EXHIBIT 1.1
$1,800,000,000
HONDA AUTO RECEIVABLES 2001-3 OWNER TRUST
$482,000,000 2.38875% ASSET BACKED NOTES, CLASS A-1
$475,000,000 2.76% ASSET BACKED NOTES, CLASS A-2
$438,000,000 3.40% ASSET BACKED NOTES, CLASS A-3
$405,000,000 3.96% ASSET BACKED NOTES, CLASS A-4
AMERICAN HONDA RECEIVABLES CORP.
UNDERWRITING AGREEMENT
October 10, 2001
X.X. Xxxxxx Securities Inc.,
as Representative of the Several Underwriters
000 Xxxx 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 2001-3 Owner Trust (the
"TRUST") to issue and sell $482,000,000 aggregate principal amount of 2.38875%
Asset Backed Notes, Class A-1 (the "CLASS A-1 NOTES"), $475,000,000 aggregate
principal amount of 2.76% Asset Backed Notes, Class A-2 (the "CLASS A-2 NOTES"),
$438,000,000 aggregate principal amount of 3.40% Asset Backed Notes, Class A-3
(the "CLASS A-3 NOTES") and $405,000,000 aggregate principal amount of 3.96%
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 October 1, 2001 (the
"INDENTURE"), between the Trust and Bankers Trust Company (the "INDENTURE
TRUSTEE").
Concurrently with the issuance and sale of the Notes as contemplated
herein, the Trust will issue $46,164,789.37 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 October 17, 2001 (the "TRUST AGREEMENT"), between the
Company, Citibank, N.A., as owner trustee (the "Owner Trustee") and First Union
Trust Company, National Association, as Delaware Trustee (the "Delaware
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 October 1, 2001 (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 October
1, 2001 (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 October 1,
2001 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. The Company hereby agrees with the several
Underwriters named in Schedule A hereto (collectively, the "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. 333-92827), including
a prospectus, relating to the Notes has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective. Such
registration statement, as amended as of the date of the Agreement is
hereinafter referred to as the "Registration Statement," and the
prospectus included in such Registration Statement, as supplemented to
reflect the terms of the Notes as first filed with the Commission after
the date of this Agreement pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Securities Act of 1933, as amended (the "Act"),
including all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus."
(b) On the effective date of the Registration Statement relating to
the Notes, such Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the Commission
promulgated under the Act (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 on the date of this Agreement, the
Registration Statement conforms, and at the time of the filing of the
Prospectus in accordance with Rule 424(b), the Registration Statement and
the Prospectus will conform in all respects to the requirements of the Act
and the Rules and Regulations, and neither of such documents includes or
will include any untrue statement of a material fact or omits or will omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The preceding sentence does
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 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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(d) 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
with the requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations of the Commission
thereunder.
(e) The Company has caused to be filed with the Commission on
October 12, 2001 the Current Report on Form 8-K with respect to the Term
Sheet dated October 5, 2001 relating to the Notes (the "Term Sheet").
(f) 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.
(g) 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).
(h) 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 which 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 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
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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.
(i) 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.
(j) 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.
(k) As of the Closing Date, the representations and warranties of
the Company and AHFC contained in the Basic Documents will be true and
correct.
(l) This Agreement has been duly authorized, executed and delivered
by each of the Company and AHFC.
(m) 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.
(n) 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.
(o) 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.
(p) The computer tape of the Receivables created as of October 1,
2001, 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.
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(q) 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.
(r) 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.
(s) 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").
(t) 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 5.17.075 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,
99.82388% of the principal amount thereof; (iii) the Class A-3 Notes, 99.77849%
of the principal amount thereof; and (iv) the Class A-4 Notes, 99.74676% 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.
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 Xxxxxxxxxx LLP, New York, New York at 10:00 A.M., New York City time, on
October 17, 2001, 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
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made available for checking at the above office of Xxxxx Xxxxxxxxxx LLP at least
24 hours prior to the Closing Date.
The Company will deliver the Certificates to the above office of Xxxxx
Xxxxxxxxxx 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 Xxxxxxxxxx LLP at least 24 hours prior to the Closing
Date.
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), the parties hereto have agreed that the Closing
Date will be not later than October 17, 2001, 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 will not offer or sell, prior to the date six months after their
date of issuance, 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 otherwise in circumstances which have not resulted in 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; (ii) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issuance of the Notes to a person who is of a kind described
in Article 11(3) of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1997 or is a person to whom the document can otherwise
lawfully be issued or passed on.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters:
(a) The Company will file the 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 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.
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(c) 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.
(d) 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).
(e) The Company will furnish to the Underwriters copies of the
Prospectus, the Registration Statement and all amendments and supplements
to such documents, in each case as soon as available and in such
quantities as the Representative reasonably requests. The 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.
(f) 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.
(g) 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 Indenture Trustee pursuant to Section 3.12 of the Sale and Servicing
Agreement, by first-class mail as soon as
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practicable after such statements and reports are furnished to the
Indenture Trustee, 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.
(h) 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.
(i) Subject to the provisions of Section 9 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 in connection with attending or hosting meetings with
prospective purchasers of the Notes and for expenses incurred in
distributing the Term Sheets and the Prospectus (including any amendments
and supplements thereto).
(j) To the extent, if any, that the rating provided with respect to
the Notes by Xxxxx'x Investors Service, Inc. ("MOODY'S"), Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("STANDARD &
POOR'S"), and Fitch, Inc. ("FITCH" and, together with Standard & Poor's
and 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.
(k) 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.
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:
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(a) The Representative shall have received a letter, dated the date
hereof or the Closing Date, of KPMG Peat Marwick 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, the Term Sheet and the 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 each 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 each 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 each
Class of the Notes.
(d) The Representative shall have received an opinion of Xxxxx
Xxxxxxxxxx LLP, special counsel to the Company and AHFC, dated the Closing
Date and satisfactory in form and substance to the Representative and
counsel for the Underwriters, to the effect that:
(i) the Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
California, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
the Company is duly qualified to do business and is in good standing
in each jurisdiction in which its ownership or lease of property or
the conduct of its business requires such qualification, except
where the failure
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to be so qualified and in good standing would not have a material
adverse effect on its obligations under the Basic Documents;
(ii) AHFC has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
California, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; AHFC is
duly qualified to do business and is in good standing in each
jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification, except where
the failure to be so qualified and in good standing would not have a
material adverse effect on its obligations under the Basic
Documents;
(iii) each of the direction by the Company to the Indenture
Trustee to authenticate the Notes and the direction by the Company
to the Owner Trustee to execute the Notes has been duly authorized
by the Company and, when the Notes have been duly executed and
delivered by the Owner Trustee and, when authenticated by the
Indenture Trustee in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be duly and validly issued and outstanding and will
be entitled to the benefits of the Indenture;
(iv) the direction by the Company to the Owner Trustee to
authenticate and execute the Certificates has been duly authorized
by the Company;
(v) each Basic Document to which the Company or AHFC is a
party has been duly authorized, executed and delivered by the
Company and AHFC, respectively;
(vi) no consent, approval, authorization or order of, or
filing with any governmental agency or body or any court is required
for the execution, delivery and performance by the Company of this
Agreement and the Basic Documents to which it is a party, for the
execution, delivery and performance by AHFC of the Basic Documents
to which it is a party or for the consummation of the transactions
contemplated by this Agreement or the Basic Documents, except for
(A) such as have been obtained and made under the Act, (B) such as
may be required under state securities laws and (C) such
authorizations, approvals or consents specified in such opinion as
are in full force and effect as of the Effective Date and the
Closing Date;
(vii) the execution, delivery and performance of this
Agreement and the Basic Documents by the Company and the execution,
delivery and performance of the Basic Documents by AHFC 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 or imposition of any lien, charge or encumbrance upon any
of the property or assets of AHFC or the Company pursuant to the
terms of the Certificate of Incorporation or the By-Laws of AHFC or
the Company or, to the best of such counsel's knowledge and
information, any statute, rule, regulation or
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order of any governmental agency or body, or any court having
jurisdiction over AHFC or the Company or their respective
properties, or any agreement or instrument known to such counsel
after due investigation to which AHFC or the Company is a party or
by which AHFC or the Company or any of their respective properties
is bound;
(viii) such counsel has no reason to believe that the
Registration Statement or any amendment thereto, as of its effective
date 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 Prospectus or any amendment or supplement
thereto, as of its issue date 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 in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; the Registration Statement and
the 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 legal or
governmental proceedings required to be described in the
Registration Statement or the Prospectus which are not described as
required or of any contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which 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 the Prospectus;
(ix) the statements in the Registration Statement under the
heading "CERTAIN LEGAL ASPECTS OF THE RECEIVABLES", to the extent
they constitute statements of matters of law or legal conclusions
with respect thereto, are correct in all material respects;
(x) such counsel is familiar with AHFC's standard operating
procedures relating to AHFC's acquisition of a perfected first
priority security interest in the vehicles financed by AHFC pursuant
to retail installment sale contracts in the ordinary course of
AHFC's business; assuming that AHFC's standard procedures are
followed with respect to the perfection of security interests in the
Financed Vehicles (and such counsel has no reason to believe that
AHFC has not or will not continue to follow its standard procedures
in connection with the perfection of security interests in the
Financed Vehicles), AHFC has acquired or will acquire a perfected
first priority security interest in the Financed Vehicles;
(xi) assuming that the Receivables are in substantially one of
the forms attached to such opinion, the Receivables are "chattel
paper" as defined in the UCC as in effect in the States of New York
and California; and
-11-
(xii) immediately prior to the sale of Receivables by AHFC to
the Company pursuant to the Receivables Purchase Agreement, AHFC was
the sole owner of all right, title and interest in, to and under the
Receivables and the other property to be transferred by it to the
Company. AHFC has full power and authority to sell and assign the
property to be sold and assigned to the Company pursuant to the
Receivables Purchase Agreement and has duly authorized such sale and
assignment to the Company by all necessary corporate action.
(e) The Representative shall have received an opinion of Xxxxx
Xxxxxxxxxx LLP, special counsel to the Company and AHFC, dated the Closing
Date and satisfactory in form and substance to the Representative and
counsel for the Underwriters, to the effect that:
(i) the Receivables Purchase Agreement either (A) transfers an
ownership interest in the Receivables and the proceeds thereof
(subject to Section 9-315 of the UCC as in effect in the State of
California (the "CALIFORNIA UCC")) from AHFC to the Company or (B)
creates a valid security interest in AHFC's rights in the
Receivables and the proceeds thereof (subject to Section 9-315 of
the California UCC) as security for the obligations of AHFC
thereunder;
(ii) the Sale and Servicing Agreement either (A) transfers an
ownership interest in the Receivables and the proceeds thereof
(subject to Section 9-315 of the California UCC) from the Company to
the Trust or (B) creates a valid security interest in the Company's
rights in the Receivables and the proceeds thereof (subject to
Section 9-315 of the California UCC) as security for the obligations
of the Company thereunder;
(iii) the Indenture creates a valid security interest in the
Trust's rights in the Receivables and the proceeds thereof (subject
to Section 9-315 of the California UCC) as security for the
obligations of the Trust thereunder;
(iv) the financing statement on Form UCC-1 naming AHFC as
debtor is in appropriate form for filing in the relevant filing
office under the California UCC. Upon the filing of such financing
Statement in the relevant filing office, the security interest in
favor of the Company in the Receivables and proceeds thereof will be
perfected, and no other security interest of any other creditor of
AHFC will be equal or prior to such security interest;
(v) the financing statement on Form UCC-1 naming the Company
as debtor is in appropriate form for filing in the relevant filing
office under the California UCC. Upon the filing of such financing
statement in the relevant filing office, the security interest in
favor of the Owner Trustee in the Receivables and proceeds thereof
will be perfected, and no other security interest of any other
creditor of the Company will be equal or prior to such security
interest;
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(vi) the provisions of the Indenture are effective to create
in favor of the Indenture Trustee, a valid security interest (as
such term is defined in Section 1-201 of the California UCC) in the
Receivables and proceeds thereof to secure payment of the Notes;
(vii) the Trust Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT");
(viii) the Indenture has been duly qualified under the Trust
Indenture Act;
(ix) the Registration Statement was declared effective under
the Act as of the date specified in such opinion, the Prospectus
either was filed with the Commission pursuant to the subparagraph of
Rule 424(b) specified in such opinion on the date specified therein
or was included in the Registration Statement, and, to the best of
the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Act, and the Registration
Statement and the Prospectus, and each amendment or supplement
thereof, as of their respective effective or issue dates, complies
as to form in all material respects with the requirements of the Act
and the Rules and Regulations;
(x) each of the Receivables Purchase Agreement, the Control
Agreement, the Sale and Servicing Agreement and the Administration
Agreement constitutes the legal, valid and binding agreement of the
Company and AHFC, in each case as to those documents to which it is
a party, enforceable against the Company and AHFC in accordance with
their 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;
(xi) assuming due authorization, execution and delivery by the
Indenture Trustee and the Owner Trustee, 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;
-13-
(xii) neither the Trust nor the Company is and, after giving
effect to the issuance and sale of the Notes and the Certificates
and the application of the proceeds thereof, as described in the
Prospectus, neither the Trust nor the Company will be, an
"investment company" as defined in the Investment Company Act; and
(xiii) this Agreement has been duly authorized, executed and
delivered by the Company and AHFC.
(f) The Representative shall have received an opinion of Xxxxx
Xxxxxxxxxx LLP, special tax counsel for the Company, dated the Closing
Date and satisfactory in form and substance 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 of the Trust
that is secured by the Receivables, (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 under the
headings "SUMMARY--ERISA Considerations", "ERISA CONSIDERATIONS",
"SUMMARY--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", to
the extent such statements constitute matters of law or legal conclusions
with respect thereto, are correct in all material respects.
(g) The Representative shall have received an opinion of Xxxxx
Xxxxxxxxxx LLP, special tax counsel for the Company, dated the Closing
Date and satisfactory in form and substance to the Representative and
counsel for the Underwriters, to the effect that for California state
franchise and California state income tax purposes (i) the Notes will be
characterized as debt and (ii) the Trust will not be classified as an
association (or publicly traded partnership) taxable as a corporation.
(h) The Representative shall have received from Stroock & Stroock &
Xxxxx 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.
(i) 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
-14-
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
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.
(j) The Representative shall have received an opinion of Xxxxxx
and Xxxxxx, counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters, to the effect that:
(i) the Indenture Trustee is a banking corporation validly
existing under the laws of the State of New York;
(ii) the Indenture Trustee has the requisite power and
authority to execute and deliver the Indenture, the Sale and
Servicing Agreement, the Control Agreement and the Administration
Agreement and perform its obligations under each of the Agreements,
and has taken all necessary action to authorize the execution and
delivery of the Indenture, the Sale and Servicing Agreement, the
Control Agreement and the Administration Agreement and performance
by it of each of the Agreements;
(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
Indenture, the Sale and Servicing Agreement, the Control Agreement
and the Administration Agreement;
(iv) the execution and delivery of the Indenture, the Sale and
Servicing Agreement, the Control Agreement and the Administration
Agreement and the performance by the Indenture Trustee of the
respective terms of the Agreements, do not conflict with or result
in a violation of the Articles of Incorporation or By-Laws of the
Indenture Trustee or the applicable federal laws 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;
(v) each of the Indenture, the Sale and Servicing Agreement,
the Control Agreement and the Administration Agreement has been duly
executed and delivered by the Indenture Trustee and each of the
Agreements constitutes a legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee in
accordance with its respective terms, except that certain of such
obligations may be enforceable solely against the Trust Estate and
except that such enforcement may be limited by bankruptcy,
insolvency, reorganization,
-15-
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);
(vi) the Notes delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms
of the Indenture.
(k) The Representative shall have received an opinion of Xxxxxxx
Xxxxxxxx & Xxxx, counsel to the Owner Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters, to the effect that:
(i) the Owner Trustee has been duly incorporated and is
validly existing as a banking corporation under the 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;
(iii) the Trust Agreement has been duly authorized, executed
and delivered by the Owner Trustee and constitutes the legal, valid
and binding obligation of the Owner Trustee, enforceable against the
Owner Trustee 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);
(iv) the execution and delivery by the Owner Trustee of the
Trust Agreement and the performance by the Owner Trustee of its
obligations thereunder do not conflict with, result in a breach or
violation of, or constitute a default under the Articles of
Association or By-laws of the Owner Trustee; and
(v) the execution, delivery and performance by the Owner
Trustee of the Trust Agreement does not require any consent,
approval or authorization of, or any registration or filing with,
any Delaware or United States federal governmental authority having
jurisdiction over the banking or trust powers of the Owner Trustee,
other than those consents, approvals or authorizations as have been
obtained and the filing of the Certificate of Trust with the
Secretary of State of the State of Delaware, which have been duly
filed.
(l) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, counsel to the Delaware Trustee, dated the Closing Date
and satisfactory in form and substance to the Representative and counsel
for the Underwriters, to the effect that:
-16-
(i) the Delaware Trustee has been duly formed and is validly
existing as a national banking association under the federal laws of
the United States of America;
(ii) the Delaware Trustee has the power and authority to
execute, deliver and perform its obligations under the Trust
Agreement;
(iii) the Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee and constitutes the legal,
valid and binding obligation of the Delaware Trustee, enforceable
against the Delaware Trustee 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);
(iv) neither the execution, delivery and performance by the
Delaware Trustee of the Trust Agreement, nor the consummation of any
of the transactions by the Delaware Trustee contemplated thereby, is
in violation of the articles of organization or bylaws of the
Delaware Trustee or of the laws of the State of Delaware or of the
federal laws of the United States of America governing the banking
or trust powers of the Delaware Trustee; and
(v) neither the execution, delivery and performance by the
Delaware Trustee of the Trust Agreement, nor the consummation of any
of the transactions by the Delaware Trustee contemplated thereby,
requires the consent or approval of, the withholding of objection on
the part of, the giving of notice to, the filing, registration or
qualification with, or the taking of any other action in respect of,
any governmental authority or agency under the laws of the State of
Delaware or the federal laws of the United States of America
governing the banking or trust powers of the Delaware Trustee.
(m) The Representative shall have received an opinion Xxxxxxxx,
Xxxxxx & Finger, special Delaware counsel to the Trust, dated the Closing
Date and satisfactory in form and substance 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 business trust under the Delaware Business
Trust Act, 12 DEL. C. Section 3801, ET SEQ. (the "Delaware Act");
(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;
-17-
(iii) the Trust has duly authorized and executed the
Certificates and the Notes, the Owner Trustee has duly authenticated
the Certificates on behalf of the Trust, and when the Certificates
are 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) no refiling or other action is necessary under the
Delaware UCC in order to maintain the perfection of such security
interest except for the filing of continuation statements at five
year intervals;
(vii) 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;
(viii) 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);
(ix) 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
-18-
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;
(x) 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;
(xi) 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;
(xii) 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.
(n) The Representative shall have received an opinion of Xxxxx
Xxxxxxxxxx LLP, counsel to the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and 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") and the Company would not otherwise
properly be a debtor in a case under the Bankruptcy Code, and if the
matter were properly briefed and presented to a court exercising
bankruptcy jurisdiction, the court, exercising reasonable judgment after
full consideration of all relevant factors, should not order, over the
objection of the Certificate holders or the Noteholders, the substantive
consolidation of the assets and liabilities of the Company with those 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
counsel for the Underwriters.
(o) 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 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.
(p) The Representative shall have received an opinion of Xxxxx
Xxxxxxxxxx LLP, special counsel to the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and the counsel
for the Underwriters to the effect that
-19-
(i) the provisions of the Indenture are effective to create a valid
security interest in favor of the Indenture Trustee, to secure payment of
the Notes, in all "securities entitlements" (as defined in Section
8-102(a)(17) of the New York UCC) with respect to "financial assets" (as
defined in Section 8-102(a)(9) of the New York UCC) now or hereafter
credited to the Reserve Account (such securities entitlements, the
"SECURITIES ENTITLEMENTS"), (ii) the provisions of the control agreement
for purposes of Article 8 of the New York UCC are effective to perfect the
security interest of the Indenture Trustee in the Securities Entitlements
and (iii) no security interest of any other creditor of the Trust will be
prior to the security interest of the Indenture Trustee in such Securities
Entitlements.
(q) Each Class of the Notes shall have been rated in the highest
rating category by each of Xxxxx'x, Fitch and Standard & Poor's.
(r) On or prior to the Closing Date, the Certificates shall have
been issued to the Company.
(s) The Representative shall have received from Xxxxx Xxxxxxxxxx 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 Standard & Poor's, 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.
(t) 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 federal income tax attributes of the Notes
as described in the Prospectus under the heading "MATERIAL FEDERAL INCOME
TAX CONSEQUENCES".
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.
-20-
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, the
Term Sheet, the 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; and PROVIDED, FURTHER that with respect to any
untrue statement or omission or alleged untrue statement or omission made
in the Term Sheet, the indemnity agreement contained in this subsection
(a) shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased the
Notes concerned, to the extent that the untrue statement or omission or
alleged untrue statement or omission was eliminated or remedied in the
Prospectus, which Prospectus was required to be delivered by such
Underwriter under the Act to such person and was not so delivered if the
Company or AHFC had previously furnished copies thereof to such
Underwriter.
(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, the 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 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
-21-
information in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the third paragraph under
the caption "Underwriting" and the information contained in the third
paragraph, the second sentence of the fifth paragraph, and the seventh
paragraph under the caption "Underwriting".
(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 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
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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. 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 9. 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.
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9. 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 8 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
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 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.
10. 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 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Global Securitized Finance Group, (facsimile: (000) 000-0000), or, if
sent to the Company, will be mailed, delivered or sent by facsimile transmission
and confirmed to it at 000 Xxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxx X. Xxxxxxxxx, (facsimile: (000) 000-0000), and if to AHFC, will
be mailed, delivered or sent by facsimile transmission and confirmed to it at
000 Xxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxxxx,
(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.
11. 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.
12. 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 7, and no other
person will have any right or obligation hereunder.
13. 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.
14. 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.
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15. 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.
(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.
-25-
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: /s/ X. Xxxxxx
--------------
Name: X. Xxxxxx
Title: President
AMERICAN HONDA
FINANCE CORPORATION
By: /s/ X. Xxxxxx
--------------
Name: X. Xxxxxx
Title: President
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written:
X.X. XXXXXX SECURITIES INC., acting on behalf of itself
and as the Representative of the several Underwriters
By: /s/ Xxxx Xxx
----------------
Name: Xxxx Xxx
Title: Vice President
SCHEDULE A
------------------------------------------- -------------------- ------------------ ---------------- ------------------
Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Underwriter Notes Notes Notes Notes
------------------------------------------- -------------------- ------------------ ---------------- ------------------
Banc of America Securities LLC $183,160,000 $180,500,000 $166,440,000 $153,900,000
------------------------------------------- -------------------- ------------------ ---------------- ------------------
X.X. Xxxxxx Securities Inc. 183,160,000 180,500,000 166,440,000 153,900,000
------------------------------------------- -------------------- ------------------ ---------------- ------------------
Banc One Capital Markets, Inc. 28,920,000 28,500,000 26,280,000 24,300,000
------------------------------------------- -------------------- ------------------ ---------------- ------------------
Barclays Capital Inc. 28,920,000 28,500,000 26,280,000 24,300,000
------------------------------------------- -------------------- ------------------ ---------------- ------------------
Deutsche Banc Xxxx. Xxxxx Inc. 28,920,000 28,500,000 26,280,000 24,300,000
------------------------------------------- -------------------- ------------------ ---------------- ------------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx &
Xxxxx Incorporated 28,920,000 28,500,000 26,280,000 24,300,000
------------ ------------ ------------ ------------
------------------------------------------- -------------------- ------------------ ---------------- ------------------
------------------------------------------- -------------------- ------------------ ---------------- ------------------
Total: $482,000,000 $475,000,000 $438,000,000 $405,000,000
============ ============ ============ ============
------------------------------------------- -------------------- ------------------ ---------------- ------------------
