HONDA AUTO RECEIVABLES 2010-3 OWNER TRUST, as Issuer, AMERICAN HONDA FINANCE CORPORATION, as Sponsor and Administrator, AMERICAN HONDA RECEIVABLES CORP., as Depositor, and DEUTSCHE BANK TRUST COMPANY AMERICAS as Indenture Trustee ADMINISTRATION...
Exhibit
99.3
EXCEUTION VERSION
as
Issuer,
AMERICAN
HONDA FINANCE CORPORATION,
as
Sponsor and Administrator,
AMERICAN
HONDA RECEIVABLES CORP.,
as
Depositor,
and
DEUTSCHE
BANK TRUST COMPANY AMERICAS
as
Indenture Trustee
Dated as
of October 1, 2010
TABLE OF
CONTENTS
Page
|
|
Section
1.01 Capitalized Terms; Interpretive Provisions
|
1
|
Section
1.02 Duties of the Administrator
|
2
|
Section
1.03 Records
|
8
|
Section
1.04 Compensation
|
8
|
Section
1.05 Additional Information to be Furnished to the
Issuer
|
9
|
Section
1.06 Independence of the Administrator
|
9
|
Section
1.07 No Joint Venture
|
9
|
Section
1.08 Other Activities of Administrator
|
9
|
Section
1.09 Term of Agreement; Resignation and Removal of
Administrator
|
9
|
Section
1.10 Action Upon Termination, Resignation or
Removal
|
10
|
Section
1.11 Notices
|
11
|
Section
1.12 Amendments
|
11
|
Section
1.13 Successors and Assigns
|
12
|
Section
1.14 Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial
|
12
|
Section
1.15 Headings
|
13
|
Section
1.16 Counterparts
|
13
|
Section
1.17 Severability
|
13
|
Section
1.18 Limitation of Liability of Owner Trustee and Indenture
Trustee.
|
13
|
Section
1.19 Third-Party Beneficiary
|
13
|
Section
1.20 Rights of the Indenture Trustee
|
14
|
Section
1.21 Additional Requirements of the
Administrator
|
14
|
EXHIBITS
|
|
Exhibit
A - Form of Power of Attorney
|
A-1
|
Exhibit
B - Form of Annual Certification
|
B-1
|
Exhibit
C - Servicing Criteria to be Addressed in Assessment of
Compliance
|
C-1
|
This
Administration Agreement, dated as of October 1, 2010 (the “Agreement”), is
among Honda Auto Receivables 2010-3 Owner Trust, as Issuer (the “Issuer”),
American Honda Finance Corporation (“AHFC”), as sponsor (in such capacity, the
“Sponsor”) and administrator (in such capacity, the “Administrator”), American
Honda Receivables Corp. (“AHRC”), as depositor (in such capacity, the
“Depositor”), and Deutsche Bank Trust Company Americas, as indenture trustee
(the “Indenture Trustee”).
WHEREAS,
the Issuer was created pursuant to the Amended and Restated Trust Agreement,
dated as of October 28, 2010 (the “Trust Agreement”), between the Depositor and
U.S. Bank Trust National Association, as owner trustee (the “Owner
Trustee”);
WHEREAS, the Issuer is issuing 0.31004%
Asset Backed Notes, Class A-1, 0.53% Asset Backed Notes, Class A-2, 0.70% Asset
Backed Notes, Class A-3 and 0.94% Asset Backed Notes, Class A-4 (collectively,
the “Notes”) pursuant to an Indenture, dated as of the date hereof (the
“Indenture”), between the Issuer and the Indenture Trustee;
WHEREAS,
the Issuer has entered into certain agreements in connection with the issuance
of the Notes and of certain beneficial ownership interests of the Issuer,
including (i) the Indenture, (ii) a Sale and Servicing Agreement, dated as of
the date hereof (the “Sale and Servicing Agreement”), among the Issuer, AHRC, as
transferor (in such capacity, the “Seller”), and AHFC, as servicer (in such
capacity, the “Servicer”) and (iii) a Letter of Representations, dated October
28, 2010 (the “Note Depository Agreement”) among the Issuer, the Indenture
Trustee and The Depository Trust Company (collectively with this Agreement, the
Indenture, the Sale and Servicing Agreement, the Control Agreement, the Trust
Agreement and the Note Depository Agreement, the “Related
Documents”);
WHEREAS,
pursuant to the Related Documents, the Issuer and the Owner Trustee are required
to perform certain duties in connection with (i) the Notes and the collateral
therefor pledged pursuant to the Indenture (the “Collateral”) and (ii) the
beneficial ownership interests in the Issuer (the registered holders of such
interests being referred to herein as the “Owners”);
WHEREAS,
the Issuer and the Owner Trustee desire to have the Administrator perform
certain duties of the Issuer and the Owner Trustee referred to in the preceding
clause and to provide such additional services consistent with the terms of this
Agreement and the other Related Documents as the Issuer and the Owner Trustee
may from time to time request; and
WHEREAS,
the Administrator has the capacity to provide the services required hereby and
is willing to perform such services for the Issuer and the Owner Trustee on the
terms set forth herein;
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, and of
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
Section
1.01 Capitalized Terms;
Interpretive Provisions.
(a) Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto or incorporated by reference in the Sale and Servicing
Agreement, the
Trust
Agreement or the Indenture, as the case may be. Whenever used herein, unless the
context otherwise requires, the following words and phrases shall have the
following meanings:
“Agreement” means this
Administration Agreement, as amended, supplemented or modified from time to
time.
“Related Documents”
has the meaning set forth in the Preamble.
(b) For
all purposes of this Agreement, except as otherwise expressly provided or unless
the context otherwise requires, (i) terms used in this Agreement include, as
appropriate, all genders and the plural as well as the singular, (ii) references
to this Agreement include all Exhibits hereto, (iii) references to words such as
“herein”, “hereof” and the like shall refer to this Agreement as a whole and not
to any particular part, Article or Section within this Agreement, (iv) the term
“include” and all variations thereof shall mean “include without limitation”,
(v) the term “or” shall include “and/or” and (vi) the term “proceeds” shall have
the meaning ascribed to such term in the UCC.
Section
1.02 Duties of the
Administrator.
(a) The
Administrator agrees to perform all its duties as Administrator and, except as
specifically excluded herein, agrees to perform all the duties of the Issuer and
the Owner Trustee under the Related Documents. In addition, the Administrator
shall consult with the Owner Trustee regarding the duties of the Issuer or the
Owner Trustee under the Related Documents. The Administrator shall monitor the
performance of the Issuer and shall advise the Owner Trustee when action is
necessary to comply with the respective duties of the Issuer and the Owner
Trustee under the Related Documents. The Administrator shall prepare for
execution by the Issuer or the Owner Trustee, or shall cause the preparation by
other appropriate persons of, all such documents, reports, notices, filings,
instruments, certificates and opinions that it shall be the duty of the Issuer
or the Owner Trustee to prepare, file or deliver pursuant to the Related
Documents. In furtherance of the foregoing, the Administrator shall take (or, in
the case of the immediately preceding sentence, cause to be taken) all
appropriate action that the Issuer or the Owner Trustee is required to take
pursuant to the Indenture including, without limitation, such of the foregoing
as are required with respect to the following matters under the Indenture
(references are to Sections of the Indenture):
(i) the
preparation of or obtaining of the documents and instruments required for
execution and authentication of the Notes and delivery of the same to the
Indenture Trustee (Section 2.02);
(ii) the
duty to cause the Note Register to be kept and to give the Indenture Trustee
notice of any appointment of a new Note Registrar and the location, or change in
location, of the Note Register (Section 2.04);
(iii) the
notification of Noteholders and the Rating Agencies of the final principal
payment on the Notes (Section 2.07(b));
2
(iv) the
fixing or causing to be fixed of any special record date and the notification of
the Indenture Trustee and Noteholders with respect to special payment dates, if
any (Section 2.07(c));
(v) the
preparation of Definitive Notes in accordance with the instructions of the
Clearing Agency (Section 2.11);
(vi) the
preparation, obtaining or filing of the instruments, opinions and certificates
and other documents required for the release of collateral (Section
2.12);
(vii) the
duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture
Trustee the instrument specified in the Indenture regarding funds held in trust
(Section 3.03);
(viii) the
direction to the Indenture Trustee to deposit monies with Paying Agents, if any,
other than the Indenture Trustee (Section 3.03);
(ix) the
obtaining and preservation of the Issuer’s qualifications to do business,
including under the Pennsylvania Motor Vehicle Sale Finance Act and Maryland
Code Financial Institutions, Title 11, Subtitle 4 (Section 3.04), as
applicable;
(x) the
preparation of all supplements and amendments to the Indenture and all financing
statements, continuation statements, instruments of further assurance and other
instruments and the taking of such other action as are necessary or advisable to
protect the Owner Trust Estate (Section 3.05);
(xi) the
delivery of the Opinion of Counsel on the Closing Date and the annual delivery
of Opinions of Counsel as to the Owner Trust Estate, and the annual delivery of
the Officer’s Certificate and certain other statements as to compliance with the
Indenture (Sections 3.06 and 3.09);
(xii) the
identification to the Indenture Trustee in an Officer’s Certificate of a Person
with whom the Issuer has contracted to perform its duties under the Indenture
(Section 3.07(b));
(xiii) the
notification of the Indenture Trustee, and with respect to each Rating Agency
the responsibility of making such notice available, of each Servicer Default
and, if such Servicer Default arises from the failure of the Servicer to perform
any of its duties or obligations under the Sale and Servicing Agreement with
respect to the Receivables, the taking of all reasonable steps available to
remedy such failure (Section 3.07(d));
(xiv)
the preparation and obtaining of documents
and instruments required for the release of the Issuer from its obligations upon
the merger or consolidation of the Issuer under the Indenture and the obtaining
of the Opinion of Counsel and the Officer’s Certificate relating thereto
(Section 3.10);
(xv)
the duty to cause the Servicer to
comply with Sections 3.10, 3.11, 3.12, 4.10 and Article Eight of the Sale and
Servicing Agreement (Section 3.14);
3
(xvi)
the delivery of written notice to the Indenture Trustee and each Rating Agency
of each Event of Default and each default by the Servicer or the Seller of its
obligations under the Sale and Servicing Agreement (Section 3.19);
(xvii) the
monitoring of the Issuer’s obligations as to the satisfaction and discharge of
the Indenture and the preparation of an Officer’s Certificate and the obtaining
of the Opinion of Counsel and the Independent Certificate relating thereto
(Section 4.01);
(xviii) the
preparation and delivery of written notice in the form of an Officer’s
Certificate to a Responsible Officer of the Indenture Trustee of any Event of
Default, the status of such Event of Default and what action the Issuer is
taking or proposes to take with respect thereto (Section 5.01);
(xix) the
compliance with Section 5.04 of the Indenture with respect to the sale of the
Owner Trust Estate in a commercially reasonable manner if an Event of Default
shall have occurred and be continuing (Section 5.04);
(xx) the
preparation and delivery of notice to Noteholders of the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee (Section
6.08);
(xxi) the
preparation and delivery to each Noteholder such information as may be required
to enable such holder to prepare its federal and state income tax returns
(Section 6.06);
(xxii) the
preparation of any written instruments required to confirm more fully the
authority of any co-trustee or separate trustee and any written instruments
necessary in connection with the resignation or removal of the Indenture Trustee
or any co-trustee or separate trustee (Sections 6.08 and 6.10);
(xxiii) the
furnishing of the Indenture Trustee with the names and addresses of Noteholders
during any period when the Indenture Trustee is not the Note Registrar (Section
7.01);
(xxiv) the
preparation and, after execution by the Issuer, the filing with the Commission,
any applicable state agencies and the Indenture Trustee of documents required to
be filed on a periodic basis with, and summaries thereof as may be required by
rules and regulations prescribed by, the Commission and any applicable state
agencies and the transmission of such summaries, as necessary, to the
Noteholders (Section 7.03);
(xxv) the
opening of one or more accounts in the Issuer’s name and the taking of all other
actions necessary with respect to investment and reinvestment of funds in the
Accounts (Sections 8.02 and 8.03);
(xxvi) the
preparation of an Issuer Request and Officer’s Certificate and the obtaining of
an Opinion of Counsel and Independent Certificates, if necessary, for the
release of the Owner Trust Estate (Sections 8.04 and 8.05);
4
(xxvii) the
preparation of Issuer Requests, the obtaining of Opinions of Counsel and the
certification to the Indenture Trustee with respect to the execution of
supplemental indentures and the mailing to the Noteholders, and with respect to
the Rating Agencies the duty to make available to each Rating Agency, of notices
with respect to such supplemental indentures (Sections 9.01 and
9.02);
(xxviii) the
execution and delivery of new Notes conforming to any supplemental indenture
(Section 9.06);
(xxix) the
duty to notify the Indenture Trustee, and with respect to each Rating Agency the
duty to make such notice available to each Rating Agency, of redemption of the
Notes and to cause the Indenture Trustee to provide such notification to the
Noteholders (Sections 10.01 and 10.02);
(xxx) the
preparation and delivery of all Officer’s Certificates, Opinions of Counsel and
Independent Certificates with respect to any requests by the Issuer to the
Indenture Trustee to take any action under the Indenture (Section
11.01(a));
(xxxi) the
preparation and delivery of Officer’s Certificates and the obtaining of
Independent Certificates, if necessary, for the release of property from the
Lien of the Indenture (Section 11.01(b));
(xxxii) the
notification of each Rating Agency, upon the failure of the Issuer, the Owner
Trustee or the Indenture Trustee to give such notification, of the information
required pursuant to Section 11.04 of the Indenture (Section 11.04);
and
(xxxiii) the
recording of the Indenture, if applicable (Section 11.15).
(b) The
Administrator shall:
(i) pay,
on behalf of the Issuer, from time to time reasonable compensation to (A) the
Indenture Trustee for all services rendered by the Indenture Trustee under the
Basic Documents and (B) the Owner Trustee for all services rendered under the
Trust Agreement (in each case which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(ii) except
as otherwise expressly provided in the Indenture, reimburse, on behalf of the
Issuer, the Indenture Trustee upon its request for all reasonable expenses
(including in connection with the removal and/or resignation of the Indenture
Trustee in accordance with the Indenture), disbursements and advances incurred
or made by the Indenture Trustee in accordance with any provision of the Basic
Documents (including the reasonable compensation, expenses and disbursements of
its agents and counsel), except any such expense, disbursement or advance as may
be attributable to its willful misconduct, negligence or bad faith;
(iii) except
as otherwise expressly provided in the third sentence of Section 7.01 of the
Trust Agreement, reimburse, on behalf of the Issuer, the Owner Trustee upon its
request for all reasonable expenses (including in connection with the removal
and/or
5
resignation
of the Owner Trustee in accordance with the Trust Agreement), disbursements and
advances incurred or made by the Owner Trustee in accordance with any provision
of the Trust Agreement (including reasonable compensation, expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its willful misconduct, gross negligence or
bad faith; and
(iv) indemnify,
on behalf of the Issuer, the Indenture Trustee and the Owner Trustee and their
respective agents for, and hold them harmless against, any loss, liability or
expense incurred without negligence (or, in the case of the Owner Trustee only,
gross negligence), willful misconduct or bad faith on their part, arising out of
or in connection with the acceptance or administration of the transactions
contemplated by the Basic Documents, as the case may be, including the
reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their powers
or duties thereunder.
The
obligations of the Administrator under this Section 1.02(b) shall survive the
termination of this agreement.
(c)
The Administrator shall make available
to each Rating Agency (i) notice of the occurrence and continuation of any
Servicer Default and shall specify in such notice the action, if any, being
taken in respect of such default pursuant to Section 3.07(d) of the Indenture;
(ii) notice of each Event of Default and each default by the Servicer or the
Seller of its obligations under the Sale and Servicing Agreement pursuant to
3.19 of the Indenture; (iii) notice of any merger, consolidation or conversion
of the Indenture Trustee pursuant to Section 6.09 of the Indenture; (iv) notice
of any supplemental indenture pursuant to Section 9.01 and 9.02 of the
Indenture; (v) notice of any redemption of the Notes pursuant to Section 10.01
of the Indenture; (vi) any Servicer’s Certificate pursuant to Section 3.10 and
in accordance with Section 3.15(b) of the Sale and Servicing Agreement; (vii)
any annual statement of compliance of the Servicer pursuant to Section 3.11(a)
and in accordance with Section 3.15(b) of the Sale and Servicing Agreement;
(viii) any Officer’s Certificate specifying the nature and status of any event
which would become a Servicer Default pursuant to Section 3.11(b) and in
accordance with Section 3.15(b) of the Sale and Servicing Agreement; (ix) any
assessment of compliance and annual accountants’ report pursuant to Section 3.12
and in accordance with Section 3.15(b) of the Sale and Servicing Agreement; (x)
any statement to Securityholders pursuant to Section 4.10 and in accordance with
Section 3.15(b) of the Sale and Servicing Agreement; (xi) any other report it
may receive in connection the Sale and Servicing Agreement, the Trust Agreement
or the Indenture in accordance with Section 3.15(b) of the Sale and Servicing
Agreement; (xii) notice of any merger, consolidation or assumptions of
obligations of the Servicer pursuant to Section 6.03 of the Sale and Servicing
Agreement; (xiii) notice of any Servicer Default and termination of the rights
and obligations of the Servicer pursuant to Sections 7.01 and 7.03 of the Sale
and Servicing Agreement; (xiv) notice of any amendment or consent pursuant to
Section 9.01 of the Sale and Servicing Agreement; (xv) notice of the final
payment of the Trust Certificates pursuant to Section 9.01(c) of the Trust
Agreement; (xvi) any acceptance of appointment of a successor Owner Trustee
pursuant to Section 10.02 and 10.03 of the Trust Agreement; (xvii) any merger,
conversion or consolidation of the Owner Trustee pursuant to Section 10.04 of
the Trust Agreement; (xviii) notice of any amendment or consent and the
substance of such amendment or
6
consent
pursuant to Section 11.01 of the Trust Agreement Agreement; in the case of each
of (i) through (xviii), promptly upon the Administrator being notified thereof
by the Indenture Trustee, Owner Trustee or the Servicer, as
applicable.
(d) Notwithstanding
anything in this Agreement or the Basic Documents to the contrary, in each
instance in which notice must be made available to the Rating Agencies for
purpose of satisfying the Rating Agency Condition, such notice shall be made
available by the Administrator and, to the extent such notice is only provided
through a website post, the Administrator shall inform or cause each Rating
Agency to be informed in writing (including by electronic email) that a notice
has been posted.
(e) In
addition to the duties set forth in Sections 1.02(a), (b), (c) and (d), the
Administrator shall perform such calculations and shall prepare or shall cause
the preparation by other appropriate Persons of, and shall execute on behalf of
the Issuer, all such documents, notices, reports, filings, instruments,
certificates and opinions that the Issuer or the Owner Trustee are required to
prepare, file or deliver pursuant to the Related Documents, and at the request
of the Owner Trustee shall take all appropriate action that the Issuer or the
Owner Trustee are required to take pursuant to the Related Documents. In
furtherance thereof, the Issuer shall execute and deliver to the Administrator
and to each successor Administrator appointed pursuant to the terms hereof, one
or more powers of attorney substantially in the form of Exhibit A hereto,
appointing the Administrator the attorney-in-fact of the Issuer for the purpose
of executing on behalf of the Issuer all such documents, reports, filings,
instruments, certificates and opinions. Subject to Section 1.06, and in
accordance with the directions of the Owner Trustee, the Administrator shall
administer, perform or supervise the performance of such other activities in
connection with the Collateral (including the Related Documents) as are not
covered by any of the foregoing provisions and as are expressly requested by the
Owner Trustee and are reasonably within the capability of the
Administrator.
(f) Notwithstanding
anything in this Agreement or the Related Documents to the contrary, the
Administrator shall be responsible for promptly notifying the Owner Trustee in
the event that any withholding tax is imposed on the Issuer’s payments (or
allocations of income) to a Trust Certificateholder as contemplated in Section
5.02(c) of the Trust Agreement. Any such notice shall specify the amount of any
withholding tax required to be withheld by the Owner Trustee pursuant to such
provision.
(g) Notwithstanding
anything in this Agreement or the Related Documents to the contrary, the
Administrator shall be responsible for performance of the duties of the Owner
Trustee set forth in Section 5.05 of the Trust Agreement with respect to, among
other things, accounting and reports to Owners; provided, however, that the
Owner Trustee shall retain responsibility for the distribution of the Schedule
K-1’s, necessary to enable each Owner to prepare its federal and state income
tax returns; provided further, that such Schedule K-1’s have been prepared by
the Administrator and delivered to the Owner Trustee.
(h) The
Administrator shall perform any duties expressly required to be performed by the
Administrator under the Trust Agreement or the Indenture.
7
(i) In
carrying out the foregoing duties or any of its other obligations under this
Agreement, the Administrator may enter into transactions or otherwise deal with
any of its Affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any directions received
from the Issuer and shall be, in the Administrator’s opinion, no less favorable
to the Issuer than would be available from unaffiliated parties.
(j) With
respect to matters that in the reasonable judgment of the Administrator are
non-ministerial, the Administrator shall not take any action unless within a
reasonable time before the taking of such action, the Administrator shall have
notified the Owner Trustee of the proposed action and the Owner Trustee shall
not have withheld consent or provided an alternative direction. For the purpose
of the preceding sentence, “non-ministerial matters” shall include:
(i) the
amendment of or any supplement to the Indenture;
(ii) the
initiation of any claim or lawsuit by the Issuer and the compromise of any
action, claim or lawsuit brought by or against the Issuer (other than in
connection with the collection of the Receivables);
(iii) the
amendment, change or modification of the Basic Documents;
(iv)
the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the Indenture or the
appointment of successor Administrators or successor Servicers, or the consent
to the assignment by the Note Registrar, any Paying Agent or Indenture Trustee
of its obligations under the Indenture; and
(v)
the removal of the Indenture Trustee.
(k) Notwithstanding
anything to the contrary in this Agreement, the Administrator shall not be
obligated to, and shall not, (i) make any payments to the Noteholders under the
Related Documents, (ii) sell the Owner Trust Estate pursuant to Section 5.04 of
the Indenture, (iii) take any other action that the Issuer directs the
Administrator not to take on its behalf or (iv) take any other action which may
be construed as having the effect of varying the investment of the Trust
Certificateholders.
Section
1.03 Records. The
Administrator shall maintain appropriate books of account and records relating
to services performed hereunder, which books of account and records shall be
accessible for inspection by the Issuer and the Depositor at any time during
normal business hours.
Section
1.04 Compensation. As
compensation for the performance of the Administrator’s obligations under this
Agreement and as reimbursement for its expenses related thereto, the
Administrator shall be entitled to an annual payment of compensation which shall
be solely an obligation of the Depositor.
8
Section
1.05 Additional Information to be
Furnished to the Issuer. The Administrator shall furnish to
the Issuer from time to time such additional information regarding the
Collateral as the Issuer shall reasonably request.
Section
1.06 Independence of the
Administrator. For all purposes of this Agreement, the
Administrator shall be an independent contractor and shall not be subject to the
supervision of the Issuer or the Owner Trustee with respect to the manner in
which it accomplishes the performance of its obligations hereunder. Unless
expressly authorized by the Issuer, the Administrator shall have no authority to
act for or represent the Issuer or the Owner Trustee in any way and shall not
otherwise be deemed an agent of the Issuer or the Owner Trustee.
Section
1.07 No Joint
Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
Section
1.08 Other Activities of
Administrator. Nothing herein shall prevent the Administrator
or its Affiliates from engaging in other businesses or, in its sole discretion,
from acting in a similar capacity as an administrator for any other Person or
entity, even though such person or entity may engage in business activities
similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
Section
1.09 Term of Agreement;
Resignation and Removal of Administrator. This Agreement shall
continue in force until the dissolution of the Issuer, upon which event this
Agreement shall automatically terminate.
(a) Subject
to Sections 1.09(d) and 1.09(e), the Administrator may resign its duties
hereunder by providing the Issuer with at least 60 days’ prior written
notice.
(b) Subject
to Sections 1.09(d) and 1.09(e), the Issuer may remove the Administrator without
cause by providing the Administrator with at least 60 days’ prior written
notice.
(c) Subject
to Sections 1.09(d) and 1.09(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination from
the Issuer to the Administrator if any of the following events shall
occur:
(i) the
Administrator shall default in the performance of any of its duties under this
Agreement and, after notice of such default, shall not cure such default within
ten days (or, if such default cannot be cured in such time, shall not give
within ten days such assurance of cure as shall be reasonably satisfactory to
the Issuer);
(ii) the
existence of any proceeding or action, or the entry of a decree or order for
relief by a court or regulatory authority having jurisdiction over the
Administrator in an involuntary case under the federal bankruptcy laws, as now
or hereafter in effect, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Administrator or of any
substantial part of its
9
property,
or ordering the winding up or liquidation of the affairs of the Administrator
and the continuance of any such action, proceeding, decree or order unstayed
and, in the case of any such order or decree, in effect for a period of 90
consecutive days;
(iii) the
commencement by the Administrator of a voluntary case under the federal
bankruptcy laws, as now or hereafter in effect, or the consent by the
Administrator to the appointment of or taking of possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Administrator or of any substantial part of its property or the making by
the Administrator of an assignment for the benefit of creditors or the failure
by the Administrator generally to pay its debts as such debts become due or the
taking of corporate action by the Administrator in furtherance of any of the
foregoing; or
(iv) any
failure by the Administrator to deliver any information, report, certification,
compliance certificate, attestation or accountants’ letter when and as required
under Section 1.21 which continues unremedied for fifteen (15) calendar days
after the date on which such information, report, certification, compliance
certificate, attestation or accountants’ letter was required to be delivered.
The
Administrator agrees that if any of the events specified in clauses (ii) or
(iii) above shall occur, it shall give written notice thereof to the Issuer and
the Indenture Trustee within seven days after the occurrence of such
event.
(d) No
resignation or removal of the Administrator pursuant to this Section shall be
effective until (i) a successor Administrator shall have been appointed by the
Issuer, (ii) such successor Administrator shall have agreed in writing to be
bound by the terms of this Agreement in the same manner as the Administrator is
bound hereunder and (iii) such successor Administrator shall have agreed to
coordinate with the Depositor or AHFC regarding communications to the Rating
Agencies.
(e)
The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(f) Subject
to Sections 1.09(d) and 1.09(e), the Administrator acknowledges that upon the
appointment of a successor Servicer pursuant to the Sale and Servicing
Agreement, the Administrator shall immediately resign and such successor
Servicer shall automatically become the Administrator under this
Agreement.
Section
1.10 Action Upon Termination,
Resignation or Removal. Promptly upon the effective date of
termination of this Agreement pursuant to the first sentence of Section 1.09 or
the resignation or removal of the Administrator pursuant to Section 1.09(a), (b)
or (c), respectively, the Administrator shall be entitled to be paid all fees
and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to the first sentence of Section 1.09 deliver to the Issuer all
property and documents of or relating to the Collateral then in the custody of
the Administrator. In the event of the resignation or removal of the
Administrator pursuant to Section 1.09(a), (b) or (c), respectively, the
Administrator shall cooperate with the Issuer and
10
take all
reasonable steps requested to assist the Issuer in making an orderly transfer of
the duties of the Administrator.
Section
1.11 Notices. (a)
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, overnight
delivery service, by facsimile, by electronic mail (if an address therefore has
been provided by the respective party in writing), and addressed in each case as
follows: (i) if to the Issuer or the Owner Trustee, to: U.S. Bank Trust National
Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Services - Honda Auto Receivables 2010-3, (ii) if to
the Administrator, to: American Honda Finance Corporation, 00000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: President; (iii) if to the Depositor, to:
American Honda Receivables Corp., 00000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, Attention: President; and (iv) if to the Indenture Trustee, to: Deutsche
Bank Trust Company Americas, 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxxx Xxxx XXX00-2606,
New York, NY 10005, Attention: Asset Backed Securities Unit – Honda Auto
Receivables 2010-3, with a copy to Deutsche Bank National Trust Company,
Structured Finance Services ABS, 000 Xxxxx Xxx, 0xx Floor, Mail Stop
JCY03-0699, Jersey City, NJ 07311-3901; or to such other address as any party
shall have provided to the other parties in writing. Any notice
required to be in writing hereunder shall be deemed given if such notice is
mailed by certified mail, postage prepaid, sent by overnight delivery service,
by facsimile, by electronic mail (if an address therefore has been provided by
the respective party in writing), or hand-delivered to the address of such party
as provided above.
(b) (i) Notices
required to be given to each Rating Agency by the Administrator shall be in
writing, personally delivered, couriered or mailed by certified mail, return
receipt requested, electronic mail (if an address therefore has been provided by
the respective party in writing) or overnight delivery service to (i) in the
case of Xxxxx’x Investors Service, at the following address: 0 Xxxxx Xxxxx
Xxxxxx, 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
ABS/RMBS Monitoring Department, or via email to XxxxxxxxXxxxxxx@xxxxxx.xxx and (ii) in the case of
Fitch, at the following address: Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Auto ABS Surveillance Department, or via email to xxxxxxxxxxxxx.xxx@xxxxxxxxxxxx.xxx;
or at such other address (including electronic mail addresses) as shall be
designated by written notice to the party or parties providing notice under this
paragraph
(ii) Notwithstanding
Section 1.11(b) (i) above, notices required to be given to each Rating Agency
under this Agreement may be made available by the Administrator through a
website post, provided that the Administrator shall inform or cause each Rating
Agency to be informed in writing (including by electronic mail) that a notice
has been posted.
Section
1.12 Amendments. This
Agreement may be amended from time to time by a written amendment duly executed
and delivered by the parties hereto, with the written consent of the Owner
Trustee but without the consent of the Noteholders or the Certificateholders,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; provided, that
such amendment will not, in the Opinion of Counsel satisfactory to the Indenture
Trustee, materially and adversely affect the interest of any of the
11
Noteholders
or the Certificateholders. This Agreement may also be amended by the parties
hereto with the written consent of the Owner Trustee and the Holders of Notes
evidencing at least a majority of the Outstanding Amount and the Holders of
Trust Certificates evidencing at least a majority of the Percentage Interests
evidenced by the Trust Certificates for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment may (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on the Receivables or distributions that are required to
be made for the benefit of the Noteholders or the Certificateholders or (ii)
reduce the aforesaid percentage of the Holders of Notes and Trust Certificates
which are required to consent to any such amendment, without the written consent
of the Holders of all outstanding Notes and Trust Certificates. Notwithstanding
the foregoing, the Administrator may not amend this Agreement without the
permission of the Depositor, which permission shall not be unreasonably
withheld. Prior to its execution of any amendment to this Agreement,
the Owner Trustee and the Indenture Trustee shall be entitled to receive an
opinion of counsel, provided at the expense of the party requesting such
amendment, that such amendment is authorized and permitted by this
Agreement.
Section
1.13 Successors and
Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound
hereunder. Notwithstanding the foregoing, this Agreement may be
assigned by the Administrator without the consent of the Issuer or the Owner
Trustee to a corporation or other organization that is a successor (by merger,
consolidation or purchase of assets) to the Administrator; provided, that such
successor organization executes and delivers to the Issuer, the Owner Trustee
and the Indenture Trustee an agreement, in form and substance reasonably
satisfactory to the Owner Trustee and the Indenture Trustee, in which such
corporation or other organization agrees to be bound hereunder by the terms of
said assignment in the same manner as the Administrator is bound
hereunder. Subject to the foregoing, this Agreement shall bind any
successors or assigns of the parties hereto.
Section
1.14 Governing Law; Submission to
Jurisdiction; Waiver of Jury Trial. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Each
of the parties hereto hereby submits to the exclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
State court sitting in New York City for purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions contemplated
hereby. Each of the parties hereto hereby further irrevocably waives
any claim that any such courts lack jurisdiction over such party, and agrees not
to plead or claim, in any legal action or proceeding with respect to this
Agreement in any of the aforesaid courts, that any such court lacks
12
jurisdiction
over such party. Each of the parties hereto irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any claim
that any such proceeding brought in such a court has been brought in an
inconvenient forum.
Each
party hereto hereby waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any litigation directly
or indirectly arising out of, under or in connection with this
agreement.
Section
1.15 Headings. The
headings of the various Sections herein are for convenience of reference only
and shall not define or limit any of the terms or provisions
hereof.
Section
1.16 Counterparts. This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
Section
1.17 Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section
1.18 Limitation of Liability of
Owner Trustee and Indenture Trustee.
(a)
Notwithstanding anything contained
herein to the contrary, this instrument has been countersigned by U.S. Bank
Trust National Association, in its capacity as Owner Trustee of the Issuer and
in no event shall U.S. Bank Trust National Association, in its individual
capacity or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder, as to all of which recourse shall be had solely to the assets
of the Issuer. For all purposes of this Agreement, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles Six, Seven and Eight of the Trust Agreement as if specifically set
forth herein.
(b) Notwithstanding
anything contained herein to the contrary, this Agreement has been executed by
Deutsche Bank Trust Company Americas, in its capacity as Indenture Trustee under
the Indenture and in no event shall Deutsche Bank Trust Company Americas, in its
individual capacity have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
Section
1.19 Third-Party
Beneficiary. The Owner Trustee and other indemnitees hereunder
are third-party beneficiaries to this Agreement and are entitled to the rights
and benefits hereunder and may enforce the provisions hereof as if they were
parties hereto.
13
Section
1.20 Rights of the Indenture
Trustee. The Indenture Trustee shall be afforded the same
rights, protections, immunities and indemnities set forth in the Indenture as if
specifically set forth herein.
Section
1.21 Additional Requirements of
the Administrator.
(a) Reporting
Requirements.
(i) If
so requested by the Issuer for the purpose of satisfying its reporting
obligation under the Exchange Act with respect to any class of asset-backed
securities, the Administrator shall (i) notify the Issuer
in writing of any material litigation or governmental proceedings pending
against the Administrator and (ii) provide to the Issuer a description of such
proceedings.
(ii) As a
condition to the succession to Administrator as administrator by any Person as
permitted by Section 1.09 hereof the Administrator shall provide to the
succeeding Administrator, on behalf of the Issuer, at least 10 Business Days
prior to the effective date of such succession or appointment, (x) written
notice of such succession or appointment and (y) in writing all information in
order to comply with its reporting obligation under Item 6.02 of Form 8-K with
respect to any class of asset-backed securities.
(iii) In
addition to such information as the Administrator, as administrator, is
obligated to provide pursuant to other provisions of this Agreement, if so
requested by the Issuer, the Administrator shall provide such information
regarding the performance or servicing of the Receivables as is reasonably
required to facilitate preparation of distribution reports in accordance with
Item 1121 of Regulation AB.
(b) Administrator
Compliance Statement. On or before June 1st of each
calendar year, commencing in 2011, the Administrator shall deliver to the Issuer
a statement of compliance addressed to the Issuer and signed by an authorized
officer of the Administrator to the effect that (i) a review of the
Administrator’s activities during the immediately preceding reporting year (or
applicable portion thereof) and of its performance under this Agreement during
such period has been made under such officer’s supervision, and (ii) to the best
of such officer’s knowledge, based on such review, the Administrator has
fulfilled all of its obligations under this Agreement in all material respects
throughout such reporting year (or applicable portion thereof) or, if there has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the nature
and the status thereof. If the Administrator is the same party as the
Servicer, such party’s compliance with Section 3.11(a) of the Sale and Servicing
Agreement will satisfy the Administrator’s obligations set forth in this Section
1.21(b).
(c) Report
on Assessment of Compliance and Attestation
On or
before 90 days after the end of each fiscal year during which the Issuer is
required to file a report on Form 10-K with the Securities and Exchange
Commission, commencing with the fiscal year ended March 31, 2011, the
Administrator shall:
14
(i) deliver
to the Issuer and Owner Trustee a report (in form and substance reasonably
satisfactory to the Issuer) regarding the Administrator’s assessment of
compliance with the Servicing Criteria during the immediately preceding
reporting year, as required under Rules 13a-18 and 15d-18 of the Exchange Act
and Item 1122 of Regulation AB. Such report shall be addressed to the
Issuer and the Owner Trustee and signed by an authorized officer of the
Administrator, and shall address each of the Servicing Criteria specified in
Exhibit C hereto delivered to the Issuer and the Owner Trustee concurrently with
the execution of this Agreement;
(ii) deliver
to the Issuer and the Owner Trustee a report of a registered public accounting
firm reasonably acceptable to the Issuer that attests to, and reports on, the
assessment of compliance made by the Administrator and delivered pursuant to the
preceding paragraph. Such attestation shall be in accordance with
Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act; and
(iii) if
requested by the Issuer on or before May 1st of the
calendar year in which such certification is to be delivered, deliver to the
Issuer and the Owner Trustee and any other Person that will be responsible for
signing the certification a Sarbanes Certification on behalf of an asset-backed
issuer with respect to a securitization transaction a certification in the form
attached hereto as Exhibit B.
The
Administrator acknowledges that the parties identified in clause (a)(iii) above
may rely on the certification provided by the Administrator pursuant to such
clause in signing a Sarbanes Certification and filing such with the
Commission. The Issuer will not request delivery of a certification
under clause (a)(iii) above unless the Depositor is required under the Exchange
Act to file an annual report on Form 10-K with respect to an issuing entity
whose asset pool includes the Receivables.
If the
Administrator is the same party as the Servicer, such party’s compliance with
Section 3.12 of the Sale and Servicing Agreement will satisfy the
Administrator’s obligations set forth in this Section 1.21(c).
(d) Intent
of the Parties; Reasonableness. The Issuer and the
Administrator acknowledge and agree that the purpose of Section 1.21
of this Agreement is to facilitate compliance by the Issuer with the provisions
of Regulation AB and related rules and regulations of the
Commission.
Neither
the Issuer nor the Administrator shall exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Administrator acknowledges that the
requirements of, and that the interpretations of the requirements of Regulation
AB may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, amendments to the regulation, or
otherwise, and agrees to comply with requests made by the Indenture Trustee,
the
15
Servicer
or any other party to the Transaction Documents in good faith for delivery of
information under these provisions on the basis of evolving interpretations and
rules of Regulation AB. In connection therewith, the Administrator
shall cooperate fully with the Administrator, on behalf of the Issuer to deliver
to the Administrator, on behalf of the Issuer (including any of its assignees or
designees), any and all statements, reports, certifications, records and any
other information necessary in the good faith determination of the
Administrator, on behalf of the Issuer, to permit the Administrator, on behalf
of the Issuer, to comply with the provisions of Regulation AB.
The
Issuer (including any of its assignees or designees) shall cooperate with the
Administrator by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required, in
the Administrator’s, on behalf of the Issuer, reasonable judgment, to comply
with Regulation AB.
16
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
HONDA
AUTO RECEIVABLES 2010-3 OWNER
|
|
TRUST,
|
|
as
Issuer
|
|
By:
|
U.S.
BANK TRUST NATIONAL
|
ASSOCIATION,
|
|
not
in its individual capacity
|
|
but
solely as Owner Trustee
|
|
By:
|
/s/ Xxxxxxxx X. Xxxxx |
Name:
Xxxxxxxx X. Xxxxx
|
|
Title:
Vice President
|
|
AMERICAN
HONDA RECEIVABLES CORP.,
|
|
as
Depositor
|
|
By:
|
/s/ Xxxx X. Xxxxx |
Name:
Xxxx X. Xxxxx
|
|
Title:
Treasurer
|
|
"Deutsche
Bank National Trust Company for"
DEUTSCHE
BANK TRUST COMPANY
|
|
AMERICAS,
|
|
not
in its individual capacity but solely as
|
|
Indenture
Trustee
|
|
By:
|
/s/ Xxxx XxXxxxxxx
|
Name:
Xxxx XxXxxxxxx
|
|
Title:
Asst. Vice President
|
|
By:
|
/s/ Xxxxxxxx Xxxxx
|
Name:
Xxxxxxxx Xxxxx
|
|
Title:
Associate
|
|
AMERICAN
HONDA FINANCE
|
|
CORPORATION,
|
|
as
Administrator
|
|
By:
|
/s/ Xxxx X. Xxxxx |
Name: Xxxx
X. Xxxxx
|
|
Title:
Vice President - Finance & Administration, Assistant
Secretary and Compliance
Officer
|
EXHIBIT
A
POWER OF
ATTORNEY PURSUANT TO
SECTION
1.02(c) OF ADMINISTRATION AGREEMENT
KNOW ALL
MEN BY THESE PRESENTS, that Honda Auto Receivables 2010-3 Owner Trust, a
Delaware statutory trust (the “Issuer”), does hereby appoint American Honda
Finance Corporation, a California corporation (the “Grantee”), located at 00000
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, as its attorney-in-fact with full
power of substitution and hereby authorizes and empowers the Grantee, in the
name of and on behalf of the Grantor or the Issuer, to take the following
actions from time to time with respect to the duties of the Administrator under
the Administration Agreement, dated as of October 1, 2010 (the “Administration
Agreement”), among the Issuer, the Administrator, American Honda Receivables
Corp., as depositor and Deutsche Bank Trust Company Americas, as indenture
trustee, for the purpose of executing on behalf of the Grantor or the Issuer all
such documents, reports, filings, instruments, certificates and opinions
required pursuant to the Related Documents:
The
Grantee is hereby empowered to do any and all lawful acts necessary or desirable
to effect the performance of the duties under the Administration Agreement and
the Grantor hereby ratifies and confirms any and all lawful acts the Grantee
shall undertake pursuant to and in conformity with this Power of
Attorney.
This
Power of Attorney is revocable in whole or in part as to the powers herein
granted upon notice by the Grantor. If not earlier revoked, this Power of
Attorney shall expire completely or, if so indicated, in part, upon the earlier
of (i) the termination of the amended and restated trust agreement, dated
October 28, 2010 (the “Trust Agreement”), between American Honda Receivables
Corp., as depositor and U.S. Bank Trust National Association, as Owner Trustee
or (ii) the termination of the Administration Agreement, as each may be amended,
restated or supplemented from time to time. Capitalized terms used herein that
are not otherwise defined shall have the meanings ascribed thereto in the Trust
Agreement or the Administration Agreement, as the case may be.
THIS
POWER OF ATTORNEY SHALL BE CREATED UNDER AND GOVERNED AND CONSTRUED UNDER THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
The
Grantor executes this Power of Attorney with the intent to be legally bound
hereby, and with the intent that such execution shall have the full dignity
afforded by the accompanying witnessing and notarization and all lesser dignity
resulting from the absence of such witnessing and notarization or any
combination thereof.
A-1
Dated
this __ day of October, 2010.
[Seal]
|
HONDA
AUTO RECEIVABLES 2010-3 OWNER
|
|||
TRUST,
|
||||
as
Issuer
|
||||
By:
|
U.S.
BANK TRUST NATIONAL
|
|||
ASSOCIATION,
|
||||
not
in its individual capacity
|
||||
but
solely as Owner Trustee
|
||||
By:
|
||||
Name:
|
||||
Title:
|
||||
Signed
and delivered in the presence of.
|
||||
Address:
|
||||
A-2
EXHIBIT
B
FORM OF
SARBANES CERTIFICATE
I,
[____________], certify that:
1. I have
reviewed this report on Form 10-K and all reports on Form 10-D required to be
filed in respect of the period covered by this report on Form 10-K of Honda Auto
Receivables 2010-3 Owner Trust (the “Exchange Act periodic
reports”);
2. Based
on my knowledge, the Exchange Act periodic reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
this report;
3. Based
on my knowledge, all of the distribution, servicing and other information
required to be provided under Form 10-D for the period covered by this report is
included in the Exchange Act periodic reports;
4. I am
responsible for reviewing the activities performed by the servicers and based on
my knowledge and the compliance reviews conducted in preparing the servicer
compliance statements required in this report under Item 1123 of Regulation AB,
and except as disclosed in the Exchange Act periodic reports, the servicers have
fulfilled their obligations under the servicing agreements in all material
respects; and
5. All
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included in
this report in accordance with Item 1122 of Regulation AB and Exchange Act Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
In giving
the certifications above, I have reasonably relied on information provided to me
by the following unaffiliated parties: [_____________]
Date:
[____________]
By:
|
|
Name:
|
[_________]
|
Title:
|
[_________]
|
B-1
EXHIBIT
C
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Administrator, shall address, at
a minimum, the criteria identified as below as “Applicable Servicing
Criteria”:
Reference
|
Criteria
|
|||
General
Servicing Considerations
|
||||
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other triggers
and events of default in accordance with the transaction
agreements.
|
|||
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|||
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up servicer
for the receivables are maintained.
|
|||
Cash
Collection and Administration
|
||||
1122(d)(2)(i)
|
Payments
on receivables are deposited into the appropriate custodial bank accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
|||
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor are made
only by authorized personnel.
|
|||
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|||
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth in the
transaction agreements.
|
|||
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|||
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|||
1122(d)(2)(vii)
|
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement cutoff date, or
such other number of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
|
C-1
Reference
|
Criteria
|
|||
Investor
Remittances and Reporting
|
||||
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the
terms specified in the transaction agreements; (C) are filed with the
Commission as required by its rules and regulations; and (D) agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of receivables serviced by the
Servicer.
|
|||
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|||
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|||
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|||
Pool
Asset Administration
|
||||
1122(d)(4)(i)
|
Collateral
or security on receivables is maintained as required by the transaction
agreements or related receivables documents.
|
|||
1122(d)(4)(ii)
|
Receivables
and related documents are safeguarded as required by the transaction
agreements
|
|||
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made, reviewed
and approved in accordance with any conditions or requirements in the
transaction agreements.
|
|||
1122(d)(4)(iv)
|
Payments
on receivables, including any payoffs, made in accordance with the related
receivables documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such other
number of days specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in accordance with the
related receivables documents.
|
|||
1122(d)(4)(v)
|
The
Servicer’s records regarding the receivables agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|||
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's receivables (e.g.,
loan modifications or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction agreements and
related pool asset documents.
|
|||
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the transaction
agreements.
|
|||
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
receivable is delinquent in accordance with the transaction agreements.
Such records are maintained on at least a monthly basis, or such other
period specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent receivables including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|||
1122(d)(4)(ix)
|
|
Adjustments
to interest rates or rates of return for receivables with variable rates
are computed based on the related receivables documents.
|
|
C-2
Reference
|
Criteria
|
|||
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the obligor’s receivables
documents, on at least an annual basis, or such other period specified in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable receivables documents
and state laws; and (C) such funds are returned to the obligor within 30
calendar days of full repayment of the related receivables, or such other
number of days specified in the transaction agreements.
|
|||
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|||
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|||
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded in
accordance with the transaction agreements.
|
|||
1122(d)(4)(xv)
|
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth in
the transaction agreements.
|
|
C-3