EXHIBIT 1.1
$1,228,722,000
HONDA AUTO RECEIVABLES 2006-2 OWNER TRUST
$262,000,000 5.42500% ASSET BACKED NOTES, CLASS A-1
$292,000,000 5.42% ASSET BACKED NOTES, CLASS A-2
$412,000,000 5.30% ASSET BACKED NOTES, CLASS A-3
$262,722,000 5.28% ASSET BACKED NOTES, CLASS A-4
AMERICAN HONDA RECEIVABLES CORP.
UNDERWRITING AGREEMENT
August 15, 2006
Credit Suisse Securities (USA) LLC
As Representative of the Several Underwriters
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
1. Introductory. American Honda Receivables Corp., a California
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to cause the Honda Auto Receivables 2006-2 Owner Trust (the
"Trust") to issue and sell $262,000,000 aggregate principal amount of 5.42500%
Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), $292,000,000 aggregate
principal amount of 5.42% Asset Backed Notes, Class A-2 (the "Class A-2 Notes")
$412,000,000 aggregate principal amount of 5.30% Asset Backed Notes, Class A-3
(the "Class A-3 Notes") and $262,722,000 aggregate principal amount of 5.28%
Asset Backed Notes, Class A-4 (the "Class A-4 Notes" and together with the Class
A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the "Notes"). The Notes
will be issued pursuant to the Indenture, to be dated as of August 1, 2006 (the
"Indenture"), between the Trust and Deutsche Bank Trust Company Americas (the
"Indenture Trustee").
Concurrently with the issuance and sale of the Notes as contemplated
herein, the Trust will issue $41,274,911.31 aggregate principal amount of
certificates of beneficial interest (the "Certificates"), each representing an
interest in the Owner Trust Estate. The Company will retain the Certificates.
The Certificates will be issued pursuant to the Amended and Restated Trust
Agreement, to be dated August 1, 2006 (the "Trust Agreement"), between the
Company and U.S. Bank Trust National Association, as owner trustee (in such
capacity, the "Owner Trustee"). The Certificates are subordinated to the Notes.
The assets of the Trust will include, among other things, a pool of
retail installment sale and conditional sale contracts secured by new and used
Honda and Acura motor vehicles (the "Receivables"), with respect to Actuarial
Receivables, certain monies due thereunder on or after July 31, 2006 (the
"Cutoff Date"), and with respect to Simple Interest Receivables, certain monies
due or received thereunder on or after the Cutoff Date, such
Receivables to be sold to the Trust by the Company and to be serviced for the
Trust by American Honda Finance Corporation ("AHFC" or, in its capacity as
servicer, the "Servicer"). Capitalized terms used but not defined herein have
the meanings ascribed thereto in the Sale and Servicing Agreement, to be dated
as of August 1, 2006 (the "Sale and Servicing Agreement"), by and among the
Trust, the Company and the Servicer or, if not defined therein, in the
Indenture, the Trust Agreement or the Receivables Purchase Agreement, to be
dated as of August 1, 2006 between AHFC and the Company (the "Receivables
Purchase Agreement"), as the case may be. As used herein, "Basic Documents"
shall have the meaning specified in the Sale and Servicing Agreement.
At or prior to the time when sales to investors of the Notes were
first made to investors by the several Underwriters named in Schedule A hereto
(collectively, the "Underwriters") for which Credit Suisse Securities (USA) LLC
is acting as representative (in such capacity, the "Representative"), which was
approximately 11:00 a.m. on August 15, 2006 (the "Time of Sale"), the Company
had prepared the following information (collectively, the "Time of Sale
Information"): the preliminary prospectus supplement dated August 10, 2006
relating to the Notes and containing all information to be included in the Final
Prospectus (as defined below) other than pricing related information and
accompanied by the base prospectus dated August 10, 2006 (together, along with
information referred to under the caption "Static Pools" therein regardless of
whether it is deemed a part of the Registration Statement or Final Prospectus,
the "Preliminary Prospectus"). If, subsequent to the Time of Sale and prior to
the Closing Date (as defined below), the Company wishes to convey additional or
changed information in order to make the Time of Sale Information, in the light
of the circumstances under which statements in the Time of Sale Information were
made, not misleading, and as a result investors in the Notes elect to terminate
their old "Contracts of Sale" (within the meaning of Rule 159 under the
Securities Act of 1933, as amended (the "Act")) for any Notes and enter into new
Contracts of Sale with the Underwriters, then "Time of Sale Information" will
refer to the information conveyed to investors at the time of entry into the
first such new Contract of Sale, in an amended Preliminary Prospectus approved
by the Company and the Representative that corrects such material misstatements
or omissions (a "Corrected Prospectus") and "Time of Sale" will refer to the
time and date on which such new Contracts of Sale were entered into.
The Company hereby agrees with the several Underwriters as follows:
2. Representations and Warranties of the Company and AHFC. The
Company and AHFC, jointly and severally, represent and warrant to, and agree
with, the several Underwriters that:
(a) A registration statement on Form S-3 (No. 333-132320),
including a prospectus, relating to the Notes has been filed with the
Securities and Exchange Commission (the "Commission") and has become
effective and is still effective as of the date hereof. A Preliminary
Prospectus was filed with the Commission pursuant to Rule 424(b) of the
Act and the rules and regulations thereunder (the "Rules and
Regulations"). A final prospectus supplement dated the date hereof,
containing the same information as the Preliminary Prospectus, but
including the pricing related information and
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accompanied by the base prospectus dated March 21, 2006 (together, along
with information referred to under the caption "Static Pools" therein
regardless of whether it is deemed a part of the Registration Statement or
Final Prospectus, the "Final Prospectus", and together with the
Preliminary Prospectus and any Corrected Prospectus, the "Prospectus")
will be filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations ("Rule 424(b)") within the time period required thereby. Such
registration statement, as amended as of its effective date (including
without limitation each deemed effective date with respect to the Company
and the Underwriters pursuant to Rule 430B(f)(2) of the Rules and
Regulations) is hereinafter referred to as the "Registration Statement."
No "issuer free writing prospectus" as defined in Rule 433 of the Rules
and Regulations relating to the Notes has been or will be used by or on
behalf of the Company.
(b) On the effective date of the Registration Statement
(including without limitation each deemed effective date with respect to
the Company and the Underwriters pursuant to Rule 430B(f)(2) of the Rules
and Regulations) relating to the Notes, such Registration Statement
conformed and on the Closing Date will conform in all respects to the
requirements of the Act and the Rules and Regulations and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and as of each such date, such Registration Statement
conforms in all respects to the requirements contained in the Act and the
Rules and Regulations. As of the date of the first use of the Preliminary
Prospectus, as of the earlier of the date of the first use of the Final
Prospectus and the Time of Sale of the Notes, and as of the Closing Date,
each Prospectus will conform in all respects to the requirements of the
Act and the Rules and Regulations, and none of such documents includes or
will include any untrue statement of a material fact or omits or will omit
to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The two preceding sentences do not apply to statements in or
omissions from the Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through
the Representative specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
7(b).
(c) The Time of Sale Information, at the Time of Sale, did
not, and at the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions
made in reliance upon and in conformity with the Underwriter Information
(as defined herein).
(d) The Notes are "asset backed securities" within the meaning
of, and satisfy the requirements for use of, Form S-3 under the Act.
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(e) The documents incorporated by reference in the
Registration Statement and Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material
respects to the requirements of the Act or the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as applicable, and the rules and
regulations thereunder; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents are filed
with the Commission, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the Rules
and Regulations.
(f) The Company is not, and on the date on which the first
bona fide offer of the Notes is made, will not be an "ineligible issuer"
as defined in Rule 405. The Company has caused to be filed with the
Commission on August 11, 2006 the Preliminary Prospectus.
(g) Each of the Company and AHFC has been duly incorporated
and is an existing corporation in good standing under the laws of the
State of California, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus;
and each of the Company and AHFC is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification.
(h) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company, AHFC or the Trust for the consummation of
the transactions contemplated by this Agreement and the Basic Documents in
connection with the issuance of the Notes and the Certificates and the
sale by the Company of the Notes, except such as have been obtained and
made under the Act, such as may be required under state securities laws
and the filing of any financing statements required to perfect the
Company's, the Trust's and the Indenture Trustee's interest in the
Receivables, which financing statements will be filed in the appropriate
offices prior to the Closing Date (as such term is defined in Section 3).
(i) Neither the Company nor AHFC is in violation of its
Articles of Incorporation or By-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any agreement or instrument to which it is a party or by which it or
its properties are bound that could have a material adverse effect on the
transactions contemplated herein or in the Basic Documents. The execution,
delivery and performance of this Agreement and the Basic Documents by the
Company and AHFC, and the issuance of the Notes and the Certificates and
the sale by the Company of the Notes and the compliance by the Company and
AHFC with the terms and provisions hereof and thereof will not, subject to
obtaining any consents or approvals as may be required under the
securities or "blue sky" laws of various jurisdictions, result in a breach
or violation of any of the terms and provisions of, or constitute a
default under, any statute, rule, regulation or order of any governmental
agency or body or any
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court, domestic or foreign, having jurisdiction over the Company or AHFC
or any of their respective properties, or any agreement or instrument to
which the Company or AHFC is a party or by which the Company or AHFC is
bound or to which any of the properties of the Company or AHFC is subject,
or the Articles of Incorporation or By-laws of the Company and AHFC, and
the Company has full power and authority to authorize the issuance of the
Notes and the Certificates and to sell the Notes as contemplated by this
Agreement, the Indenture and the Trust Agreement, and each of the Company
and AHFC has full power and authority to enter into this Agreement and the
Basic Documents and to consummate the transactions contemplated hereby and
thereby.
(j) On the Closing Date, the Company will have directed the
Owner Trustee to authenticate and execute the Certificates and, when
delivered and paid for pursuant to the Trust Agreement, the Certificates
will have been duly issued and delivered and will constitute valid and
legally binding obligations of the Trust, entitled to the benefits
provided in the Trust Agreement and enforceable in accordance with their
terms.
(k) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company or
AHFC or any of their respective properties that, if determined adversely
to the Company or AHFC, would individually or in the aggregate have a
material adverse effect on the condition (financial or other), business or
results of operations of the Company or AHFC, respectively, or would
materially and adversely affect the ability of the Company or AHFC to
perform its obligations under this Agreement or the other Basic Documents
to which it is a party, or which are otherwise material in the context of
the issuance and sale of the Notes or the issuance of the Certificates;
and no such actions, suits or proceedings are threatened or, to the
Company's or AHFC's knowledge, contemplated.
(l) As of the Closing Date, the representations and warranties
of the Company and AHFC contained in the Basic Documents will be true and
correct.
(m) This Agreement has been duly authorized, executed and
delivered by each of the Company and AHFC.
(n) The Company has authorized the conveyance of the
Receivables to the Trust, and, as of the Closing Date, the Company has
directed the Trust to execute and issue the Notes and the Certificates and
to sell the Notes.
(o) The Company's assignment and delivery of the Receivables
to the Trust as of the Closing Date will vest in the Trust all of the
Company's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
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(p) The Trust's assignment of the Receivables to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture Trustee, for
the benefit of the Noteholders, a first priority perfected security
interest therein, subject to no prior lien, mortgage, security interest,
pledge, adverse claim, charge or other encumbrance.
(q) The computer tape of the Receivables created as of July
31, 2006, and made available to the Representative by the Servicer was
complete and accurate as of the date thereof and includes an identifying
description of the Receivables that are listed on Schedule A to the Sale
and Servicing Agreement.
(r) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of this Agreement,
the Basic Documents, the Notes and the Certificates and any other
agreements contemplated herein or therein shall have been paid or will be
paid by the Company at or prior to the Closing Date to the extent then
due.
(s) The consummation of the transactions contemplated by this
Agreement and the Basic Documents, and the fulfillment of the terms hereof
and thereof, will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any of the property or
assets of the Company or AHFC pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement or similar agreement or instrument under which the Company or
AHFC is a debtor or guarantor.
(t) The Company is not and, after giving effect to the
issuance of the Certificates and the offering and sale of the Notes and
the application of the proceeds thereof as described in the Prospectus,
will not be required to be registered as an "investment company" as
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(u) In connection with the offering of the Notes in the State
of Florida, the Company and AHFC hereby certify that they have complied
with all provisions of Section 517.075 of the Florida Securities and
Investor Protection Act.
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of, in the case of (i) the Class A-1
Notes, 99.87500% of the principal amount thereof; (ii) the Class A-2 Notes,
99.82463% of the principal amount thereof; (iii) the Class A-3 Notes, 99.77653%
of the principal amount thereof; and (iv) the Class A-4 Notes, 99.72727% of the
principal amount thereof, the respective principal amounts of each Class of the
Notes set forth opposite the names of the Underwriters in Schedule A hereto.
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The Company will deliver against payment of the purchase price, the
Notes of each Class in the form of one or more permanent global securities in
definitive form (the "Global Notes") deposited with the Indenture Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Notes will be
held only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Notes shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account in New York previously designated to the Representative
by the Company at a bank acceptable to the Representative at the offices of
XxXxx Xxxxxx LLP, New York, New York at 10:00 A.M., New York City time, on
August 22, 2006 or at such other time not later than seven full business days
thereafter as the Representative and the Company determine, such time being
herein referred to as the "Closing Date", against delivery to the Indenture
Trustee as custodian for DTC of the Global Notes representing all of the Notes.
The Global Notes will be made available for checking at the above office of
XxXxx Xxxxxx LLP at least 24 hours prior to the Closing Date.
The Company will deliver the Certificates to the above office of
XxXxx Xxxxxx LLP on the Closing Date. The certificate for the Certificates so to
be delivered will be in definitive form, in authorized denominations and
registered in the name of the Company and will be made available for checking at
the above office of XxXxx Xxxxxx LLP at least 24 hours prior to the Closing
Date.
Pursuant to Rule 15c6-1(d) under the Exchange Act, the parties
hereto have agreed that the Closing Date will be not later than August 22, 2006,
unless otherwise agreed to as described above.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes for sale to the public as set forth in
the Prospectus, and each Underwriter represents, warrants and covenants,
severally and not jointly, to the Company and AHFC that: (i) it has not offered
or sold and, prior to the expiry of the period of six months from the Closing
Date, will not offer or sell any Notes to persons in the United Kingdom except
to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or who it is reasonable to expect will acquire, hold, manage or
dispose of investments (as principal or agent) for the purposes of their
businesses, or otherwise in circumstances that have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995, as amended, (ii) it has complied
and will comply with all applicable provisions of the Financial Services and
Markets Act 2000 with respect to anything done by it in relation to the Notes
in, from or otherwise involving the United Kingdom, (iii) it is a person of a
kind described in Articles 19 or 49 of the Financial Services and Markets Act
2000 (Financial Promotion) Order 2001, as amended (the "Financial Promotion
Order") and (iv) it has only communicated or caused to be communicated, and will
only communicate or cause to be communicated, in the United Kingdom any document
received by it in connection with the issue of the Notes to a person who is of a
kind described in Articles 19 or 49 of the Financial Promotion Order or who is a
person to whom such document may otherwise lawfully be communicated.
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5A. Certain Agreements of the Company. The Company agrees with the
several Underwriters:
(a) The Company will file the Final Prospectus, properly
completed, with the Commission pursuant to and in accordance with
subparagraph (2) (or, if applicable and if consented to by the
Representative, subparagraph (5)) of Rule 424(b) no later than the second
business day following the date it is first used. The Company will advise
the Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Company shall file the final pricing information,
which may be posted on a Bloomberg screen or distributed via Bloomberg, as
a free writing prospectus.
(c) The Company will advise the Representative promptly, in
writing, of any proposal to amend or supplement the Registration Statement
or the Prospectus and will not effect such amendment or supplementation
without the Representative's reasonable consent; and the Company will also
advise the Representative promptly of any amendment or supplementation of
the Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(d) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Company will
promptly notify the Representative of such event and will promptly prepare
and file with the Commission (subject to the Representative's prior review
pursuant to Section 5(b)), at its own expense, an amendment or supplement
which will correct such statement or omission, or an amendment which will
effect such compliance. Neither the Representative's consent to, nor the
Underwriters delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(e) The Company will cause the Trust to make generally
available to Noteholders, as soon as practicable, but no later than
sixteen months after the date hereof, an earnings statement of the Trust
covering a period of at least twelve consecutive months beginning after
the later of (i) the effective date of the registration statement relating
to the Notes and (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to the
date of this Agreement and, in each case, satisfying the provisions of
Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(f) The Company will furnish to the Underwriters copies of
each Prospectus, the Registration Statement and all amendments and
supplements to such
8
documents, in each case as soon as available and in such quantities as the
Representative reasonably requests. The Final Prospectus shall be
furnished on or prior to 3:00 P.M., New York time, on the business day
following the execution and delivery of this Agreement. All other such
documents shall be so furnished as soon as available. The Company will pay
the expenses of printing and distributing to the Underwriters all such
documents.
(g) The Company will arrange for the qualification of the
Notes for offering and sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representative may
reasonably designate and will continue such qualifications in effect so
long as required for the distribution of the Notes; provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation to do business or to file a general consent to service
of process in any such jurisdiction.
(h) For a period from the date of this Agreement until the
retirement of the Notes (i) the Company will furnish to the Representative
and, upon request, to each of the other Underwriters, copies of each
certificate and the annual statements of compliance delivered to the
Indenture Trustee pursuant to Section 3.09 of the Indenture and Sections
3.10 and 3.11 of the Sale and Servicing Agreement and the annual
independent certified public accountant's servicing reports furnished to
the Trust pursuant to Section 3.12 of the Sale and Servicing Agreement, by
first-class mail as soon as practicable after such statements and reports
are furnished to the Indenture Trustee or the Trust, as the case may be,
and (ii) such other forms of periodic certificates or reports as may be
delivered to the Indenture Trustee, the Owner Trustee or the Noteholders
under the Indenture, the Sale and Servicing Agreement or the other Basic
Documents.
(i) So long as any Note is outstanding, the Company will
furnish to the Representative by first-class mail as soon as practicable,
(i) all documents distributed, or caused to be distributed, by the Company
to the Noteholders, (ii) all documents filed or caused to be filed by the
Company with the Commission pursuant to the Exchange Act or any order of
the Commission thereunder and (iii) such other information in the
possession of the Company concerning the Trust as the Representative from
time to time may reasonably request.
(j) Subject to the provisions of Section 10 hereof, the
Company will pay all expenses incident to the performance of its
obligations under this Agreement and will reimburse the Underwriters (if
and to the extent incurred by them) for any filing fees and other expenses
(including fees and disbursements of counsel) incurred by them in
connection with qualification of the Notes for sale in jurisdictions that
the Representative may designate pursuant to Section 5(f) hereof and
determination of their eligibility for investment under the laws of such
jurisdictions as the Representative reasonably designates and the printing
of memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of the Notes, for any travel expenses of the
officers and employees of the Underwriters and any other expenses of the
Underwriters
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in connection with attending or hosting meetings with prospective
purchasers of the Notes and for expenses incurred in distributing the
Prospectus (including any amendments and supplements thereto).
(k) To the extent, if any, that the rating provided with
respect to the Notes by Xxxxx'x Investors Service, Inc. ("Moody's"), or
Fitch Ratings ("Fitch" and, together with Moody's, the "Rating Agencies")
is conditional upon the furnishing of documents or the taking of any other
action by the Company, the Company shall furnish such documents and take
any such other action.
(l) On or before the Closing Date, the Company and AHFC shall
annotate and indicate unambiguously in the computer records of the Company
and AHFC relating to the Receivables to show the Trust's absolute
ownership of the Receivables, and from and after the Closing Date neither
the Company nor AHFC shall take any action inconsistent with the Trust's
ownership of such Receivables, other than as permitted by the Sale and
Servicing Agreement.
5B. Certain Agreements of the Underwriters. Each of the several
Underwriters, for itself only, represents, warrants and agrees with the Company
as follows:
Other than the Preliminary Prospectus and the Final Prospectus, each
Underwriter has not conveyed and will not convey, without the Company's prior
written approval, to any potential investor in the Notes any other written
material of any kind relating to any "issuer information" as defined in Rule
433(h)(2) of the Act, or the Notes that would constitute a "prospectus" or a
"free writing prospectus," each as defined in the Act ("Prohibited Materials"),
including, but not limited to the materials constituting a "road show"
presentation to Potential Investors (other than use of such materials as part of
the road show itself) and any "ABS informational and computational materials"
within the meaning of Item 1101(a) of Regulation AB promulgated by the
Commission under the Act and the Securities Exchange Act of 1934, as amended;
provided, however, that you may convey to one or more of your Potential
Investors (i) information permitted in Rule 134 under the Act or previously
included in the Preliminary Prospectus and (ii) a free writing prospectus, as
defined in Rule 405 under the Act, containing only: (a) a column or other entry
showing the status of the subscriptions for each class of the Notes (both for
the issuance as a whole and for each underwriter's specific retention) and
confirmation information, (b) expected settlement date and expected and actual
pricing parameters of the Notes, (c) information relating to the class, size,
rating, price, CUSIP, coupon, yield, spread, benchmark, status of the Notes, the
expected final payment date, the trade date and payment window of one or more
classes of Notes, and the weighted average life of any class of Notes, (d)
expected maturities of any class of Notes, and (e) the eligibility of the Notes
to be purchased by XXXXX plans provided that, in the case of clauses (i) and
(ii), such information is posted on a Bloomberg screen or distributed via
Bloomberg and, in the case of clause (ii), other than the final pricing terms,
which will be posted on a Bloomberg screen or distributed via Bloomberg, such
free writing prospectus shall not contain information that would require the
issuer to file such free writing prospectus pursuant to Rule 433 under the Act.
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6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Notes on the
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and AHFC herein on the Closing Date, to
the accuracy of the statements of Company and AHFC officers made pursuant to the
provisions hereof, to the performance by the Company and AHFC of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) The Representative shall have received a letter, dated the
date hereof or the Closing Date, of KPMG LLP, in form and substance
satisfactory to the Representative and counsel for the Underwriters,
confirming that they are independent public accountants within the meaning
of the Act and the applicable Rules and Regulations and stating in effect
that (i) they have performed certain specified procedures as a result of
which they determined that certain information of an accounting, financial
or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Trust, AHFC and the Company) set forth in the Registration Statement and
each Prospectus (and any supplements thereto), agrees with the accounting
records of the Trust, AHFC and the Company, excluding any questions of
legal interpretation, and (ii) they have performed certain specified
procedures with respect to the Receivables.
(b) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representative, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in or affecting
particularly the business, properties, condition (financial or otherwise)
or results of operations of the Company or AHFC which, in the judgment of
a majority in interest of the Underwriters (including the Representative),
materially impairs the investment quality of any Class of the Notes or
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for any Class of the Notes;
(ii) any suspension or limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum prices for trading
on such exchange; (iii) any banking moratorium declared by Federal,
California or New York authorities; or (iv) any outbreak or escalation of
major hostilities in which the United States is involved, any declaration
of war by Congress or any substantial national or international calamity
or emergency if, in the judgment of a majority in interest of the
Underwriters (including the Representative), the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for any Class of the Notes.
(d) The Representative shall have received an opinion of Xxxx,
Forward, Xxxxxxxx & Scripps LLP, special California counsel to the Company
and AHFC, or of such other California counsel satisfactory to the
Representative, dated the Closing Date
11
and satisfactory in form and substance to the Representative and in form
and scope to counsel for the Underwriters, to the effect that:
(i) Each of AHFC and the Company has the corporate power
and corporate authority to execute and deliver the Receivables
Purchase Agreement, and to incur its obligations set forth therein.
(ii) Each of AHFC and the Company has the corporate power
and corporate authority to execute and deliver the Sale and
Servicing Agreement, and to incur its obligations set forth therein.
(iii) Each of AHFC and the Company has the corporate power
and corporate authority to carry on its business as described in the
Prospectus.
(iv) The execution and delivery by AHFC of each of the
Basic Documents to which AHFC is a party, and the incurring by AHFC
of the obligations of AHFC thereunder, have been duly authorized by
all necessary corporate action on the part of AHFC, and each of the
Basic Documents to which AHFC is a party has been duly executed and
delivered by AHFC. The execution and delivery by the Company of each
of the Basic Documents to which the Company is a party, and the
incurring by the Company of the obligations of the Company
thereunder, have been duly authorized by all necessary corporate
action on the part of the Company, and each of the Basic Documents
to which the Company is a party has been duly executed and delivered
by the Company.
(v) The direction by the Company to the Indenture Trustee
to authenticate the Notes, as set forth in a letter dated as of the
Closing Date, and the direction by the Company to the Owner Trustee
to execute and deliver to the Indenture Trustee for authentication
the Notes, as set forth in a letter dated as of the Closing Date,
have been duly authorized by all necessary corporate action on the
part of the Company.
(vi) The direction by the Company to the Owner Trustee to
authenticate and deliver the Certificates, as set forth in a letter
dated as of the Closing Date, has been duly authorized by all
necessary corporate action on the part of the Company.
(vii) The execution and delivery by AHFC of each of the
Basic Documents to which AHFC is a party, and the incurring by AHFC
of the obligations of AHFC thereunder, do not violate any federal or
California statute, rule or regulation applicable to AHFC. The
execution and delivery by the Company of each of the Basic Documents
to which the Company is a party, and the incurring by the Company of
the obligations of the Company thereunder, do not violate any
federal or California statute, rule or regulation applicable to the
Company.
12
(viii) Assuming that AHFC follows its standard operating
procedures for creating and perfecting security interests in
California Financed Vehicles, as described in an Officers'
Certificate executed by AHFC and attached hereto, and relying solely
on such Officers' Certificate with respect to such facts (and AHFC
has not informed us that it has not followed, or that it will not
continue to follow, its standard operating procedures in connection
with the creation and perfection of security interests in the
California Financed Vehicles), AHFC has acquired or will acquire a
perfected security interest in each California Financed Vehicle that
will be prior to any other security interest therein created under
Division 9 of the California Uniform Commercial Code.
(ix) No filing or other action is necessary to maintain the
perfection of the security interest in the California Financed
Vehicles created by the California Receivables and acquired by the
Seller, the Trust or the Indenture Trustee, as applicable. Such
counsel may note that unless and until the obligors under the
California Receivables receive effective notice of the transfer to
the Seller, the Trust or the Indenture Trustee (as the case may be)
and of the assignment of the rights to payment, such obligors are
entitled to make payments to and accept releases and discharges from
AHFC, and, for so long as AHFC is named as the legal owner and
lienholder on any certificate of title with respect to any
California Financed Vehicle, AHFC has the power to release the
security interest in such California Financed Vehicle or to make
another assignment of such security interest to an assignee that
becomes the lienholder named on the related certificate of title,
which power may be improperly exercised either through fraud or
inadvertence;
(x) No consent, approval, authorization or other action
by, or filing with, any federal or California governmental
authority, or any order or decree, or any modification of any order
or decree, from any California court, is required for the execution
and delivery by each of AHFC and the Company of each of the Basic
Documents to which it is a party or the incurring of its obligations
thereunder, or if required, the requisite consent, approval, or
authorization has been obtained, the requisite filing has been
accomplished, or the requisite action has been taken.
(xi) The statements in the Prospectus under the heading
"Certain Legal Aspects of the Receivables," to the extent that they
constitute matters of State of California law or State of California
legal conclusions, provide a fair and accurate summary in all
material respects of such law or conclusions; provided, however,
that we express no opinion with respect to statements in the next to
last paragraph under the subheading "Consumer Protection Laws," as
to which AHRC is receiving an opinion of counsel (from Xxxxxxxx,
Xxxxxx, Xxxxxxx & Xxxxxxx LLP), as described therein.
(e) The Representative shall have received an opinion of
Xxxxxx & Bird LLP, counsel to the Company and AHFC, dated the Closing Date
and satisfactory in form
13
and substance to the Representative and in form and scope to counsel for
the Underwriters, to the effect that:
(i) each of the Company and AHFC is validly existing and
in good standing under the laws of the State of California;
(ii) when the Notes have been validly executed,
authenticated and delivered in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant
to this Agreement, the Notes will constitute valid and binding
obligations of the Trust enforceable in accordance with their terms
and entitled to the benefits of the Indenture, except that
enforceability thereof may be subject to (a) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity regardless of whether
such enforceability is considered in a proceeding at law or in
equity;
(iii) the execution, delivery and performance by each of the
Company and AHFC of the Basic Documents to which it is a party will
not violate or result in a material breach of any of the terms of or
constitute a material default under or (except as contemplated in
the Basic Documents) result in the creation of any lien, charge or
encumbrance on any property or assets of the Company or AHFC,
pursuant to the terms of any indenture, mortgage, deed of trust or
other agreement described in an Officer's Certificate or
Certificates and schedules attached to such opinion (collectively,
the "Material Agreements"). As to those Material Agreements which by
their terms are or may be governed by the laws of a jurisdiction
other than New York, such counsel may assume that such Material
Agreements are governed by the laws of the State of New York for
purposes of such opinion. In addition, and in reliance upon a
certificate of AHFC's Chief Financial Officer or other accounting
officer as to compliance with financial covenants, such counsel may
exclude from the scope of such opinion any potential violation of
financial covenants contained in such Material Agreements.
(iv) no consent, approval, authorization or order of, or
filing with, any New York or federal governmental entity is required
for the execution and delivery by either of the Company or AHFC of
the Basic Documents to which it is a party or the performance by
either of the Company or AHFC of the transactions contemplated
thereby where the failure to make or obtain such consent or approval
of, notice to, filing with, or other action by, or take such action
would reasonably be expected to have a material adverse effect on
the ability of such entity to perform its obligations under the
Basic Documents, except for (i) the filing of UCC financing
statements, (ii) filings and other actions that may be required
pursuant to state securities or blue sky laws, and (iii) those that
have already been obtained, made or taken;
14
(v) the execution and delivery by each of the Company and
AHFC of the Basic Documents to which it is a party, the consummation
of the transactions contemplated thereby and compliance with any of
the provisions thereof by each of AHFC and the Company will not
violate (i) any of the terms, conditions or provisions of the
certificate of incorporation or bylaws of either of AHFC or the
Company, each as amended, (ii) any federal or State of New York
statute, rule or regulation applicable to AHFC or the Company (other
than federal and state securities or blue sky laws, as to which such
counsel need express no opinion with respect to this paragraph) or
(iii) any judgment, written injunction, decree, order or ruling of
any court or governmental authority binding on AHFC or the Company
of which such counsel has knowledge;
(vi) such counsel has no reason to believe that the
Registration Statement or any amendment thereto, as of the date of
the Final Prospectus or as of such Closing Date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Preliminary
Prospectus as of its date and as of the date hereof, or the Final
Prospectus as of the date hereof or as of the Closing Date, contains
or contained any untrue statement of a material fact or omits or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; it being understood that such
counsel need make no statement or express any opinion as to the
financial statements or other financial, numerical, statistical and
quantitative information contained in the Registration Statement or
a Prospectus, and that for purposes of determining the date of the
Preliminary or Final Prospectus, it shall be the date stated on the
respective prospectus supplements thereto;
(vii) the Registration Statement and each Prospectus
complies in all material respects with the requirements of the Act
and the rules and regulations promulgated thereunder; and such
counsel does not know of any contracts or documents of a character
required to be described in the Registration Statement or each
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required; it being understood
that such counsel need express no opinion as to the financial
statements or other financial, numerical, statistical and
quantitative information contained in the Registration Statement or
a Prospectus;
(viii) the statements in each Prospectus under the heading
"Certain Legal Aspects of the Receivables," "Summary - ERISA
Considerations" and "ERISA Considerations," to the extent that they
constitute matters of federal or State of New York law, or federal
or State of New York legal conclusions provide a fair and accurate
summary of such law or conclusions; and
15
(ix) assuming that the Receivables are in substantially one
of the forms attached to such opinion, the Receivables constitute
tangible "chattel paper" within the meaning of the California UCC.
(f) The Representative shall have received an opinion of
Xxxxxx & Bird LLP, counsel to the Company and AHFC, dated the Closing Date
and satisfactory in form and substance to the Representative and in form
and scope to counsel for the Underwriters, to the effect that:
(i) the Receivables Purchase Agreement creates a valid
security interest in favor of the Company in AHFC's right, title and
interest in and to the Receivables transferred to the Company
pursuant to the Receivables Purchase Agreement;
(ii) the Sale and Servicing Agreement creates a valid
security interest in favor of the Trust in the Company's right,
title and interest in and to the Receivables transferred to the
Trust pursuant to the Sale and Servicing Agreement;
(iii) the Indenture creates a valid security interest in
favor of the Indenture Trustee in the Trust's right, title and
interest in and to the Receivables pledged to the Indenture Trustee
pursuant to the Indenture;
(iv) the filing of the financing statements of Form UCC-1
naming (a) AHFC as debtor in favor of the Company, (b) the Company
as debtor in favor of the Trust, and (c) the Trust as debtor in
favor of the Indenture Trustee, in the respective offices, will be
effective to perfect the security interests described in paragraphs
(i), (ii) and (iii) above, and each such security interest will be
prior to any security interest in the Receivables of any other
creditor of AHFC, the Company or the Trust, respectively;
(v) the Trust Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act");
(vi) the Indenture has been duly qualified under the Trust
Indenture Act;
(vii) the Registration Statement is effective under the Act
and, to the best of such counsel's knowledge and information, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings therefor
have been initiated or threatened by the Commission;
(viii) each Basic Document (other than the Trust Agreement)
to which it is a party is, when executed and delivered, a valid and
binding obligation of each
16
of the Company and AHFC, enforceable against each such party in
accordance with its terms, except as enforceability thereof may be
limited by (x) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, (y) general principles of equity
regardless of whether such enforceability is considered in a
proceeding at law or in equity, and (z) in the case of this
Agreement and with respect to rights of indemnity thereunder,
limitations of public policy under applicable securities laws;
(ix) assuming due authorization, execution and delivery by
the Indenture Trustee and the Owner Trustee, not in its individual
capacity but solely as Owner Trustee on behalf of the Trust, the
Indenture constitutes the legal, valid and binding agreement of the
Trust, enforceable against the Trust in accordance with its terms
(subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting
creditors' rights generally from time to time in effect, and
subject, as to enforceability, to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law) except, as applicable, that such
counsel need not express an opinion with respect to indemnification
or contribution provisions which may be deemed to be in violation of
the public policy underlying any law or regulation; and
(x) neither the Trust nor the Company is an "investment
company" or under the "control" of an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act") and neither the Trust nor the Seller
is required to register under the Investment Company Act.
(g) The Representative shall have received an opinion of XxXxx
Xxxxxx LLP, tax counsel for the Company, dated the Closing Date and
satisfactory in form and scope to the Representative and counsel for the
Underwriters, to the effect that for federal income tax purposes (i) the
Notes will be characterized as indebtedness, (ii) the Trust will not be
classified as an association (or publicly traded partnership) taxable as a
corporation and (iii) the statements set forth in the Prospectus
Supplement under the headings "Summary of Terms--Tax Status", "Material
Income Tax Consequences" and Annex A to the Prospectus, "Global Clearance,
Settlement and Tax Documentation Procedures--Certain U.S. Federal Income
Tax Documentation Requirements" and in the Base Prospectus under the
headings "Summary of Terms--Tax Status" and "Material Income Tax
Consequences," to the extent they constitute matters of law or legal
conclusions, accurately described the material United States federal
income tax consequences to Noteholders.
(h) The Representative shall have received an opinion of XxXxx
Xxxxxx LLP, tax counsel for the Company, dated the Closing Date and
satisfactory in form and scope to the Representative and counsel for the
Underwriters, to the effect that for
17
California state franchise and California state income tax purposes the
Trust will not be classified as an association (or publicly traded
partnership) taxable as a corporation.
(i) The Representative shall have received from XxXxx Xxxxxx
LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the validity of the Notes, the Registration
Statement, the Prospectus and other related matters as the Representative
may require, and the Company shall have furnished to such counsel such
documents as it may request for the purpose of enabling it to pass upon
such matters.
(j) The Representative shall have received a certificate,
dated the Closing Date, of the Chairman of the Board, the President or any
Vice-President and a principal financial or accounting officer of each of
the Company and AHFC in which such officers, to the best of their
knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company and AHFC in this Agreement
are true and correct in all material respects; the Company or AHFC, as
applicable, has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the
Closing Date in all material respects; the representations and warranties
of the Company or AHFC, as applicable, in the Basic Documents are true and
correct as of the dates specified in such agreements in all material
respects; the Company or AHFC, as applicable, has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date; no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; and, subsequent to the date of the Final
Prospectus, there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the condition
(financial or otherwise), business, properties or results of operations of
the Company or AHFC or their respective businesses except as set forth in
or contemplated by the Prospectus or as described in such certificate.
(k) The Representative shall have received an opinion of
Xxxxxx & Xxxxxx LLP, counsel to the Indenture Trustee, dated the Closing
Date and satisfactory in form and substance to the Representative and in
form and scope to counsel for the Underwriters, substantially to the
effect that:
(i) the Indenture Trustee is a banking corporation validly
existing under the laws of the State of New York;
(ii) each of the Indenture Trustee and the Securities
Intermediary has full power and authority to execute, deliver and
perform its respective obligations under each of the Basic Documents
to which it is a party and has taken all necessary action to
authorize the execution, delivery and performance by it of each of
the Basic Documents to which it is a party;
18
(iii) no approval, authorization or other action by or
filing with any governmental authority of the United States of
America, or of the State of New York, having jurisdiction over the
banking or trust powers of the Indenture Trustee is required in
connection with the execution and delivery by the Indenture Trustee
of the Basic Documents;
(iv) the execution and delivery of the Basic Documents and
the performance by the Indenture Trustee of the respective terms of
the Basic Documents to which it is a party, do not conflict with or
result in a violation of the Articles of Incorporation or By-laws of
the Indenture Trustee or the federal laws of the United States of
America or laws of the State of New York applicable to the banking
or trust powers of the Indenture Trustee;
(v) each of the Basic Documents to which the Indenture
Trust is a party has been duly executed and delivered by the
Indenture Trustee or the Securities Intermediary, as the case may
be, and constitutes a legal, valid and binding obligation of the
Indenture Trustee or the Securities Intermediary, as the case may
be, enforceable against the Indenture Trustee or the Securities
Intermediary, as the case may be, in accordance with its respective
terms, except that, certain of such obligations may be enforceable
solely against the Collateral and except that such enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation, or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at
law); and
(vi) the Notes delivered on the Closing Date have been duly
authenticated by the Indenture Trustee in accordance with the terms
of the Indenture.
(l) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Owner Trustee, dated the
Closing Date and satisfactory in form and substance to the Representative
and in form and scope to counsel for the Underwriters, to the effect that:
(i) the Owner Trustee is duly formed and validly existing
as a national banking association under the federal laws of the
United States of America;
(ii) the Owner Trustee has the power and authority to
execute, deliver and perform its obligations under the Trust
Agreement and to consummate the transactions contemplated thereby;
19
(iii) the Owner Trustee has duly authorized, executed and
delivered the Trust Agreement, and the Trust Agreement constitutes a
legal, valid and binding obligation of the Owner Trustee,
enforceable against the Owner Trustee in accordance with its terms;
(iv) neither the execution, delivery and performance by the
Owner Trustee of the Trust Agreement, nor the consummation of the
transactions contemplated thereby, is in violation of the articles
of association or bylaws of the Owner Trustee or of any law,
governmental rule or regulation of the State of Delaware or of the
United States of America governing the trust powers of the Owner
Trustee; and
(v) no consent, approval or other authorization of, or
registration, declaration or filing with, any court or governmental
agency or commission of the State of Delaware or of the United
States of America governing the trust powers of the Owner Trustee is
required by or with respect to the Owner Trustee for the valid
execution and delivery of the Trust Agreement, or for the validity
or enforceability thereof, other than the filing of the Certificate
of Trust with the Delaware Secretary of State, which has been duly
filed.
(m) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx, Xxxxxxx & Xxxxxxx LLP, special California counsel to the
Company and AHFC, or of such other California counsel satisfactory to the
Representative, dated the Closing Date and satisfactory in form and
substance to the Representative and in form and scope to counsel for the
Underwriters, to the effect that the blank forms of retail installment
sale and conditional sale contracts specified therein (the "Contracts")
comply, or complied when in use, with all applicable disclosure
requirements affecting the form and printed content of the Contracts under
the Federal Consumer Credit Protection Act, 15 U.S.C. SS. SS. 1601 et seq.
and Regulation Z issued pursuant thereto, as interpreted in the Official
Staff Commentary, and applicable California disclosure laws affecting the
form and printed content of the Contracts.
(n) [Reserved]:
(o) The Representative shall have received one or more
opinions of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special Delaware counsel to
the Trust, dated the Closing Date and satisfactory in form and scope to
the Representative and counsel for the Underwriters, to the effect that:
(i) the Trust has been duly formed and is validly existing
and in good standing as a statutory trust under the Delaware
Statutory Trust Statute, 12 Del. C. (section) 3801, et seq. (the
"Delaware Act");
20
(ii) the Trust has the power and authority under the
Delaware Act and the Trust Agreement to execute and deliver the
Basic Documents to which the Trust is a party, to issue the Notes
and the Certificates, to grant the Collateral (as such term is
defined in the Indenture) to the Indenture Trustee as security for
the Notes and to perform its obligations under each of said
documents;
(iii) the Trust has duly authorized and executed the
Certificates and the Notes, and when the Certificates have been duly
executed and authenticated by the Owner Trustee and delivered upon
the order of the Depositor in accordance with the Trust Agreement,
the Certificates will be validly issued and entitled to the benefits
of the Trust Agreement;
(iv) to the extent that Article 9 of the Uniform Commercial
Code as in effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflicts of laws principles), and
assuming that the security interest created by the Indenture in the
Collateral has been duly created and has attached, upon the filing
of the financing statements set forth in such opinion (the "Delaware
Financing Statements") with the Office of the Secretary of State
(Uniform Commercial Code Division) (the "Division"), the Indenture
Trustee will have a perfected security interest in the Trust's
rights in that portion of the Collateral described in the Delaware
Financing Statements that may be perfected by the filing of a UCC
financing statement with the Division (the "Filing Collateral") and
the proceeds thereof (as defined in Section 9-102(a)(64) of the
Delaware UCC);
(v) the search report referenced in such opinion will set
forth the proper filing office and the proper debtor necessary to
identify those persons who under the Delaware UCC have on file
financing statements against the Trust covering the Filing
Collateral as of the Closing Date. Such search report identifies no
secured party who has filed with the Division a financing statement
naming the Trust as debtor, and describing the Filing Collateral
prior to the Closing Date;
(vi) assuming for federal income tax purposes that the
Trust will not be classified as an association or a publicly traded
partnership taxable as a corporation, and that the Notes will be
characterized as indebtedness for federal income tax purposes, then
the Trust will not be subject to any franchise or income tax under
the laws of the State of Delaware, and the Notes will also be
characterized as indebtedness for Delaware tax purposes;
(vii) the Trust Agreement is the legal, valid and binding
obligation of the parties thereto, enforceable against such parties,
in accordance with its terms (subject to such exclusions and
exceptions as are customary in opinions of this type);
21
(viii) under the Delaware Act, the Trust is a separate legal
entity and, assuming that the Sale and Servicing Agreement conveys
good title to the Trust property to the Trust as a true sale and not
as a security arrangement, the Trust rather than the
Certificateholders will hold whatever title to the Trust property as
may be conveyed to it from time to time pursuant to the Sale and
Servicing Agreement, except to the extent that the Trust has taken
action to dispose of or otherwise transfer or encumber any part of
the Trust property;
(ix) under 3805(b) of the Delaware Act, no creditor of any
Certificateholder (as defined in the Trust Agreement) shall have any
right to obtain possession of, otherwise exercise legal or equitable
remedies with respect to, the property of the Trust except in
accordance with the terms of the Trust Agreement;
(x) under 3805(c) of the Delaware Act, except to the
extent otherwise provided in the Trust Agreement, a
Certificateholder (including the Company in its capacity as
Depositor under the Trust Agreement) has no interest in specific
Receivables; and
(xi) under 3808(a) and (b) of the Delaware Act, the Trust
may not be terminated or revoked by any Certificateholder, and the
dissolution, termination or bankruptcy of any Certificateholder
shall not result in the termination or dissolution of the Trust,
except to the extent otherwise provided in the Trust Agreement.
(p) The Representative shall have received an opinion of
Xxxxxx & Bird LLP, counsel to the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and in form and
scope to counsel for the Underwriters, (i) with respect to the
characterization of the transfer of the Receivables by AHFC to the Company
and (ii) to the effect that should AHFC become the debtor in a case under
Title 11 of the United States Code (the "Bankruptcy Code") the Company
would not otherwise properly be a debtor in a case under the Bankruptcy
Code, and in a properly presented and decided case, a federal bankruptcy
court would not use its equitable discretion to disregard the corporate
forms of the Company and AHFC so as to substantively consolidate the
assets and liabilities of the Company with the assets and liabilities of
AHFC, and such opinion shall be in substantially the form previously
discussed with the Representative and counsel for the Underwriters and in
any event satisfactory in form and in substance to the Representative and
in form and scope to counsel for the Underwriters.
(q) The Representative shall have received evidence
satisfactory to it and its counsel that, on or before the Closing Date,
UCC-1 financing statements have been or are being filed in the office of
the Secretary of State of the state of (i) California reflecting the
transfer of the interest of AHFC in the Receivables and the proceeds
thereof to the Company and the transfer of the interest of the Company in
the Receivables and
22
the proceeds thereof to the Trust and (ii) Delaware reflecting the grant
of the security interest by the Trust in the Receivables and the proceeds
thereof to the Indenture Trustee.
(r) The Representative shall have received an opinion of
Xxxxxx & Bird LLP, special counsel to the Company, dated the Closing Date
and satisfactory in form and substance to the Representative and in form
and scope to counsel for the Underwriters to the effect that upon
execution and delivery of the Sale and Servicing Agreement, the Indenture
and the Control Agreement, the provisions of the Indenture and the Control
Agreement will be effective to create a valid security interest in favor
of the Indenture Trustee, to secure payment of the Notes, in the Trust's
rights in all "security entitlements" (as defined in Section 8-102(a)(17)
of the UCC) with respect to "financial assets" (as defined in Section
8-102(a)(9) of the UCC) now or hereafter credited to each Securities
Account and in all "security entitlements" (within the meaning of the
Federal Book-Entry Regulations) with respect to Federal Book-Entry
Securities now or hereafter credited to each Securities Account (such
security entitlements, collectively, the "Security Entitlements"); the
provisions of the Indenture and the Control Agreement will be effective to
perfect the security interest of the Indenture Trustee in the Security
Entitlements; and no security interest of any other creditor of the Trust
will be prior to the security interest of the Indenture Trustee in the
Security Entitlements.
(s) Each Class of the Notes shall have been rated in the
highest rating category by each of Xxxxx'x and Fitch.
(t) On or prior to the Closing Date, the Certificates shall
have been issued to the Company.
(u) The Representative shall have received from Xxxxxx & Bird
LLP and each other counsel for the Company, a letter dated the Closing
Date to the effect that the Underwriters may rely upon each opinion
rendered by such counsel to either Xxxxx'x or Fitch in connection with the
rating of any Class of the Notes, as if each such opinion were addressed
to the Underwriters.
(v) The Representative shall have received an opinion of Xxxxx
Xxxx, Esq., counsel to the Company and AHFC, dated the Closing Date, to
the effect that to the best knowledge of such counsel after due inquiry,
there are no actions, proceedings or investigations to which the Company
or AHFC is a party or that are threatened before any court, administrative
agency or other tribunal having jurisdiction over AHFC or the Company, (i)
that are required to be disclosed in the Registration Statement, (ii)
asserting the invalidity of this Agreement, any Basic Document, the Notes
or the Certificates, (iii) seeking to prevent the issuance of the Notes or
the Certificates or the consummation of any of the transactions
contemplated by this Agreement or the Basic Documents, (iv) which might
materially and adversely affect the performance by the Company or AHFC of
its obligations under, or the validity or enforceability of, this
Agreement, any Basic Document, the Notes or the Certificates or (v)
seeking adversely to affect the
23
federal income tax attributes of the Notes as described in the Prospectus
under the heading "Material Income Tax Consequences."
(w) As of the Closing Date, the representations and warranties
of the Company and AHFC contained in the Basic Documents will be true and
correct.
The Company will furnish the Representative with such conformed
copies of such opinions, certificates, letters and documents as the
Representative reasonably requests.
The Representative may, in its sole discretion, waive on behalf of
the Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Company and AHFC will, jointly and severally,
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained or incorporated in the Registration Statement,
each Prospectus, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
neither the Company nor AHFC will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company or AHFC by
any Underwriter through the Representative specifically for use therein,
it being understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in
subsection (b) below.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company and AHFC against any losses, claims, damages
or liabilities to which the Company or AHFC may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained or
incorporated in the Registration Statement, each Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information
24
furnished to the Company by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company or AHFC in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
following information furnished on behalf of each Underwriter: in the
Final Prospectus, the concession and reallowance figures appearing in the
third paragraph under the caption "Underwriting" and in each Prospectus,
the information contained in the third paragraph, the second sentence of
the fifth paragraph, and the seventh paragraph under the caption
"Underwriting" (collectively, the "Underwriter Information").
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof, but the omission so to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under subsection (a)
or (b) above. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and after acceptance by the
indemnified party of such counsel, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a
party if indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Notes or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company
25
on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company or AHFC under this Section
shall be in addition to any liability which the Company or AHFC may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the meaning of
the Act; and the obligations of the Underwriters under this Section shall
be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company or AHFC, to each officer of the Company and
AHFC who has signed the Registration Statement and to each person, if any,
who controls the Company or AHFC within the meaning of the Act.
8. Absence of Fiduciary Relationship. The Company acknowledges
and agrees that:
(a) The Underwriters have been retained solely to act as
Underwriters in connection with the sale of the Notes and that no
fiduciary, advisory or agency relationship between the Company and the
Representative or any of the Underwriters has been created in respect of
any of the transactions contemplated by this Agreement, irrespective of
whether any Underwriter has advised or is advising the Company on other
matters;
(b) the price of the Notes set forth in this Agreement was
established by the Company following discussions and arms-length
negotiations with the Representative
26
and the Company is capable of evaluating and understanding and understands
and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement;
(c) it has been advised that the Underwriters and their affiliates
are engaged in a broad range of transactions which may involve interests
that differ from those of the Company and that the Underwriters have no
obligation to disclose such interests and transactions to the Company by
virtue of any fiduciary, advisory or agency relationship; and
(d) it waives, to the fullest extent permitted by law, any claims
it may have against any Underwriter for breach of fiduciary duty or
alleged breach of fiduciary duty and agrees that the Underwriters shall
have no liability (whether direct or indirect) to the Company in respect
of such a fiduciary duty claim or to any person asserting a fiduciary duty
claim on behalf of or in right of the Company, including stockholders,
employees or creditors of the Company.
9. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Notes hereunder on the Closing Date and
the aggregate principal amount of Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Notes that the Underwriters are obligated to purchase on
such Closing Date, the Representative may make arrangements satisfactory to the
Company for the purchase of such Notes by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
nondefaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Notes that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate principal amount of
Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes that the Underwriters are obligated to purchase
on such Closing Date and arrangements satisfactory to the Representative and the
Company for the purchase of such Notes by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Company, except as provided in
Section 10. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or AHFC or their respective officers and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter or the Company or
AHFC or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Notes. If
this Agreement is terminated pursuant to Section 9 or if for any reason the
purchase of the Notes by the Underwriters is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company, AHFC and the
Underwriters pursuant to Section 7 shall remain in effect. If the purchase of
the Notes by the
27
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 9 or the occurrence of any
event specified in clause (ii), (iii) or (iv) of Section 6(c), the Company and
AHFC, jointly and severally, will reimburse the Underwriters for all out-of
pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Notes.
11. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or sent by facsimile and
confirmed to the Representative at Xxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel, Americas (facsimile number 212 325-6677), or, if
sent to the Company, will be mailed, delivered or sent by facsimile transmission
and confirmed to it at 00000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxx X. Xxxxx, (facsimile: (000) 000-0000), and if to AHFC, will be
mailed, delivered or sent by facsimile transmission and confirmed to it at 00000
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxx,
(facsimile: (000) 000-0000); provided that any notice to an Underwriter pursuant
to Section 7 will be mailed, delivered or telecopied and confirmed to such
Underwriter.
12. No Bankruptcy Petition. Each Underwriter agrees that, prior to
the date which is one year and one day after the payment in full of all
securities issued by the Company or by a trust for which the Company was the
depositor, which securities were rated by any nationally recognized statistical
rating organization, it will not institute against, or join any other person in
instituting against, the Company any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any Federal or
state bankruptcy or similar law.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 10, and no other
person will have any right or obligation hereunder.
14. Representation of Underwriters. The Representative will act
for the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representative will be binding upon all the
Underwriters.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all such
counterparts shall together constitute one and the same Agreement.
16. Applicable Law; Submission to Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
28
(b) Each of the Company and AHFC hereby submits to the
nonexclusive jurisdiction of the Federal and state courts in the Borough
of Manhattan in The City of New York in any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
[Remainder of Page Intentionally Left Blank]
29
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to each of the Company
and AHFC one of the counterparts hereof, whereupon it will become a binding
agreement between the Company, AHFC and the several Underwriters in accordance
with its terms.
Very truly yours,
AMERICAN HONDA RECEIVABLES CORP.
BY: ____________________________________
NAME:
TITLE:
AMERICAN HONDA FINANCE CORPORATION
BY: ____________________________________
NAME:
TITLE:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
CREDIT SUISSE SECURITIES (USA) LLC, acting on behalf of itself and as the
Representative of the several Underwriters
BY: ______________________________
NAME:
TITLE:
SCHEDULE A
Amount of Class Amount of Class Amount of Class Amount of Class
Underwriter A-1 Notes A-2 Notes A-3 Notes A-4 Notes
--------------------------------------- --------------- --------------- --------------- ---------------
Credit Suisse Securities (USA) LLC $ 91,700,000 $102,200,000 $144,200,000 $ 91,952,700
Deutsche Bank Securities Inc. $ 91,700,000 $102,200,000 $144,200,000 $ 91,952,700
Banc of American Securities LLC $ 19,650,000 $ 21,900,000 $ 30,900,000 $ 19,704,150
Barclays Capital Inc. $ 19,650,000 $ 21,900,000 $ 30,900,000 $ 19,704,150
Citigroup Global Markets Inc. $ 19,650,000 $ 21,900,000 $ 30,900,000 $ 19,704,150
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated $ 19,650,000 $ 21,900,000 $ 30,900,000 $ 19,704,150
------------------------------------------------------------------
Total: $262,000,000 $292,000,000 $412,000,000 $262,722,000
==================================================================
A-1
