion or consolidation
to which the 1999-A Owner Trustee shall be a party, or (iii) which may succeed
to the corporate trust business of the 1999-A Owner Trustee, shall be the
successor of the 1999-A Owner Trustee hereunder, provided such corporation shall
be eligible pursuant to Section 6.06, 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, except that if the 1999-A Owner Trustee
in any of the foregoing cases is not the surviving entity, then the surviving
entity shall execute an agreement of assumption to perform every obligation of
the 1999-A Owner Trustee, either generally or particularly as provided herein.
Notice of any such event shall be given by the 1999-A Owner Trustee to each
Rating Agency.
Section 6.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE 1999-A OWNER TRUSTEE.
Notwithstanding any other provisions of this 1999-A Securitization Trust
Agreement, at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the 1999-A Securitization Trust may at the
time be located, HTC LP, HTD LP and the 1999-A Owner Trustee acting jointly
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons approved by the 1999-A Owner Trustee to act as co-trustee,
jointly with the 1999-A Owner Trustee, or separate trustee or separate trustees,
of all or any part of the 1999-A Securitization Trust, and to vest in such
Person, in such capacity and for the benefit of the Noteholders and the
Certificateholders, such title to the 1999-A Securitization Trust, or any part
thereof, and, subject to the other provisions of this Section 6.10, such powers,
duties, obligations, rights and trusts as the HTC LP, HTD LP and the 1999-A
Owner Trustee may consider necessary or desirable. If either HTC LP or HTD LP
shall not have joined in such appointment within 15 days after the receipt by it
of a request to do so, the 1999-A Owner Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee under this 1999-A
Securitization Trust Agreement shall be required to meet the terms of
eligibility as a successor 1999-A Owner Trustee pursuant to Section 6.06 and no
notice of a successor 1999-A Owner Trustee pursuant to Section 6.08 and no
notice to Certificateholders, Noteholders or the 1999-A Indenture Trustee of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 6.08.
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 1999-A Owner Trustee shall be conferred upon and exercised or
performed by the 1999-A Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that
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such separate trustee or co-trustee is not authorized to act separately
without the 1999-A Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts
are to be performed, the 1999-A 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
1999-A Securitization 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 1999-A Owner
Trustee;
(ii) no trustee under this 1999-A Securitization Trust Agreement
shall be personally liable by reason of any act or omission of any other
trustee under this 1999-A Securitization Trust Agreement; and
(iii) HTC LP, HTD LP and the 1999-A 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 1999-A 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 1999-A
Securitization Trust Agreement and the conditions of this Section 6.10. 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 1999-A Owner Trustee or separately, as may
be provided therein, subject to all the provisions of this 1999-A Securitization
Trust Agreement, specifically including every provision of this 1999-A
Securitization Trust Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the 1999-A Owner Trustee. Each such
instrument shall be filed with the 1999-A Owner Trustee and a copy thereof given
to HTC LP, HTD LP and the Servicer.
Any separate trustee or co-trustee may at any time appoint the 1999-A 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
1999-A Securitization Trust 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 1999-A Owner Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee. Notwithstanding
anything to the contrary in this 1999-A Securitization Trust Agreement, the
appointment of any separate trustee or co-trustee shall not relieve the 1999-A
Owner Trustee of its obligations and duties under this 1999-A Securitization
Trust Agreement.
Section 6.11 REPRESENTATIONS AND WARRANTIES OF 1999-A OWNER TRUSTEE. The
1999-A Owner Trustee makes the following representations and warranties upon
which HTC LP, HTD LP, the Noteholders and the Certificateholders may rely:
(i) ORGANIZATION AND GOOD STANDING. The 1999-A Owner Trustee is
a national banking association organized, existing and in good standing
under the laws of the United States.
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(ii) POWER AND AUTHORITY. The 1999-A Owner Trustee has full
power, authority and right to execute, deliver and perform this 1999-A
Securitization Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this 1999-A
Securitization Trust Agreement.
(iii) DUE EXECUTION. This 1999-A Securitization Trust Agreement
has been duly executed and delivered by the 1999-A Owner Trustee.
(iv) ENFORCEABILITY. This 1999-A Securitization Trust Agreement
constitutes the legal, valid and binding obligation of the 1999-A 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 enforcement of
creditors' rights generally and by general principles of equity.
Section 6.12 TAX RETURNS. The Servicer shall, on behalf of the 1999-A
Securitization Trust, the 1999-A Owner Trustee, HTC LP and HTD LP, prepare or
shall cause to be prepared any required federal tax information returns (in a
manner consistent with the treatment of the Notes as indebtedness) and the
1999-A Owner Trustee shall file and distribute such forms as required by law
in accordance with the Servicer's instructions. The Servicer shall prepare
or cause to be prepared any federal and state income tax returns that may be
required with respect to the 1999-A Securitization Trust or the assets of the
1999-A Securitization Trust and shall deliver any such returns to the 1999-A
Owner Trustee for signature by HTC LP and HTD LP (or any other Person
authorized to sign such returns) at least five days prior to the date such
returns are required by law to be filed. The 1999-A Securitization Trust
shall not elect to be treated as an association under Treasury Regulations
Section 301.7701-3(a) for federal income tax purposes.
Section 6.13 1999-A OWNER TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF THE CERTIFICATES. All rights of action and claims under this 1999-A
Securitization Trust Agreement or the Certificates may be prosecuted and
enforced by the 1999-A Owner Trustee without the possession of the Certificates
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the 1999-A Owner Trustee shall be brought in its own
name as trustee. Any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the 1999-A Owner Trustee, its agents and counsel, be for the ratable benefit of
the Noteholders and the Certificateholders in respect of which such judgment has
been obtained.
Section 6.14 SUIT FOR ENFORCEMENT. If a 1999-A Servicer Termination
Event shall occur and be continuing, the 1999-A Indenture Trustee or the 1999-A
Owner Trustee, in its discretion may, subject to the provisions of Sections
6.01, 6.02 and Section 2.01(c) of the Servicing Agreement (with respect to the
Servicer), proceed to protect and enforce its rights and the rights of the
Noteholders and Certificateholders under this 1999-A Securitization Trust
Agreement, the Servicing Agreement and the 1999-A Servicing Supplement, as
applicable, by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained
herein or therein or in aid of the execution of any power granted herein or
therein or for the enforcement of any other legal, equitable or other remedy as
the 1999-A Indenture Trustee or the 1999-A Owner Trustee, being advised by
counsel, shall
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deem most effectual to protect and enforce any of the rights of the 1999-A
Indenture Trustee or the 1999-A Owner Trustee or the Noteholders and the
Certificateholders.
Section 6.15 RIGHTS OF 1999-A INDENTURE TRUSTEE TO DIRECT 1999-A OWNER
TRUSTEE. Until the Notes are paid in full, the 1999-A Indenture Trustee shall
have the right, and, thereafter, HTC LP and HTD LP shall jointly have the right,
to direct the time, method and place of conducting any proceeding for any remedy
available to the 1999-A Owner Trustee under this 1999-A Securitization Trust
Agreement, or exercising any trust or power conferred on the 1999-A Owner
Trustee by this 1999-A Securitization Trust Agreement; PROVIDED, HOWEVER, that
(a) subject to Sections 6.01 and 6.02, the 1999-A Owner Trustee shall have the
right to decline to follow any such direction if the 1999-A Owner Trustee being
advised by counsel determines that the action so directed may not lawfully be
taken, or if the 1999-A Owner Trustee in good faith shall, by a Responsible
Officer, determine that the proceedings so directed would be illegal or subject
it to personal liability, and (b) nothing in this 1999-A Securitization Trust
Agreement shall impair the right of the 1999-A Owner Trustee to take any action
deemed proper by the 1999-A Owner Trustee and which is not inconsistent with
such direction by the 1999-A Indenture Trustee or by HTC LP and HTD LP, as
applicable.
Section 6.16 NO PETITION. Each of the parties hereto covenants and
agrees that prior to the date which is one year and one day after the last date
upon which (a) each Class of Notes and the Certificates has been paid in full,
and (b) all obligations due under any other Securitization have been paid in
full, it will not institute against, or join any other Person in instituting
against, the 1999-A Securitization Trust, HTA LP, HTB LP, HTC LP, HTD LP, any
general partner or member (as applicable) of a UTI Beneficiary or of a
Transferor which is a partnership or a limited liability company, the
Origination Trustee, the Origination Trust, any Special Purpose Affiliate, any
UTI Beneficiary, any Beneficiary, and any general partner or member (as
applicable) of a Beneficiary or of a Special Purpose Affiliate partnership (or
any of their respective general partners) that is a partnership or a limited
liability company, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law. The foregoing shall not limit the 1999-A Indenture
Trustee's or 1999-A Owner Trustee's right to file any claim in or otherwise take
actions with respect to any such proceeding instituted by any Person not under
such a constraint. This Section 6.16 shall survive the termination of this
1999-A Securitization Trust Agreement or the resignation or removal of the
1999-A Owner Trustee or the 1999-A Indenture Trustee under this 1999-A
Securitization Trust Agreement or the Indenture, respectively.
Section 6.17 AUTHORITY TO EXECUTE. Each of HTC LP and HTD LP hereby
authorizes and directs the 1999-A Owner Trustee (i) to execute and deliver on
behalf of the 1999-A Securitization Trust the Indenture, the Certificates and
any other document as HTC LP, HTD LP or the 1999-A Indenture Trustee may from
time to time direct, (ii) to execute and deliver all other documents
contemplated by the documents referred to in clause (i) above, and (iii) subject
to the terms of this 1999-A Securitization Trust Agreement, to take such other
actions in connection with the foregoing as HTC LP, HTD LP, the Servicer or the
1999-A Indenture Trustee may from time to time direct.
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Section 6.18 MANAGEMENT OF THE 1999-A SECURITIZATION TRUST. The business
and affairs of the 1999-A Securitization Trust shall be managed by the 1999-A
Owner Trustee at the direction of HTC LP, HTD LP, the Servicer and the 1999-A
Indenture Trustee.
Section 6.19 NEGATIVE PLEDGE. Except as expressly set forth herein with
respect to the pledge to the 1999-A Indenture Trustee of the 1999-A SUBI
Certificates and the 1999-A SUBI Assets evidenced thereby and the disposition of
the assets of the 1999-A Securitization Trust in connection with the termination
of the 1999-A Securitization Trust pursuant to Section 7.01, the 1999-A Owner
Trustee shall not sell, assign, pledge, convey or otherwise transfer to any
Person the 1999-A SUBI Certificates or any interest therein.
ARTICLE SEVEN
TERMINATION
Section 7.01 TERMINATION OF THE 1999-A SECURITIZATION TRUST.
(a) The 1999-A Securitization Trust and the respective obligations and
responsibilities of HTC LP, HTD LP, the 1999-A Indenture Trustee and the 1999-A
Owner Trustee shall terminate upon the earliest to occur of (i) the maturity,
sale or other liquidation, as the case may be, of the last outstanding 1999-A
Contract and 1999-A Leased Vehicle evidenced by the 1999-A SUBI Interest and the
distribution of all proceeds thereof (other than proceeds of any Residual Value
Insurance Policy) together with all amounts on deposit all 1999-A SUBI Accounts
and the Reserve Fund in the manner provided in Section 3.03, (ii) the purchase
as of any Distribution Date by the Servicer of the corpus of the 1999-A
Securitization Trust in the manner provided in Section 7.02, (iii) the day
following the Distribution Date upon which all Notes and Certificates have been
paid in full and after which there is no unreimbursed Class A-1 Note Principal
Loss Amount, Class A-2 Note Principal Loss Amount, Class A-3 Note Principal Loss
Amount, Class A-4 Note Principal Loss Amount, Class B Note Principal Loss
Amount, Class A-1 Note Principal Loss Interest Amount, Class A-2 Note Principal
Loss Interest Amount, Class A-3 Note Principal Loss Interest Amount, Class A-4
Note Principal Loss Interest Amount, Class B Note Principal Loss Interest
Amount, Class B Note Principal Carryover Shortfall, Class B Note Principal
Carryover Shortfall Interest Amount, Certificate Principal Loss Amount,
Certificate Principal Loss Interest Amount, Certificate Principal Carryover
Shortfall or Certificate Principal Carryover Shortfall Interest Amount or (iv)
the expiration, disposition or termination of the 1999-A SUBI Interest;
PROVIDED, HOWEVER, that in no event shall the trust created by this 1999-A
Securitization Trust Agreement continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
ambassador to the Court of St. Xxxxx, living on the date of the 1999-A
Securitization Trust Agreement. HTC LP and HTD LP shall promptly notify the
1999-A Owner Trustee and each Rating Agency of any prospective termination of
the 1999-A Securitization Trust.
(b) Upon the winding up of the 1999-A Securitization Trust and its
termination, the 1999-A Owner Trustee shall cause the Certificate of Trust to be
canceled by filing a certificate of cancellation with the Secretary of State of
the State of Delaware in accordance with Section 3810 of the Business Trust
Statute.
Section 7.02 OPTIONAL PURCHASE OF 1999-A SUBI CERTIFICATES.
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On each Distribution Date as of which the Investor Balance shall be less
than or equal to $* (10% of the sum of the Initial Note Balance and the
Initial Certificate Balance), either before or after giving effect to any
payment of principal required to be made on such Distribution Date, the
Servicer shall have the option to purchase the Securityholders' interest in
the corpus of the 1999-A Securitization Trust and to effect a termination of
the 1999-A Securitization Trust. To exercise such option, the Servicer shall
notify the 1999-A Indenture Trustee, the 1999-A Owner Trustee, HTC LP and HTD
LP, in writing, no later than the third Business Day of the month in which
such purchase is to be effected and shall deposit in the 1999-A SUBI
Collection Account an amount equal to the greater of (i) the Aggregate Net
Investment Value as of the last day of the related Collection Period, and
(ii) the sum of (A) the Adjusted Class A-1 Note Balance, the Adjusted Class
A-2 Note Balance, the Adjusted Class A-3 Note Balance, the Adjusted Class A-4
Note Balance, the Adjusted Class B Note Balance and the Adjusted Certificate
Balance, (B) the accrued and unpaid Class A-1 Interest Distributable Amount,
Class A-2 Interest Distributable Amount, Class A-3 Interest Distributable
Amount, Class A-4 Interest Distributable Amount, Class B Interest
Distributable Amount and Certificate Interest Distributable Amount, (C) any
accrued and unpaid Class A-1 Interest Carryover Shortfall, Class A-2 Interest
Carryover Shortfall, Class A-3 Interest Carryover Shortfall, Class A-4
Interest Carryover Shortfall, Class B Interest Carryover Shortfall and
Certificate Interest Carryover Shortfall, (D) any unpaid Class A-1 Note
Principal Loss Amount, Class A-2 Note Principal Loss Amount, Class A-3 Note
Principal Loss Amount, Class A-4 Note Principal Loss Amount, Class B Note
Principal Loss Amount, Class B Note Principal Carryover Shortfall,
Certificate Principal Loss Amount and Certificate Principal Carryover
Shortfall, and (E) any accrued and unpaid Class A-1 Note Principal Loss
Interest Amount, Class A-2 Note Principal Loss Interest Amount, Class A-3
Note Principal Loss Interest Amount, Class A-4 Note Principal Loss Interest
Amount, Class B Note Principal Loss Interest Amount, Class B Note Principal
Carryover Shortfall Interest Amount, Certificate Principal Loss Interest
Amount and Certificate Principal Carryover Shortfall Interest Amount, in each
case through the day preceding the final Distribution Date. On such
Distribution Date, upon receipt of such amount, the 1999-A Owner Trustee
shall distribute such amounts pursuant to the priorities set forth in Section
3.03, and any balance will be distributed to the Servicer. Thereupon the
Servicer shall succeed to all of the 1999-A Securitization Trust corpus.
ARTICLE EIGHT
TAX MATTERS
Section 8.01 TAX AND ACCOUNTING CHARACTERIZATION. It is the intent of
the parties hereto that the 1999-A Securitization Trust not constitute a
separate entity for federal income tax or state income or franchise tax
purposes. It is the intent of each of HTC LP and HTD LP and the Noteholders
that the Notes be treated as indebtedness of the each of HTC LP and HTD LP
secured by the assets of the 1999-A Securitization Trust for federal income tax
and state income and franchise tax purposes. The parties agree that, unless
otherwise required by appropriate tax authorities, the 1999-A Securitization
Trust shall not file or cause to be filed annual returns, reports or other forms
and will treat the 1999-A Securitization Trust consistent with the
characterization that the 1999-A Securitization Trust is not a separate entity
for tax purposes.
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ARTICLE NINE
MISCELLANEOUS PROVISIONS
Section 9.01 AMENDMENT.
(a) This 1999-A Securitization Trust Agreement and the 1999-A
Securitization Documents may be amended by the respective parties thereto,
without the consent of any of the Noteholders or the Certificateholders, to cure
any ambiguity, to correct or supplement any provisions herein or therein, to
add, change or eliminate any other provisions hereof or thereof with respect to
matters or questions arising hereunder or thereunder that shall not be
inconsistent with the provisions hereof or thereof, or to add or amend any
provision therein in connection with permitting transfers of the Certificates or
the Notes; PROVIDED, HOWEVER, that any such action shall not, in the good faith
judgment of the parties hereto or thereto, adversely affect in any material
respect the interests of the Noteholders, the Certificateholders, the 1999-A
Indenture Trustee, the 1999-A Owner Trustee or the Origination Trustee; and, as
a condition to the effectiveness of such amendment, the 1999-A Indenture Trustee
and the 1999-A Owner Trustee shall have received an Opinion of Counsel to the
effect that such action shall not adversely affect in any material respect the
interests of the Noteholders or the Certificateholders; and PROVIDED, FURTHER
that any amendment eliminating the Reserve Fund or reducing the Reserve Fund
Requirement shall also require HTC LP and HTD LP to deliver to the 1999-A Owner
Trustee an Opinion of Counsel to the effect that after such amendment, for
federal income tax purposes, the 1999-A Securitization Trust will not be treated
as an association taxable as a corporation and the Notes should properly be
characterized as indebtedness that is secured by the assets of the 1999-A
Securitization Trust.
(b) This 1999-A Securitization Trust Agreement and the 1999-A
Securitization Documents may also be amended from time to time by the respective
parties hereto or thereto including with respect to (i) changing the formula for
determining the Reserve Fund Requirement and changing the Reserve Fund Tests
which change could result in a decrease in the amount of the Reserve Fund
Requirement, (ii) changing the manner by which the Reserve Fund is funded, which
changes could include borrowings by HTC LP and HTD LP to fund all or a portion
of the Reserve Fund Initial Deposit (which borrowings would be payable from
assets or cash flow otherwise payable to HTC LP and HTD LP), (iii) changing the
remittance schedule for deposits in the 1999-A Note Distribution Account and the
1999-A Certificate Distribution Account, or (iv) changing the definition of
"Eligible Investments", if either (A) the 1999-A Indenture Trustee has been
furnished with confirmation (written or oral) for each Rating Agency to the
effect that such amendment would not cause its then-current rating of any Rated
Securities to be qualified, reduced or withdrawn, or (B) the 1999-A Indenture
Trustee has received the consent of the Noteholders holding Notes representing
more than 50% of the aggregate Voting Interests, acting as a single Class, and
the 1999-A Owner Trustee has received the consent of the Certificateholders
holding Certificates representing more than 50% of the aggregate Voting
Interests (which consent of any Noteholder or Certificateholder given pursuant
to this Section 9.01(b) or pursuant to any other provision of this 1999-A
Securitization Trust Agreement shall be conclusive and binding on such
Noteholder or Certificateholder and on all future Noteholders or
Certificateholders of such Note and of any or Note or Certificate issued upon
the transfer thereof or in exchange thereof, or in lieu thereof whether or not
notation of such consent is made upon the Note or Certificate); PROVIDED,
HOWEVER, that (1) any amendment eliminating the
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Reserve Fund or reducing the Reserve Fund Requirement to less than the lesser of
the Reserve Fund Initial Deposit and the sum of the Note Balance and the
Certificate Balance as of the related Distribution Date (after giving effect to
reductions in the Note Balance and Balance on such Distribution Date), shall
also require that the 1999-A Indenture Trustee and each Rating Agency receive
and Opinion of Counsel to the effect that, after such amendment, for federal
income tax purposes the Notes and Certificates will properly be characterized as
indebtedness that is secured by the assets of the 1999-A Securitization Trust;
and (2) no such amendment shall (x) except as otherwise provided in Section
9.01(a), increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on the 1999-A SUBI Interest, the 1999-A
SUBI Certificates, the Retained 1999-A SUBI Certificates, or distributions that
shall be required to be made on any Note or Certificate or the applicable Note
Rate or Certificate Rate or (y) reduce the aforesaid percentage of the aggregate
Voting Interest of the Notes or the aggregate Voting Interest of the
Certificates required to consent to any such amendment, without the consent of
all of the Noteholders and all of the Certificateholders holding Notes or
Certificates, as applicable, then outstanding.
(c) The 1999-A Owner Trustee shall provide each Rating Agency prior notice
of any proposed amendment hereto and copies of an Opinion of Counsel, if
relevant, whether or not such amendment requires the approval of the Rating
Agency. Any notice of any such amendment or modification as to which notice is
required to be given to any Rating Agency shall contain both the substance and
substantial form of the proposed amendment or modification.
(d) Promptly after the execution of any such amendment or consent, the
1999-A Owner Trustee and the 1999-A Indenture Trustee shall furnish written
notification of the substance of such amendment or consent to each
Certificateholder and Noteholder, as the case may be. It shall not be necessary
for the consent of Certificateholders or Noteholders pursuant to Section 9.01(b)
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 of evidencing the authorization by
Certificateholders or Noteholders of the execution thereof shall be subject to
such reasonable requirements as the 1999-A Owner Trustee may prescribe.
(e) Prior to the execution of any amendment to this 1999-A Securitization
Trust Agreement, the 1999-A Indenture Trustee and the 1999-A Owner Trustee shall
be entitled to receive and rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this 1999-A
Securitization Trust Agreement. The 1999-A Indenture Trustee and the 1999-A
Owner Trustee may, but shall not be obligated to, enter into any such amendment
which affects the 1999-A Indenture Trustee's or 1999-A Owner Trustee's, as the
case may be, own rights, duties or immunities under this 1999-A Securitization
Trust Agreement or otherwise.
Section 9.02 PROTECTION OF TITLE TO 1999-A SECURITIZATION TRUST.
(a) Each of HTC LP and HTD LP shall execute and file, or cause to be
executed and filed, such financing statements and such continuation and other
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interests of the Certificateholders,
the Noteholders, the 1999-A Owner Trustee and the 1999-A Indenture
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Trustee under this 1999-A Securitization Trust Agreement in the 1999-A SUBI
Interest, the 1999-A SUBI Certificates, the Reserve Fund Property and the
proceeds thereof. Each of HTC LP and HTD LP shall deliver (or cause to be
delivered) to the 1999-A Owner Trustee and the 1999-A Indenture Trustee
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) Neither of HTC LP nor HTD LP shall change its name, identity or
partnership structure in any manner that would, could or might make any
financing statement or continuation statement filed by HTC LP or HTD LP in
accordance with Section 9.02(a) seriously misleading within the meaning of
Section 9-402(7) of the UCC unless it shall have given the 1999-A Owner Trustee
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) Each of HTC LP and HTD LP and shall give the 1999-A Owner Trustee
prior written notice of any relocation of its principal executive office if, as
a result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly make any such
filing.
(d) Each of HTC LP and HTD LP shall deliver to the 1999-A Owner Trustee
promptly after the execution and delivery of each amendment to this 1999-A
Securitization Trust Agreement, an Opinion of Counsel either (i) stating that,
in the opinion of such Counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to preserve and
protect the interest of the 1999-A Owner Trustee in the 1999-A SUBI Interest,
and reciting the details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (ii) stating that, in the opinion of
such counsel, no such action is necessary to preserve and protect such interest.
Section 9.03 LIMITATIONS ON RIGHTS OF OTHERS. Except for Section 2.07,
the provisions of this 1999-A Securitization Trust Agreement are solely for the
benefit of the 1999-A Owner Trustee, HTC LP, HTD LP, the Certificateholders, the
Servicer, the 1999-A Indenture Trustee and the Noteholders, and nothing in this
1999-A Securitization Trust Agreement (other than Section 2.07), whether express
or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the 1999-A Securitization Trust Estate or
under or in respect of this 1999-A Securitization Trust Agreement or any
covenants, conditions or provisions contained herein.
Section 9.04 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be delivered or mailed by registered
or certified first-class United States mail, postage prepaid, hand delivery,
prepaid courier service, or by telecopier, and addressed in each case as
follows: (i) if to the 1999-A Indenture Trustee, at The Bank of New York,
000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000 (telecopier no. (212)
815-5544), Attention: Corporate Trust Department; (ii) if to the 1999-A Owner
Trustee, at U.S. Bank National Association, 000 Xxxx Xxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000 (telecopier no. (000) 000-0000), Attention:
Honda Auto Lease Trust 1999-A, (iii) if to HTC LP, at 000 Xxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000 (telecopier no. (000) 000-0000), Attention:
General Partner, (iv) if to HTD LP, at 000 Xxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000 (telecopier no. (310)
44
787-3910) Attention: General Partner, (v) if the Delaware Owner Trustee, at
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 (telecopier no. (000) 000-0000), (vi) if to Moody's,
to 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telecopier no. (000) 000-0000),
Attention: ABS Monitoring Group; (vii) if to Standard & Poor's, to 00 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance Group
(telecopier no. (000) 000-0000) Attention: Asset Backed Surveillance Group;
(viii) if to Fitch, to Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(telecopier no. (000) 000-0000); or (ix) at such other address as shall be
designated by any of the foregoing in a written notice to the other parties
hereto. Delivery shall occur only upon receipt or reported tender of such
communication by an officer of the recipient entitled to receive such notices
located at the address of such recipient for notices hereunder.
Section 9.05 SEVERABILITY OF PROVISIONS. Any provision of this 1999-A
Securitization Trust 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 9.06 COUNTERPARTS. This 1999-A Securitization Trust 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 9.07 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, HTC LP, HTD
LP, the 1999-A Owner Trustee, the 1999-A Indenture Trustee, the
Certificateholders and the Noteholders and their respective successors and
permitted assigns, all to the extent herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by HTC LP, HTD LP, the
Certificateholders and the Noteholders shall bind the successors and assigns of
HTC LP, HTD LP or such Certificateholders and Noteholders.
Section 9.08 NO RECOURSE. The Certificates entitle the holders thereof
to the rights and benefits set forth in this 1999-A Securitization Trust
Agreement and in the Certificates. The Certificates do not represent interests
in or obligations of the Servicer, HTC LP, HTD LP, the 1999-A Owner Trustee, the
1999-A Indenture Trustee or any Affiliate thereof (other than the 1999-A
Securitization Trust) and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this 1999-A
Securitization Trust Agreement, the Certificates or the 1999-A Securitization
Documents.
Section 9.09 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 9.10 GOVERNING LAW. THIS 1999-A SECURITIZATION TRUST AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
DELAWARE, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW.
45
Section 9.11 CERTIFICATES NONASSESSABLE AND FULLY PAID. Subject to
Section 2.07, the Certificateholders shall not be personally liable for
obligations of the 1999-A Securitization Trust. The interests represented by
the Certificates shall be nonassessable for any losses or expenses of the 1999-A
Securitization Trust or for any reason whatsoever, and, upon authentication
thereof pursuant to Sections 4.01 and 4.02, the Certificates shall be deemed
fully paid.
[Remainder of page intentionally left blank]
46
IN WITNESS WHEREOF, the parties have caused this 1999-A Securitization
Trust Agreement to be duly executed by their respective officers as of the day
and year first above written by its duly authorized officer.
HONDA TITLING C L.P.
By: HONDA TITLING C LLC,
its General Partner
By: HONDA FUNDING INC.,
as Manager
By:
----------------------------------------
Name:
Title:
HONDA TITLING D L.P.
By: HONDA TITLING D LLC,
its General Partner
By: HONDA FUNDING INC.,
as Manager
By:
----------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Owner Trustee
By:
----------------------------------------
Name:
Title:
S-1
WILMINGTON TRUST COMPANY, as Delaware Owner
Trustee
By:
----------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Indenture Trustee
By:
----------------------------------------
Name:
Title:
S-2
EXHIBIT A
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE APPLICABLE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE RESOLD OR TRANSFERRED EXCEPT IN THE EVENT OF THE
DISSOLUTION, TERMINATION OR BANKRUPTCY OF [HONDA TITLING C L.P. /HONDA TITLING D
L.P.] WHEN IT IS HOLDER HEREOF AND ANY TRANSFER IN VIOLATION OF THIS PROVISION
SHALL BE NULL AND VOID.
HONDA AUTO LEASE TRUST 1999-A
FORM OF AUTO LEASE ASSET-BACKED CERTIFICATE
evidencing an undivided beneficial interest in the 1999-A Securitization Trust,
as defined below, the property of which includes, among other things, the 1999-A
SUBI Certificates (transferred pursuant to the 1999-A Securitization Trust
Agreement), collectively evidencing a 99.8% beneficial interest in the 1999-A
SUBI. The property of the 1999-A Securitization Trust has been pledged to the
1999-A Indenture Trustee pursuant to the Indenture to secure the payment of the
Notes issued thereunder.
This Certificate does not represent an interest in or obligation of Honda
Titling C L.P., Honda Titling D L.P., American Honda Finance Corporation, the
1999-A Owner Trustee, the 1999-A Indenture Trustee, or any of their respective
Affiliates, except to the extent described below.
THIS CERTIFIES THAT
[HONDA TITLING C L.P. ("HTC LP")/HONDA TITLING D L.P. ("HTC LP")] is the
registered owner of the undivided equity interest in the Honda Auto Lease
Trust 1999-A (the "1999-A Securitization Trust") formed by HTC LP and HTD LP.
The 1999-A Securitization Trust was created pursuant to the 1999-A
Securitization Trust Agreement dated as of [May 31, 1999] (the "1999-A
Securitization Trust Agreement"), among HTC LP, HTD LP, U.S. Bank National
Association ("U.S. Bank"), a national banking association, as owner trustee
(the "1999-A Owner Trustee"), Wilmington Trust Company, a Delaware
corporation, as Delaware owner trustee (the "Delaware Owner Trustee"),
and The Bank of New York, a national banking association, as indenture
trustee (the "1999-A Indenture Trustee"). A summary of certain of the
pertinent provisions of the 1999-A Securitization Trust Agreement is set
forth below. To the extent not otherwise defined herein capitalized terms
used herein without definitions have the respective meanings assigned to them
in the Agreement of Definitions, dated [May 31, 1999], by and among HVT,
Inc., Delaware Trust Capital Management, Inc, American Honda Finance
Corporation, U.S. Bank, the Delaware Owner Trustee, the 1999-A Indenture
Trustee, Honda Titling A L.P., Honda Titling B L.P., Honda Titling C L.P. and
Honda Titling D L.P.
This Certificate is issued under the 1999-A Securitization Trust Agreement
and designated as a "Honda Auto Lease Trust 1999-A Auto Lease Backed
Certificate" (a "Certificate"). This Certificate is issued under and is subject
to the terms, provisions and conditions of the 1999-A Securitization Trust
Agreement, to which 1999-A Securitization Trust Agreement the holder of this
Certificate by virtue of the acceptance hereof assents and by which such holder
is bound.
A-1
The property of the 1999-A Securitization Trust includes, among other
things, (i) the HTC LP 1999-A SUBI Certificate evidencing a 98.802% interest in
the 1999-A SUBI Assets, (ii) the HTD LP 1999-A SUBI Certificate evidencing a
0.998% interest in the 1999-A SUBI Assets, (iii) the amounts on deposit from
time to time in the Reserve Fund and the security interest granted to the 1999-A
Indenture Trustee by HTC LP and HTD LP in the Reserve Fund Property solely for
the benefit of the Noteholders, (iv) the amounts on deposit from time to time in
the 1999-A SUBI Accounts, (v) rights as the third-party beneficiary of the
Servicing Agreement, the 1999-A Servicing Supplement, the Origination Trust
Agreement and the 1999-A SUBI Supplement and (v) all of the proceeds of the
foregoing. The rights of the 1999-A Securitization Trust in the foregoing
property have been pledged by the 1999-A Owner Trustee to the 1999-A Indenture
Trustee pursuant to the Indenture to secure the payment of the Notes.
Payments in respect of the 1999-A SUBI Certificates will be allocated
between the Notes and the Certificates and paid to, among other recipients, the
registered holder of this Certificate as provided in the 1999-A Securitization
Trust Agreement.
The holder of this Certificate acknowledges and agrees that its right to
receive payments in respect of this Certificate are subordinated to the rights
of the Noteholders as described in the 1999-A Securitization Trust Agreement and
the Indenture, as applicable.
By accepting this Certificate, the holder hereof waives any claim to any
proceeds or assets of the Origination Trust other than those from time to time
included within the 1999-A SUBI Interest as 1999-A SUBI Assets.
It is the intention of [HTC LP/HTD LP], as the holder of this Certificate,
that the Notes will be indebtedness for federal, state and local income and
franchise tax purposes and for purposes of any other tax imposed on or measured
by income. The 1999-A Owner Trustee and [HTC LP/ HTD LP], as the holder of this
Certificate, by acceptance of this Certificate, agree to treat the Notes, for
purposes of federal, state, and local income or franchise taxes and any other
tax imposed on or measured by income, as indebtedness and to report the
transactions contemplated by the 1999-A Securitization Trust Agreement on all
applicable tax returns in a matter consistent with such treatment.
The holder of this Certificate, by accepting this Certificate, covenants
and agrees that prior to the date which is one year and one day after the last
date upon which (a) each Class of Notes and the Certificates has been paid in
full, and (b) all obligations due under any other Securitization have been paid
in full, it will not institute against, or join any other Person in instituting
against, the 1999-A Securitization Trust, HTA LP, HTB LP, HTC LP, HTD LP, any
general partner or member (as applicable) of a UTI Beneficiary or of a
Transferor which is a partnership or a limited liability company, the
Origination Trustee, the Origination Trust, any Special Purpose Affiliate, any
UTI Beneficiary, any Beneficiary, and any general partner or member (as
applicable) of a Beneficiary or of a Special Purpose Affiliate partnership (or
any of their respective general partners) that is a partnership or a limited
liability company, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law.
A-2
If, notwithstanding the statement of intentions and undertakings set forth
in Section 8.01 of the 1999-A Securitization Trust Agreement and herein, it
is finally determined that the Notes do not evidence indebtedness of HTC LP and
HTD LP for all income and franchise tax purposes, but rather represent equity
interests in the assets of the 1999-A Securitization Trust, then [HTC LP/HTD
LP], as holder hereof, agrees (i) to treat the Notes, together with this
Certificate, as representing an interest in a partnership for all tax purposes,
(ii) to treat all payments in respect of such Certificate (to the extent not a
return of capital) as a "guaranteed payment" thereon made pursuant to Section
707(c) of the Code, and (iii) to allocate losses to such Certificate only to the
extent required for the allocation of all other items of income, gain,
deduction, loss or credit with respect to the assets and operations of the
1999-A Securitization Trust to [HTC LP/HTD LP] to be respected for federal
income tax purposes.
This Certificate does not represent an obligation of, or an interest in,
HTC LP, HTD LP, the Servicer, the 1999-A Indenture Trustee, the 1999-A Owner
Trustee, the Origination Trust or any of their respective Affiliates, other than
the 1999-A Securitization Trust. This Certificate is limited in right of
payment to certain collections and recoveries respecting the 1999-A SUBI
Interest, the 1999-A SUBI Certificates and certain monies on deposit in the
Reserve Fund and in certain other accounts, in each case to the extent and as
more specifically set forth in the 1999-A Securitization Agreement. A copy of
the 1999-A Securitization Trust Agreement may be examined during normal business
hours at the Corporate Trust Office of the 1999-A Owner Trustee, and at such
other places in the United States, if any, designated by the 1999-A Owner
Trustee, by the Certificateholder upon request.
The 1999-A Securitization Trust Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the parties thereto and the rights of the Certificateholder under
the 1999-A Securitization Trust Agreement at any time by HTC LP, HTD LP, the
Servicer, the 1999-A Indenture Trustee and the 1999-A Owner Trustee. In certain
limited circumstances, the 1999-A Securitization Trust Agreement may only be
amended with the consent of Holders of Notes evidencing more than 50% of the
aggregate Percentage Interests of all Notes, voting together as a single class.
As provided in the 1999-A Securitization Trust Agreement, this Certificate
shall be owned by [HTC LP/HTD LP] and may not be transferred.
The obligations and responsibilities created by the 1999-A Securitization
Trust Agreement and the 1999-A Securitization Trust created thereby shall
terminate upon the payment to Noteholders of all amounts required to be paid to
them pursuant to the 1999-A Securitization Trust Agreement and the disposition
of all property held as part of the 1999-A Securitization Trust. The Servicer
may at its option purchase the corpus of the 1999-A Securitization Trust at a
price specified in the 1999-A Securitization Trust Agreement, and such purchase
of the 1999-A SUBI, the Retained 1999-A SUBI Certificates and other property of
the 1999-A Securitization Trust will effect early retirement of this
Certificate; PROVIDED, HOWEVER, such right of purchase is exercisable only on
the Distribution Date following the last day of a Collection Period as of which
the sum of the Note Balance and the Certificate Balance shall be less than or
equal to ten percent (10%) of the sum of the Initial Note Balance and the
Initial Certificate Balance.
A-3
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the 1999-A Owner Trustee, by manual signature, this
Certificate shall not entitle the Certificateholder hereof to any benefit under
the 1999-A Securitization Trust 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 CONFLICTS OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-4
IN WITNESS WHEREOF, the 1999-A Owner Trustee on behalf of the 1999-A
Securitization Trust and not in its individual capacity has caused this
Certificate to be duly executed by its duly authorized officer.
HONDA AUTO LEASE TRUST 1999-A
BY: U.S. Bank National Association,
as 1999-A Owner Trustee
By:
-----------------------------------
Name:
Title:
1999-A OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned 1999-A
Securitization Trust Agreement.
U.S. Bank National Association,
as 1999-A Owner Trustee
By:
-----------------------------------
Name:
Title:
A-5
EXHIBIT B
CERTIFICATE OF TRUST OF
HONDA AUTO LEASE TRUST 1999-A
B-1