Exhibit 99.4
EXECUTED VERSION
AMERICAN HONDA RECEIVABLES CORP.,
as Seller,
HONDA AUTO RECEIVABLES 2007-3 OWNER TRUST,
as Initial Secured Party,
AMERICAN HONDA FINANCE CORPORATION,
as Servicer
THE BANK OF NEW YORK,
as Indenture Trustee,
as Assignee-Secured Party,
and
THE BANK OF NEW YORK,
as Securities Intermediary
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CONTROL AGREEMENT
Dated as of August 1, 2007
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS
Section 1.01. General Definitions.............................................................. 1
Section 1.02. Incorporation of UCC by Reference................................................ 2
ARTICLE TWO
ESTABLISHMENT OF CONTROL OVER SECURITIES ACCOUNTS
Section 2.01. Establishment of Securities Accounts............................................. 2
Section 2.02. "Financial Assets" Election...................................................... 3
Section 2.03. Entitlement Orders............................................................... 3
Section 2.04. Subordination of Lien, Waiver of Set-Off......................................... 3
Section 2.05. Notice of Adverse Claims......................................................... 3
ARTICLE THREE
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SECURITIES INTERMEDIARY
Section 3.01. Representations, Warranties and Covenants of the Securities Intermediary......... 4
Section 3.02. Duties and Liabilities of the Securities Intermediary Generally.................. 4
ARTICLE FOUR
MISCELLANEOUS
Section 4.01. Choice of Law.................................................................... 5
Section 4.02. Conflict with other Agreements................................................... 6
Section 4.03. Amendments....................................................................... 6
Section 4.04. Successors....................................................................... 6
Section 4.05. Notices.......................................................................... 6
Section 4.06. Termination...................................................................... 6
Section 4.07. Counterparts..................................................................... 6
Section 4.08. Limitation of Liability of Owner Trustee......................................... 6
Section 4.09. Rights of the Indenture Trustee.................................................. 7
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This Control Agreement, dated as of August 1, 2007 (this "Agreement"), is
among American Honda Receivables Corp. (the "Seller"), Honda Auto Receivables
2007-3 Owner Trust (the "Initial Secured Party"), American Honda Finance
Corporation (the "Servicer"), The Bank of New York, as indenture trustee (the
"Assignee-Secured Party"), and The Bank of New York, as securities intermediary
(the "Securities Intermediary").
RECITALS
WHEREAS, pursuant to the Sale and Servicing Agreement, the Seller has
transferred to the Initial Secured Party, investment property consisting of
Securities Accounts (hereinafter defined), related securities entitlements and
the financial assets and other investment property from time to time included
therein (collectively, the "Investment Property").
WHEREAS, the Initial Secured Party has pledged and assigned its rights in
the Investment Property to the Assignee-Secured Party pursuant to the Indenture
to secure payment of the Notes;
WHEREAS, pursuant to the Indenture, on the date on which the lien of the
Indenture is released, rights with respect to the Investment Property shall be
transferred back to the Initial Secured Party;
WHEREAS, the parties hereto desire (i) that the security interest of the
Assignee-Secured Party be a first priority security interest perfected by
"control" pursuant to Articles Eight and Nine of the UCC and (ii) to make
provision for the perfection in a similar manner of the Initial Secured Party's
security interest following release of the lien of the Indenture.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. General Definitions. Except as otherwise specified herein or
as the context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Agreement.
"Agreement" has the meaning set forth in the Preamble.
"Assignee-Secured Party" has the meaning set forth in the Preamble.
"Entitlement Holder" means, with respect to any financial asset, a Person
identified in the records of the Securities Intermediary as the Person having a
Security Entitlement against the Securities Intermediary with respect to such
financial asset.
"Indenture" means the Indenture, dated as of August 1, 2007, between the
Initial Secured Party and the Assignee-Secured Party.
"Initial Secured Party" has the meaning set forth in the Preamble.
"Notes" has the meaning set forth in the Indenture.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Securities Accounts" means account number 190902 in the name "Honda Auto
2007-3 Owner Trust Reserve Fund Account" and account number 190903 in the name
"Honda Auto 2007-3 Owner Trust Yield Supplement Account", established with the
Securities Intermediary, or an affiliate thereof, pursuant to the Indenture,
together with any successor accounts established pursuant to the Indenture, or,
after release of the lien of the Indenture, the Trust Agreement.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of August 1, 2007, between the Seller and the Initial Secured Party.
"Secured Obligations" has the meaning set forth in the Sale and Servicing
Agreement.
"Servicer" has the meaning set forth in the Preamble.
"Seller" has the meaning set forth in the Preamble.
"Trust Agreement" means the trust agreement dated July 17, 2007, as
amended and restated on August 23, 2007, among the Seller, Citibank, N.A., as
owner trustee (not in its individual capacity, but solely as owner trustee, the
"Owner Trustee") and Citigroup Institutional Tust Company, as Delaware trustee
(the "Delaware Trustee").
"UCC" means the Uniform Commercial Code as in effect in the State of New
York on the date hereof.
Section 1.02. Incorporation of UCC by Reference. Except as otherwise
specified herein or as the context may otherwise require, all terms used in this
Agreement not otherwise defined herein which are defined in the UCC shall have
the meanings assigned to them in the UCC.
ARTICLE TWO
ESTABLISHMENT OF CONTROL OVER SECURITIES ACCOUNTS
Section 2.01. Establishment of Securities Accounts. The Securities
Intermediary hereby confirms that (i) the Securities Intermediary has
established the Securities Accounts listed in the definition thereof, (ii) each
Securities Account is an account to which financial assets are or may be
credited, (iii) the Securities Intermediary shall, subject to the terms of this
Agreement and the Indenture, treat the Assignee-Secured Party as entitled to
exercise the rights that comprise any financial asset credited to each
Securities Account, (iv) all property delivered to the Securities Intermediary
by or on behalf of the Assignee-Secured Party or the Initial Secured
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Party for deposit to one of the Securities Accounts will promptly be credited to
that Securities Account and (v) all securities or other property underlying any
financial assets credited to any of the Securities Accounts shall be registered
in the name of the Securities Intermediary, endorsed to the Securities
Intermediary or in blank or credited to another securities account maintained in
the name of the Securities Intermediary and in no case will any financial asset
credited to any Securities Account be registered in the name of the Seller,
payable to the order of the Seller or specially endorsed to the Seller except to
the extent the foregoing have been specially endorsed to the Securities
Intermediary or in blank.
Section 2.02. "Financial Assets" Election. The Securities Intermediary
hereby agrees that each item of property (whether investment property, financial
asset, security, instrument or cash) credited to each Securities Account shall
be treated as a "financial asset" within the meaning of Section 8-102(a)(9) of
the UCC.
Section 2.03. Entitlement Orders. If at any time the Securities
Intermediary shall receive any written order from the Assignee-Secured Party
directing transfer or redemption of any financial asset relating to any
Securities Account, the Securities Intermediary shall comply with such order
without further consent by the Seller, the Servicer, the Initial Secured Party
or any other Person. If at any time the Assignee-Secured Party notifies the
Securities Intermediary in writing that the lien of the Indenture has been
released, the Securities Intermediary shall thereafter comply with orders with
respect to directing transfer or redemption of any financial asset relating to
any Securities Account from the Initial Secured Party without further consent by
the Seller, the Servicer or any other Person. The Securities Intermediary shall
have no obligation to transfer or redeem the financial assets credited to the
Securities Accounts, and shall be fully protected in refraining from making any
such transfer or redemption in the absence of such Entitlement Orders, or prior
to the receipt of any Entitlement Order.
Section 2.04. Subordination of Lien, Waiver of Set-Off. In the event that
the Securities Intermediary has or subsequently obtains by agreement, operation
of law or otherwise a security interest in any Securities Account or any
security entitlement credited thereto, the Securities Intermediary hereby agrees
that such security interest shall be subordinate to the security interests of
the Assignee-Secured Party and the Initial Secured Party. The financial assets
and other items deposited to the Securities Account will not be subject to
deduction, set-off, banker's lien or any other right in favor of any Person or
entity other than the Assignee-Secured Party (except that the Securities
Intermediary may set off against amounts on deposit in each Securities Account
(i) all amounts due to it in respect of its customary fees and expenses for the
routine maintenance and operation of such Securities Account, and (ii) the face
amount of any checks which have been credited to such Securities Account but are
subsequently returned unpaid because of uncollected or insufficient funds).
Notwithstanding anything contained herein to the contrary, the Securities
Intermediary shall have a lien senior to that of the Assignee-Secured Party for
any and all amounts required for the payment of the purchase price of a
financial asset, which purchase has been placed but not cleared or settled.
Section 2.05. Notice of Adverse Claims. Except for the claims and interests
of the Initial Secured Party and the Assignee-Secured Party in the Securities
Accounts, the Securities Intermediary does not have actual knowledge (without
any obligation of independent inquiry or
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investigation) of any claim to, or interest in, the Securities Accounts or in
any financial asset credited thereto. If any Person asserts any lien,
encumbrance or adverse claim (including any writ, garnishment, judgment, warrant
of attachment, execution or similar process) against any Securities Account or
in any financial asset carried therein, the Securities Intermediary to the
extent it has actual knowledge thereof, will promptly notify the
Assignee-Secured Party, the Initial Secured Party and the Seller thereof to the
extent an officer in its corporate trust and agency group has actual knowledge
thereof.
ARTICLE THREE
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SECURITIES INTERMEDIARY
Section 3.01. Representations, Warranties and Covenants of the Securities
Intermediary. The Securities Intermediary hereby represents and warrants to the
Assignee-Secured Party, the Initial Secured Party and the Seller, and covenants
that:
(a) Each Securities Account has been established in New York, New York
as set forth in Section 2.01 and such Securities Accounts will be maintained in
the manner set forth herein until termination of this Agreement. The Securities
Intermediary shall not change the name or account number of any Securities
Account without the prior written consent of the Assignee-Secured Party (or,
after receipt of notice pursuant to Section 2.03 that the lien of the Indenture
has been released, the Initial Secured Party).
(b) No financial asset is or will be registered in the name of the
Seller, payable to the order of the Seller, or specially endorsed to the Seller,
except to the extent such financial asset has been endorsed to the Securities
Intermediary or in blank.
(c) This Agreement is the valid and legally binding obligation of the
Securities Intermediary.
(d) The Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any agreement with any other
Person relating to any of the Securities Accounts or any financial assets
credited thereto pursuant to which it agrees to comply with entitlement orders
of such Person.
(e) The Securities Intermediary has not entered into any other
agreement with the Seller, the Assignee-Secured Party or the Initial Secured
Party purporting to limit or condition the obligation of the Securities
Intermediary to comply with entitlement orders as set forth in Section 2.03.
Section 3.02. Duties and Liabilities of the Securities Intermediary
Generally.
(a) The Securities Intermediary shall be entitled to the same rights
set forth with respect to the Indenture Trustee pursuant to Section 6.02 of the
Indenture, except that Section 6.02(c) thereunder shall not apply to the
Securities Intermediary, and such provisions are incorporated by reference
herein.
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(b) The Securities Intermediary undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement, and the
Securities Intermediary shall take such action with respect to this Agreement as
it shall be directed pursuant to Section 2.03.
(c) No provision of this Agreement shall require the Securities
Intermediary to expend or risk its own funds or otherwise incur financial
liability 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 to believe
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) The Securities Intermediary may at any time resign by giving 30
days written notice of resignation to the Initial Secured Party and the Seller;
provided however that no such resignation of the Securities Intermediary shall
be effective until a successor Securities Intermediary has been appointed and is
serving pursuant to the terms hereof. Upon receiving notice of such resignation,
the Initial Secured Party shall promptly appoint a successor and, upon
acceptance by the successor of such appointment, release the resigning Successor
Intermediary from its obligations hereunder by written instrument, a copy of
which instrument shall be delivered to the other parties hereto, the Securities
Intermediary and the successor Securities Intermediary. 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 Securities Intermediary may
petition any court of competent jurisdiction for the appointment of such
successor.
(e) The Servicer shall indemnify the Securities Intermediary and its
officers, directors, employees and agents against any and all loss, liability or
expense (including reasonable attorneys' fees and expenses) incurred by it in
connection with the administration of this trust and the performance of its
duties hereunder not resulting from its own willful misconduct, negligence or
bad faith. The Securities Intermediary shall notify the Servicer promptly of any
claim for which it may seek indemnity. Failure by the Securities Intermediary to
so notify the Servicer shall not relieve the Servicer of its obligations
hereunder. The Servicer need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Indenture Trustee through the
Securities Intermediary's own willful misconduct, negligence or bad faith. The
provisions of this Section 3.02(e) shall survive the termination of this
Agreement or the earlier resignation or removal of the Securities Intermediary.
ARTICLE FOUR
MISCELLANEOUS
Section 4.01. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK. REGARDLESS OF ANY PROVISION IN ANY OTHER AGREEMENT,
FOR PURPOSES OF THE UCC, NEW YORK SHALL BE DEEMED TO BE THE SECURITIES
INTERMEDIARY'S LOCATION AND EACH SECURITIES ACCOUNT (AS WELL AS THE SECURITY
ENTITLEMENTS RELATED THERETO) SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
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Section 4.02. Conflict with other Agreements. There are no other agreements
entered into between the Securities Intermediary in such capacity and the Seller
or the Initial Secured Party with respect to any Securities Accounts. In the
event of any conflict between this Agreement (or any portion thereof) and any
other agreement now existing or hereafter entered into, the terms of this
Agreement shall prevail.
Section 4.03. Amendments. No amendment or modification of this Agreement or
waiver of any right hereunder shall be binding on any party hereto unless it is
in writing and is signed by all of the parties hereto.
Section 4.04. Successors. The terms of this Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
corporate successors.
Section 4.05. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, or
overnight delivery service to, in the case of (i) the Seller, at 00000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (telecopier no. (000) 000-0000), Attention:
President; (ii) the Initial Secured Party c/o Citibank, N.A., 000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, with a copy to American Honda
Finance Corporation, as Administrator, at 00000 Xxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000 (telecopier no. (000) 000-0000), (iii) the Assignee-Secured
Party, at The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Asset Backed Securities Unit - Honda Auto Receivables
2007-3, and (iv) the Securities Intermediary, at The Bank of New York, 000
Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed
Securities Unit - Honda Auto Receivables 2007-3, or as to any of such parties,
at such other address as shall be designated by such party in a written notice
to the other parties.
Section 4.06. Termination. The rights and powers granted herein to the
Assignee-Secured Party have been granted in order to perfect its security
interest in the Securities Accounts, are powers coupled with an interest and
will neither be affected by the bankruptcy of the Seller nor by the lapse of
time. The obligations of the Securities Intermediary hereunder shall continue in
effect with respect to the Securities Accounts until the Assignee-Secured Party
and the Initial Secured Party (or, after the Securities Intermediary has been
notified of the release of the lien of the Indenture pursuant to Section 2.03,
the Initial Secured Party) have notified the Securities Intermediary in writing
that their respective security interests under the Indenture and the Trust
Agreement have been terminated.
Section 4.07. Counterparts. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
Section 4.08. Limitation of Liability of Owner Trustee. Notwithstanding
anything contained herein to the contrary, this Agreement has been countersigned
by Citibank, N.A., not in its individual capacity but solely in its capacity as
Owner Trustee of the Issuer and in no event shall Citibank, N.A., in its
individual capacity or, except as expressly provided in the Trust Agreement, as
Owner Trustee of the Issuer have any liability for the representations,
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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. For
all purposes of this Agreement, in the performance of its duties or obligations
hereunder or 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.
Section 4.09. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
AMERICAN HONDA RECEIVABLES CORP.,
By:
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Name:
Title:
HONDA AUTO RECEIVABLES 2007-3 OWNER
TRUST,
By: CITIBANK, N.A.,
not in its individual capacity but
solely in its capacity as Owner
Trustee of Honda Auto Receivables
2007-3 Owner Trust,
By:
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Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity but
solely in its capacity as Indenture
Trustee, as Assignee-Secured Party
and as Securities Intermediary
By:
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Name:
Title:
AMERICAN HONDA FINANCE CORPORATION,
as Servicer
By:
------------------------------------
Name:
Title:
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