EXECUTION COPY
$1,800,000,000
HONDA AUTO RECEIVABLES 2003-4 OWNER TRUST
$421,000,000 1.13000% ASSET BACKED NOTES, CLASS A-1
$540,000,000 1.580% ASSET BACKED NOTES, CLASS A-2
$340,000,000 2.190% ASSET BACKED NOTES, CLASS A-3
$499,000,000 2.790% ASSET BACKED NOTES, CLASS A-4
AMERICAN HONDA RECEIVABLES CORP.
UNDERWRITING AGREEMENT
October 23, 2003
X.X. Xxxxxx Securities Inc.,
as Representative of the Several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 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 2003-4 Owner Trust (the
"Trust") to issue and sell $421,000,000 aggregate principal amount of 1.13000%
Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), $540,000,000 aggregate
principal amount of 1.580% Asset Backed Notes, Class A-2 (the "Class A-2
Notes"), $340,000,000 aggregate principal amount of 2.190% Asset Backed Notes,
Class A-3 (the "Class A-3 Notes") and $499,000,000 aggregate principal amount of
2.790% 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,
2003 (the "Indenture"), between the Trust and U.S. Bank Trust National
Association (the "Indenture Trustee").
Concurrently with the issuance and sale of the Notes as contemplated
herein, the Trust will issue $50,899,759.44 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 30, 2003 (the "Trust Agreement"), among the
Company, Citibank, N.A., as owner trustee (the "Owner Trustee") and Wachovia
Trust Company N.A., 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, 2003 (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, 2003 (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, 2003 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. 333-104875),
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).
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(c) The Notes are "asset backed securities" within the meaning of,
and satisfy the requirements for use of, Form S-3 under the Act.
(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 will cause to be filed with the Commission on
October 24, 2003 the Current Report on Form 8-K with respect to the Term
Sheet dated October 22, 2003 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
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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.
(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
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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,
2003, 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.
(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 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,
99.82316% of the principal amount thereof; (iii) the Class A-3 Notes, 99.76899%
of the principal amount thereof; and (iv) the Class A-4 Notes, 99.73403% 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 October 30, 2003, 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 October 30, 2003, 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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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.
(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
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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 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).
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(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 Ratings ("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:
(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, 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
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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 Xxxxxxx,
Xxxxxx, Xxxxxxx & Xxxxxxx LLP, special California 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) each Basic Document to which AHFC or the Company is a party
has been duly authorized by all necessary corporate action on the part
of AHFC or the Company, as applicable, and has been duly executed and
delivered by each of AHFC and the Company;
(ii) each of the direction by the Company to the Indenture Trustee
to authenticate the Notes, as set forth in a letter to be dated as of
the Closing Date, and the direction by the Company to the Owner Trustee
to execute the Notes, as set forth in a letter to be dated as of the
Closing Date, has been duly authorized by all necessary corporate
action on the part of the Company;
(iii) the direction by the Company to the Owner Trustee to
authenticate and deliver the Certificates, as set forth in a letter to
be dated as of the Closing Date, has been duly authorized by all
necessary corporate action on the part of the Company;
(iv) AHFC has the corporate authority to execute, deliver and
perform its obligations under the Receivables Purchase Agreement;
(v) the Company has the corporate authority to execute, deliver
and perform its obligations under the Sale and Servicing Agreement;
(vi) each of AHFC and the Company has the corporate authority to
conduct its business as described in the Prospectus; and
(vii) assuming that AHFC's standard procedures as set forth in an
officer's certificate dated the Closing Date and executed by AHFC
stating that AHFC
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follows the procedures set forth therein in order to obtain a perfected
first priority security interest in Financed Vehicles in the ordinary
course of AHFC's business (and relying solely on such officer's
certificate with respect to such facts) 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.
(e) The Representative shall have received an opinion of XxXxx
Xxxxxx LLP, special 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) 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 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
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delivery by each of the Company or AHFC of the Basic Documents to which
it is a party or the performance by each 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 required pursuant to state
securities or blue sky laws, as to which such counsel shall express no
opinion, and (iii) those that have already been obtained, made or
taken;
(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 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 shall express no opinion) 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 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 necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(vii) 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 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;
(viii) the statements in the 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
12
New York legal conclusions provide a fair and accurate summary of such
law or conclusions; and
(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 XxXxx
Xxxxxx LLP, special 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, 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;
13
(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 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) with respect to rights or
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
14
scope to the Representative and counsel for the Underwriters, to the effect
that for 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 O'Melveny & 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.
(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 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 &
Xxxxxxx 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) 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
15
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, 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.
(l) The Representative shall have received an opinion of Xxxxxxx
Xxxxxxxx & Xxxx LLP, 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 a national banking association validly
existing under the laws of the United States of America;
16
(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 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) 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 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.
(m) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Xxxxxx, P.A., 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:
(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
17
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 any law, governmental rule or regulation of the State of
Delaware or of the United States of America governing the 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 trust powers
of the Delaware Trustee.
(n) 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");
(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, 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,
18
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 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;
19
(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.
(o) The Representative shall have received an opinion of XxXxx
Xxxxxx 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") and 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.
(p) 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.
(q) The Representative shall have received an opinion of XxXxx
Xxxxxx 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
20
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.
(r) Each Class of the Notes shall have been rated in the highest
rating category by each of Xxxxx'x, Fitch and Standard & Poor's.
(s) On or prior to the Closing Date, the Certificates shall have
been issued to the Company.
(t) The Representative shall have received from XxXxx Xxxxxx 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.
(u) 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 INCOME TAX CONSEQUENCES."
(v) 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.
21
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
22
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
23
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.
24
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: ABS Syndicate & Trading, (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 andtheir respective successors and the officers
and directors and controlling persons referred to in Section 9, 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.
25
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.
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.
[Remainder of Page Intentionally Left Blank]
26
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: Secretary
AMERICAN HONDA
FINANCE CORPORATION
BY: /s/ X. Xxxxxx
--------------------------------
NAME: X. Xxxxxx
TITLE: Secretary
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
S-1
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
------------------------------ ------------ ------------ ------------ ------------
X.X. Xxxxxx Securities Inc. $158,500,000 $202,000,000 $128,000,000 $187,500,000
Credit Suisse First Boston LLC $158,500,000 $202,000,000 $128,000,000 $187,500,000
Deutsche Bank Securities Inc. $26,000,000 $34,000,000 $21,000,000 $31,000,000
Banc of America Securities LLC $26,000,000 $34,000,000 $21,000,000 $31,000,000
Xxxxxxx'x Capital Inc. $26,000,000 $34,000,000 $21,000,000 $31,000,000
Banc One Capital Markets, Inc. $26,000,000 $34,000,000 $21,000,000 $31,000,000
Total: $421,000,000 $540,000,000 $340,000,000 $499,000,000
A-1
