EXECUTION COPY
HONDA AUTO RECEIVABLES 2008-1 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 AGREEMENT
Dated as of June 1, 2008
TABLE OF CONTENTS
Page
----
Section 1.01 Capitalized Terms; Interpretive Provisions...................... 1
Section 1.02 Duties of the Administrator..................................... 2
Section 1.03 Records......................................................... 7
Section 1.04 Compensation.................................................... 7
Section 1.05 Additional Information to be Furnished to the Issuer............ 8
Section 1.06 Independence of the Administrator............................... 8
Section 1.07 No Joint Venture................................................ 8
Section 1.08 Other Activities of Administrator............................... 8
Section 1.09 Term of Agreement; Resignation and Removal of Administrator..... 8
Section 1.10 Action Upon Termination, Resignation or Removal................. 9
Section 1.11 Notices......................................................... 10
Section 1.12 Amendments...................................................... 10
Section 1.13 Successors and Assigns.......................................... 11
Section 1.14 Governing Law................................................... 11
Section 1.15 Headings........................................................ 11
Section 1.16 Counterparts.................................................... 11
Section 1.17 Severability.................................................... 11
Section 1.18 Limitation of Liability of Owner Trustee and Indenture Trustee.. 11
Section 1.19 Third-Party Beneficiary......................................... 12
Section 1.20 Rights of the Indenture Trustee................................. 12
Section 1.21 Additional Requirements of the Administrator.................... 12
EXHIBITS
Exhibit A - Form of Power of Attorney.......................................... A-1
Exhibit B - Form of Annual Certification....................................... X-0
Xxxxxxx X - Xxxxxxxxx Xxxxxxxx to be Addressed in Assessment of Compliance..... C-1
This Administration Agreement, dated as of June 1, 2008 (the "Agreement"),
is among Honda Auto Receivables 2008-1 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 June 26, 2008 (the "Trust Agreement"), between the
Depositor and U.S. Bank Trust National Association, as owner trustee (the "Owner
Trustee");
WHEREAS, the Issuer is issuing 2.91645% Asset Backed Notes, Class A-1,
3.77% Asset Backed Notes, Class A-2, 4.47% Asset Backed Notes, Class A-3 and
4.88% 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 June
25, 2008 (the "Note Depository Agreement" and, together with this Agreement, the
Indenture, the Sale and Servicing Agreement, the Control Agreement and the Trust
Agreement, the "Related Documents"), among the Issuer, the Indenture Trustee and
The Depository Trust Company;
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 of the 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));
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(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 MD. Fin. Inst. Code Xxx., 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 the Rating
Agencies 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 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);
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(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 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 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);
(xix) 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);
(xx) 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);
(xxi) 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);
(xxii) 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);
(xxiii) 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);
(xxiv) 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);
(xxv) 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);
(xxvi) the preparation of Issuer Requests, the obtaining of Opinions
of Counsel and the certification to the Indenture Trustee with respect to
the execution of
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supplemental indentures and the mailing to the Noteholders of notices with
respect to such supplemental indentures (Sections 9.01 and 9.02);
(xxvii) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.06);
(xxviii) the duty to notify Noteholders and the Rating Agencies of
redemption of the Notes or to cause the Indenture Trustee to provide such
notification (Sections 10.01 and 10.02);
(xxix) 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));
(xxx) 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));
(xxxi) 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
(xxxii) 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 and
the Owner Trustee upon either party's request for all reasonable expenses
(including in connection with the removal and/or 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
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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) In addition to the duties set forth in Sections 1.02(a) and (b), 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.
(d) 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.
(e) 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.
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(f) The Administrator shall perform any duties expressly required to be
performed by the Administrator under the Trust Agreement or the Indenture.
(g) 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.
(h) 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.
(i) 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
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thereto, the Administrator shall be entitled to an annual payment of
compensation which shall be solely an obligation of the Depositor.
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);
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(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
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 and (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.
(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
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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 take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator.
Section 1.11 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, overnight delivery service or by telecopier (followed by hard copy by
overnight delivery), and addressed in each case as follows: (a) 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 2008-1, (b) if to the Administrator, to:
American Honda Finance Corporation, 00000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, Attention: President; (c) if to the Depositor, to: American Honda
Receivables Corp., 00000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention:
President; and (d) if to the Indenture Trustee, to: Deutsche Bank Trust Company
Americas, 00 Xxxx Xxxxxx, 00xx Xxxxx, Mail Stop NYC60-2606, Xxx Xxxx, XX 00000,
Attention: Asset Backed Securities Unit - Honda Auto Receivables 2008-1, with a
copy to Deutsche Bank National Trust Company, Structured Finance Services-ABS,
00 XxXxxxxx Xxxxxx, 0xx Xxxxx - XX-XXX00-0000, Xxxxxx, XX 00000; 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 or hand-delivered to the address of such party as provided above.
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 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
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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. 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.
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
11
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.
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 2009, 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
12
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,
2009, the Administrator shall:
(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 1 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.
13
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
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, or otherwise, and agrees to comply with requests made by the Indenture
Trustee, the 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 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.
14
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 2008-1 OWNER
TRUST,
as Issuer
By: U.S. BANK TRUST NATIONAL
ASSOCIATION,
not in its individual capacity
but solely as Owner Trustee
By:
------------------------------------
Name:
Title:
AMERICAN HONDA RECEIVABLES CORP.,
as Depositor
By:
------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Indenture Trustee
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
AMERICAN HONDA FINANCE CORPORATION,
as Administrator
By:
------------------------------------
Name:
Title:
EXHIBIT A
POWER OF ATTORNEY PURSUANT TO
SECTION 1.02(c) OF ADMINISTRATION AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that Honda Auto Receivables 2008-1 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 June 1, 2008 (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 June
26, 2008 (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 June, 2008.
[Seal] HONDA AUTO RECEIVABLES 2008-1 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: _______________________________
[Unofficial Witness]
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 [___] 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
