EX-10.1 DEPOSIT ACCOUNT CONTROL AGREEMENTAccount Control Agreement |
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HSBC AUTOMOTIVE TRUST (USA) 2006-3 | The Bank of New York Trust Company, N.A | HSBC Bank USA, National Association. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Search Account Control Agreement by:
Exhibit 10.1
Execution Copy
DEPOSIT ACCOUNT CONTROL AGREEMENT
This Deposit Account Control Agreement (this “Agreement”) dated as of November 1, 2006, is made by and among HSBC Automotive Trust (USA) 2006-3, as issuer (the “Issuer”), The Bank of New York Trust Company, N.A., not in its individual capacity but solely as indenture trustee (the “Indenture Trustee”) under the Indenture referred to below, and HSBC Bank USA, National Association, as administrator and as bank (“HSBC” and, in its capacity as Administrator, the “Administrator”, and in its capacity as bank, the “Bank”). Capitalized terms used but not defined herein shall have the meaning assigned (including by reference therein) in the Indenture dated as of November 1, 2006 (the “Indenture”) among the Issuer, HSBC, as administrator, and the Indenture Trustee. All references herein to the “UCC” shall mean the Uniform Commercial Code as in effect in the State of New York.
Section
1.
Establishment of Deposit Accounts. The Bank hereby confirms and agrees that:
(a)
The Bank has established account numbers 10-879781 (the “Collection
Account”) and 10-879782 (the “Reserve Account”) in the name
“HSBC Bank USA, National Association, as Administrator on behalf of The
Bank of New York Trust Company, N.A., as Indenture Trustee, in trust for the
registered holders of HSBC Automotive Trust (USA) 2006-3 Notes” (such
accounts and any successor accounts thereof, the “Deposit
Accounts”) designated as the “Collection Account” and the
“Reserve Account”, respectively, pursuant to the Indenture.
Except as provided in Section 12 hereof, the Bank shall not change the name,
account number or designation of the Deposit Accounts without the prior written
consent of the Indenture Trustee and without prior written notice to the
Servicer, which notice shall state the proposed effective date of any such
change;
(b)
The Bank is an organization engaged in the business of banking and is acting in
such capacity in maintaining the Deposit Accounts and acting as Bank hereunder;
(c)
Each Deposit Account has been established and will be maintained as a
“deposit account”(as defined in Section 9-102(29) of the UCC) and
is not evidenced by an “instrument” (as defined in Section
9-102(47) of the UCC);
(d)
The Indenture Trustee is the Bank’s sole “customer” (within
the meaning of Section 9-104 of the UCC) with respect to the Deposit Accounts;
(e)
All cash and money delivered to the Bank pursuant to the Indenture will be
promptly credited to the Deposit Accounts in accordance with the terms of the
Basic Documents; and
(f)
The Bank’s “jurisdiction” (within the meaning of Section
9-304 of the UCC) is the State of New York.
Section
2.
Indenture Trustee’s Directions. Notwithstanding anything to the contrary and for the
avoidance of doubt, if at any time the Bank shall receive any instructions
originated by the Indenture Trustee directing the disposition of funds in the
Deposit Accounts, the Bank shall comply with such instructions without further
consent by the Issuer or any other Person. The parties hereto acknowledge
that the Administrator may give instructions to the
Bank directing the
disposition of funds in the Deposit Accounts pursuant to the Indenture.
In the event of a conflict between the instructions originated by the Indenture
Trustee and the instructions originated by the Administrator directing the
disposition of funds in the Deposit Accounts, the instructions of the Indenture
Trustee shall prevail.
Section
3.
Subordination of Liens; Waiver of Set-Off. In the event that the Bank has or
subsequently obtains by agreement, by operation of law or otherwise, a security
interest or other rights in the Deposit Accounts or any monies credited
thereto, the Bank hereby agrees that such security interest shall be
subordinate to the security interest of the Indenture Trustee. The monies
deposited in the Deposit Accounts will not be subject to deduction, set-off,
banker’s lien, or any other right in favor of any Person other than the
Indenture Trustee (except that the Bank may set off (i) all amounts due to the
Bank in respect of customary fees and expenses for the routine maintenance and
operation of the Deposit Accounts and (ii) the face amount of any checks which
have been credited to the Deposit Accounts but are subsequently returned unpaid
because of uncollected or insufficient funds).
Section
4.
Governing Law.
Both this Agreement and the Deposit Accounts shall be governed by the laws of
the State of New York applicable to agreements made and to be performed
therein. Regardless of any provision in any other agreement, for purposes
of the UCC, the State of New York shall be deemed to be the Bank’s
jurisdiction (in accordance with Section 9-304(b) of the UCC), and the Deposit
Accounts shall be governed by the laws of the State of New York.
Section
5.
Conflict with Other Agreements; Amendments.
(a)
In the event of any conflict between this Agreement (or any portion thereof)
and any other agreement now existing or hereafter entered into regarding the
Deposit Accounts, the terms of this Agreement shall prevail.
(b)
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. This Agreement may not be amended without
satisfaction of the Rating Agency Condition.
(c)
The Bank, strictly in such capacity, hereby confirms and agrees that it has not
entered into, and until the termination of this Agreement will not enter into,
any agreement with the Issuer, the Indenture Trustee or any other Person
purporting to limit or condition the obligation of the Bank to comply with the
Indenture Trustee’s directions or instructions with respect to the
Deposit Accounts.
Section
6.
Adverse Claims.
Except for the claims and interest of the Indenture Trustee and the Issuer in
the Deposit Accounts, the Bank does not know or have notice of any claim to, or
interest in, the Deposit Accounts. If the Bank obtains actual knowledge
of any Person asserting any lien, encumbrance or adverse claim (including any
writ, garnishment, judgment, warrant of attachment, execution or similar
process) against the Deposit Accounts, the Bank will promptly notify the
Indenture Trustee and the Issuer thereof.
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Section
7.
Maintenance of Deposit Accounts. The Bank will promptly send copies of all
statements, confirmations and other correspondence concerning the Deposit
Accounts simultaneously to the Indenture Trustee, the Servicer and the Issuer
at the addresses set forth in Section 11 of this Agreement.
Section 8.
Representations, Warranties and
Covenants of the Bank.
The Bank hereby makes the following representations, warranties and covenants:
(a)
the Deposit Accounts have been established as set forth in Section 1 above, and
the Deposit Accounts will be maintained in the manner set forth herein until
termination of this Agreement; and
(b)
this Agreement is the valid and legally binding obligation of the Bank.
Section
9.
Exculpatory Provisions; Indemnification of Bank. The Issuer and the
Indenture Trustee hereby agree that the Bank is released from any and all
liabilities to the Issuer and the Indenture Trustee arising from the terms of
this Agreement and the compliance of the Bank with the terms hereof, except to
the extent that such liabilities arise from the Bank’s willful
misconduct, negligence or bad faith. The Issuer and its successors and
assigns shall at all times indemnify and save harmless the Bank from and
against any and all claims, actions and suits of others arising out of the
terms of this Agreement or the compliance of the Bank with the terms hereof,
and from and against any and all liabilities, losses, damages, costs, charges,
counsel fees and other expenses of every nature and character arising by reason
of the same, except to the extent that such arises from the Bank’s
willful misconduct, negligence or bad faith. This Section 9 shall survive
the termination of this Agreement.
Section
10. Successors;
Assignment.
The terms of this Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective corporate successors who
obtain such rights solely by operation of law. In the case of an
assignment of this Agreement, notice shall be provided to the Rating Agencies.
Section
11. Notices. Any notice, request or
other communication required or permitted to be given under this Agreement
shall be in writing and deemed to have been properly given when delivered in
person, or when sent by telecopy or other electronic means and electronic
confirmation of error free receipt is received or two days after being sent by
certified or registered United States mail, return receipt requested, postage
prepaid, addressed to the party at the address set forth below.
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Issuer: |
HSBC
Automotive Trust (USA) 2006-3 |






