AMERICAN HONDA RECEIVABLES CORP., as Seller, HONDA AUTO RECEIVABLES 2010-2 OWNER TRUST, as Initial Secured Party, AMERICAN HONDA FINANCE CORPORATION, as Servicer THE BANK OF NEW YORK MELLON, as Indenture Trustee, as Assignee-Secured Party, and THE...
Exhibit
99.4
EXECUTION
COPY
AMERICAN
HONDA RECEIVABLES CORP.,
as
Seller,
as
Initial Secured Party,
AMERICAN
HONDA FINANCE CORPORATION,
as
Servicer
THE BANK
OF NEW YORK MELLON,
as
Indenture Trustee,
as
Assignee-Secured Party,
and
THE BANK
OF NEW YORK MELLON,
as
Securities Intermediary
TABLE OF
CONTENTS
UPage
|
DEFINITIONS
|
1
|
|
|
Section
1.01.
|
General
Definitions
|
1
|
|
Section
1.02.
|
Incorporation of UCC by
Reference
|
2
|
|
ARTICLE
TWO
|
ESTABLISHMENT
OF CONTROL OVER SECURITIES ACCOUNTS
|
2
|
|
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
|
4
|
|
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
|
5
|
|
Section
4.01.
|
Choice of Law;
Submission to Jurisdiction; Waiver of Jury Trial
|
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
|
7
|
|
Section
4.07.
|
Counterparts
|
7
|
|
Section
4.08.
|
Limitation of
Liability of Owner Trustee
|
7
|
|
Section
4.09.
|
Rights of the
Indenture Trustee
|
7
|
-i-
This
Control Agreement, dated as of May 1, 2010 (this “UAgreementU”), is
among American Honda Receivables Corp. (the “USellerU”), Honda
Auto Receivables 2010-2 Owner Trust (the “UInitial Secured
PartyU”),
American Honda Finance Corporation (the “Servicer”), The Bank of New York
Mellon, as indenture trustee (the “UAssignee-Secured
PartyU”), and
The Bank of New York Mellon, as securities intermediary (the “USecurities
IntermediaryU”).
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. UGeneral
DefinitionsU. 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.
“UAgreementU” has the
meaning set forth in the Preamble.
“UAssignee-Secured
PartyU” has the
meaning set forth in the Preamble.
“UEntitlement
HolderU” 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.
“UIndentureU” means
the Indenture, dated as of May 1, 2010, between the Initial Secured Party and
the Assignee-Secured Party.
“UInitial Secured
PartyU” has the
meaning set forth in the Preamble.
“UNotesU” has the
meaning set forth in the Indenture.
“UPersonU” 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.
“USecurities
AccountsU” means
account number 190615 in the name “Honda Auto 2010-2 Owner Trust Reserve Fund
Account” and account number 190616 in the name “Honda Auto 2010-2 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.
“USale and Servicing
AgreementU” means
the Sale and Servicing Agreement, dated as of May 1, 2010, between the Seller
and the Initial Secured Party.
“USecured
ObligationsU” has the
meaning set forth in the Sale and Servicing Agreement.
“UServicerU” has the
meaning set forth in the Preamble.
“USellerU” has the
meaning set forth in the Preamble.
“UTrust AgreementU” means
the trust agreement dated April 16, 2010, as amended and restated on May 18,
2010, between the Seller Deutsche Bank Trust Company Delaware, as owner trustee
(not in its individual capacity, but solely as owner trustee, the “Owner
Trustee”), and Deutsche Bank Trust Company Americas, as certified registrar,
paying agent and authenticating agent.
“UUCCU” means
the Uniform Commercial Code as in effect in the State of New York on the date
hereof.
Section
1.02. UIncorporation of UCC by
ReferenceU. 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. UEstablishment of Securities
AccountsU. 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 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.
-2-
Section
2.02. U“Financial Assets”
ElectionU. 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. UEntitlement
OrdersU. 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. USubordination of Lien,
Waiver of Set-OffU. 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. UNotice of Adverse
ClaimsU. 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
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.
-3-
ARTICLE
THREE
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE SECURITIES INTERMEDIARY
Section
3.01. URepresentations, Warranties
and Covenants of the Securities IntermediaryU. 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 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. UDuties and Liabilities of
the Securities Intermediary GenerallyU.
(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.
-4-
(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. UChoice of Law; Submission to
Jurisdiction; Waiver of Jury TrialU. 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.
-5-
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 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
4.02. UConflict with other
AgreementsU. 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. UAmendmentsU. 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. USuccessorsU. 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. UNoticesU. 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, by
facsimile or by electronic mail (if an address therefore has been provided by
the respective party in writing) to, in the case of (i) the Seller, at 00000
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (facsimile no. (000) 000-0000),
Attention: President; (ii) the Initial Secured Party c/o Deutsche Bank Trust
Company Delaware, 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Trust & Securities Services – Honda 2010-2, with a copy to
Deutsche Bank Trust Company Americas at c/o Deutsche Bank National Trust
Company, 000 Xxxxx Xxx, 0xx Xxxxx - XX XXX00-0000, Xxxxxx Xxxx, XX 00000-0000,
Attention: Structured Finance Services - ABS and a copy to American Honda
Finance Corporation, as Administrator, at 00000 Xxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000 (facsimile no. (000) 000-0000), (iii) the Assignee-Secured
Party, at The Bank of New York Mellon, 000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Securities Unit - Honda Auto
Receivables 2010-2 and (iv) the Securities Intermediary, at The Bank of New York
Mellon, 000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Asset Backed Securities Unit - Honda Auto Receivables 2010-2, 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.
-6-
Section
4.06. UTerminationU. 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. UCounterpartsU. 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. ULimitation of Liability of
Owner TrusteeU. Notwithstanding
anything contained herein to the contrary, this Agreement has been countersigned
by Deutsche Bank Trust Company Delaware, not in its individual capacity but
solely in its capacity as Owner Trustee of the Issuer and in no event shall
Deutsche Bank Trust Company Delaware, 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, 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. URights of the Indenture
TrusteeU. The
Indenture Trustee shall be afforded the same rights, protections, immunities and
indemnities set forth in the Indenture, as if specifically set forth herein.
-7-
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:
|
/s/ X. Xxxxxx
|
|
|
Name:
X. Xxxxxx
|
|
|
Title:
President
|
|
|
By:
|
DEUTSCHE
BANK TRUST COMPANY DELAWARE,
|
|
|
not
in its individual capacity but solely in its capacity as Owner Trustee of
Honda Auto Receivables 2010-2 Owner
Trust,
|
|
|
By:
|
/s/ Xxxx
XxXxxxxxx
|
|
|
Name:
Xxxx XxXxxxxxx
|
|
|
Title:
Attorney-in-fact
|
|
|
By:
|
U/s/ Xxxxxxx XX
Xxxx
|
|
|
Name:
Xxxxxxx HY Voon
|
|
|
Title:
Attorney-in-fact
|
THE BANK
OF NEW YORK MELLON,
not in
its individual capacity but solely in its capacity as Indenture Trustee, as
Assignee-Secured Party and as Securities Intermediary
|
|
By:
|
/s/ Xxxxxxx Xxxxx
|
|
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
Vice President
|
AMERICAN
HONDA FINANCE CORPORATION,
as
Servicer
|
|
By:
|
/s/ X. Xxxxxx
|
|
|
Name:
X. Xxxxxx
|
|
|
Title:
President
|
-8-
