EXHIBIT 4.5
TO THE REGISTRATION STATEMENT
(6/21/00)
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this ______ day of
____________, by and between AMERICAN HONDA FINANCE CORPORATION, a California
corporation (the "Seller"), having its principal executive office at 000 Xxx
Xxxx Xxxxxx, Xxxxxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, and AMERICAN HONDA
RECEIVABLES CORP., a California corporation (the "Purchaser"), having its
principal executive office at 000 Xxx Xxxx Xxxxxx, Xxxxxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000.
WHEREAS, in the regular course of its business, the Seller
purchases certain motor vehicle retail installment sale contracts secured by new
and used automobiles, mini-vans and sport utility vehicles from motor vehicle
dealers.
WHEREAS, the Seller and the Purchaser wish to set forth the
terms pursuant to which the Receivables (as hereinafter defined) are to be sold
by the Seller to the Purchaser, which Receivables will be transferred by the
Purchaser pursuant to the [Pooling and Servicing Agreement (as hereinafter
defined)] [Sale and Servicing Agreement (as hereinafter defined)], to the HONDA
AUTO RECEIVABLES [____] [GRANTOR] [OWNER] TRUST to be created thereunder, which
Trust will issue [notes backed by such Receivables and the other property of the
Trust (the "Notes") and] certificates representing fractional undivided
interests in such Receivables and the other property of the Trust (the
"Certificates").
NOW, THEREFORE, in consideration of the foregoing, other good
and valuable consideration, and the mutual terms and covenants contained herein,
the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Agreement shall have the respective
meanings assigned such terms set forth in the [Pooling and Servicing Agreement]
[Sale and Servicing Agreement or Trust Agreement, as the case may be]. As used
in this Agreement, the following terms shall, unless the context otherwise
requires, have the following meanings (such meanings to be equally applicable to
the singular and plural forms of the terms defined):
"Agreement" means this Purchase Agreement and all amendments
hereof and supplements hereto.
"Assignment" means the document of assignment attached to this
Agreement as EXHIBIT A.
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"Certificates" shall have the meaning specified in the
introductory paragraphs of this Agreement.
"Closing" shall have the meaning specified in Section 2.2.
"Closing Date" means [____].
"Collections" means all amounts collected by the Servicer
(from whatever source) on or with respect to the Receivables.
"Damages" shall have the meaning specified in Section 5.3(a).
["Notes" shall have the meaning specified in the introductory
paragraphs of this Agreement.]
"Payment Date" means, with respect to a Collection Period, the
fifteenth calendar day of the next succeeding calendar month or, if such day is
not a Business Day, the next succeeding Business Day, commencing
[_______________].
["Pooling and Servicing Agreement" means the Pooling and
Servicing Agreement by and among the Seller, as servicer and in its individual
capacity, the Purchaser, and [______], as trustee, dated as of [____], as the
same may be amended, amended and restated, supplemented or modified.]
"Prospectus" has the meaning assigned to such term in the
Underwriting Agreement.
"Purchaser" means Honda Auto Receivables Corp., a California
corporation, and its successors and assigns.
"Rating Agency" means Xxxxx'x Investors Service, Inc.,
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. or Fitch ICBA, Inc. or any successors thereto.
"Receivable" means any retail installment sale contract that
appears on the Schedule of Receivables.
"Receivables Purchase Price" means $[____].
"Repurchase Event" shall have the meaning specified in Section
6.2.
["SALE AND SERVICING AGREEMENT" means the Sale and Servicing
Agreement by and among American Honda Receivables Corp., as seller, American
Honda Finance Corporation, as servicer, and the Trust dated as of [_____], as
the same may be amended, amended and restated, supplemented or modified.]
"Schedule of Receivables" means the list of Receivables
annexed to the Assignment as SCHEDULE A thereto.
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["Securities" means the Notes and the Certificates.]
"Seller" means American Honda Finance Corporation, a
California corporation, and its successors and assigns.
"Trust" means the Honda Auto Receivables [______] [Grantor]
[Owner] Trust.
"Trust Agreement" means the Trust Agreement dated as of
_________, 2000 as amended by the Amended and Restated Trust Agreement by and
between American Honda Receivables Corp., as seller, and [_____], as trustee,
dated as of [_______], as the same may be amended, amended and restated,
supplemented or modified.
"Underwriting Agreement" means the Underwriting Agreement by
and among [___], dated [____].
With respect to all terms in this Agreement, the singular
includes the plural and the plural the singular; words importing any gender
include the other genders; references to "writing" include printing, typing,
lithography and other means of reproducing words in a visible form; references
to agreements and other contractual instruments include all subsequent
amendments, amendments and restatements and supplements thereto or changes
therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; references to laws include their amendments and
supplements, the rules and regulations thereunder and any successors thereto;
and the term "including" means "including without limitation."
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1 Purchase and Sale of Receivables.
On the Closing Date, subject to the terms and conditions of
this Agreement, the Seller agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the Seller, the Receivables and the other property
relating thereto (as defined below).
(a) TRANSFER OF RECEIVABLES. On the Closing Date and
simultaneously with the transactions pursuant to the [Pooling and Servicing
Agreement] [Sale and Servicing Agreement], the Seller shall sell, transfer,
assign and otherwise convey to the Purchaser, without recourse:
(i) all right, title and interest of the Seller in
and to the Receivables and all monies due thereon or paid thereunder or
in respect thereof [(including proceeds of the repurchase of the
Receivables by the Seller pursuant to Section 6.2 hereof)] on or after
the Cutoff Date;
(ii) the right of the Seller in the security
interests in the Financed Vehicles granted by the Obligors pursuant to
the Receivables and any related property;
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(iii) the right of the Seller in any proceeds from
claims on any physical damage, credit life, credit disability or other
insurance policies covering Financed Vehicles, the Receivables or
Obligors;
(iv) the right of the Seller in any [proceeds of]
Dealer Recourse;
(v) the right of the Seller to realize upon any
property (including the right to receive future Net Liquidation
Proceeds) that shall have secured a Receivable [and have been
repossessed by or on behalf of the Trustee];
(vi) [the right of the Seller in rebates of premiums
and other amounts relating to insurance policies and other items
financed under the Receivables in effect as of the Cutoff Date;] and
(vii) all proceeds of the foregoing.
It is the intention of the Seller that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables from
the Seller to the Purchaser and the beneficial interest in and title to the
Receivables shall not be part of the Seller's estate in the event of the filing
of a bankruptcy petition by or against the Seller under any bankruptcy law. The
Seller agrees to execute and file all filings (including filings under the UCC)
necessary in any jurisdiction to provide third parties with notice of the sale
of the Receivables pursuant to this Agreement and to perfect such sale under the
UCC.
(b) RECEIVABLES PURCHASE PRICE. In consideration for the
Receivables and other properties described in Section 2.1(a), the Purchaser
shall, on the Closing Date, pay to the Seller the Receivables Purchase Price. An
amount equal to approximately [____]% of the Receivables Purchase Price shall be
paid to the Seller in cash, net of any costs of the Purchaser related to the
establishment of the Trust and the offering of the [Certificates] [Securities],
by federal wire transfer (same day) funds. The remaining approximately
[_______]% of the Receivables Purchase Price shall be deemed paid by the
Purchaser to the Seller and then immediately returned by the Seller to the
Purchaser as a contribution to capital.
2.2 THE CLOSING. The sale and purchase of the Receivables
shall take place at a closing (the "Closing") at the offices of [______] on the
Closing Date, simultaneously with the closings under: (a) the [Pooling and
Servicing Agreement] [Sale and Servicing Agreement] pursuant to which (i) the
Purchaser will assign all of its right, title and interests in and to the
Receivables and other property conveyed pursuant to Section 2.1(a) to the
Trustee for the benefit of the [Certificateholders] [Securityholders]; and (ii)
the Purchaser will deposit the foregoing into the Trust in exchange for [the
Certificates][the Securities]; and (b) the Underwriting Agreement, pursuant to
which the Purchaser will sell to the underwriters named therein [the Class ___
Certificates] [the Class ___ Notes and the Class ___ Certificates].
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Seller as of the date hereof and as of the
Closing Date:
(a) ORGANIZATION AND GOOD STANDING. The Purchaser has been
duly organized and is validly existing as a corporation in good standing under
the laws of the State of California, with corporate power and authority to
execute and deliver this Agreement and to perform the terms and provisions
hereof.
(b) DUE QUALIFICATION. The Purchaser shall be duly qualified
to do business as a foreign corporation in good standing, and shall have
obtained all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall require such
qualifications and where the failure to so qualify will have a material adverse
effect on the ability of the Purchaser to conduct its business or perform its
obligations under this Agreement.
(c) DUE AUTHORIZATION AND NO VIOLATION. This Agreement has
been duly authorized, executed and delivered by the Purchaser, and constitutes a
legal, valid and binding obligation of the Purchaser, enforceable in accordance
with its terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium, liquidation or other similar laws affecting creditors' rights
generally and to general equitable principles. The execution, delivery and
performance of this Agreement and consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict with,
result in a breach of any of the terms or provisions of, nor constitute (with or
without notice or lapse of time) a default under, or result in the creation or
imposition of any Lien to the Purchaser upon any of the property or assets of
the Purchaser 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 Purchaser is a debtor or guarantor, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or the By-laws of the Purchaser; which breach, default, conflict,
Lien or violation in any case would have a material adverse effect on the
ability of the Seller to perform its obligations under this Agreement.
(d) NO PROCEEDINGS. There are no proceedings or investigations
pending to which the Purchaser is a party or of which any property of the
Purchaser is the subject, and, to the best of the Purchaser's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others; other than such proceedings that would not have a material
adverse effect upon the ability of the Purchaser to perform its obligations
under, or the validity and enforceability of, this Agreement.
3.2 REPRESENTATIONS AND WARRANTIES OF THE SELLER. (a) The
Seller hereby represents and warrants to the Purchaser as of the date hereof and
as of the Closing Date:
(i) ORGANIZATION AND GOOD STANDING. The Seller has
been duly organized and is validly existing as a corporation in good
standing under the laws of the
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State of California and is duly qualified and in good standing in
each jurisdiction in the United States of America in which the
conduct of its business or the ownership of its property requires
such qualification and where the failure to so qualify would have a
material adverse effect on the ability of the Seller to perform its
obligations under this Agreement.
(ii) POWER AND AUTHORITY. The Seller has the
corporate power and authority to execute and deliver this Agreement and
sell and assign the property sold and assigned to the Purchaser
hereunder and has duly authorized such sale and assignment to the
Purchaser by all necessary corporate action. This Agreement has been
duly authorized, executed and delivered by the Seller and constitutes a
legal, valid and binding obligation of the Seller, enforceable in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium, liquidation or other similar
laws affecting creditors' rights generally and by general equitable
principles.
(iii) NO VIOLATION. The execution, delivery and
performance by the Seller of this Agreement and consummation of the
transaction contemplated by this Agreement, and the fulfillment of the
terms hereof, do not conflict with, or result in a breach of any of the
terms or provisions of, nor constitute (with or without notice or lapse
of time) a default under, or result in the creation or imposition of
any Lien upon any of the property or assets of the Seller 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 Seller is a debtor or guarantor, nor will such action
result in any violation of the provisions of the Articles of
Incorporation or the Bylaws of the Seller; which breach, default,
conflict, Lien or violation in any case would have a material adverse
effect on the ability of the Seller to perform its obligations under
this Agreement.
(iv) NO PROCEEDINGS. There are no proceedings or
investigations pending to which the Seller is a party or of which any
property of the Seller is the subject, and, to the best of the Seller's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others, other than such
proceedings that would not have a material adverse effect upon the
ability of the Seller to perform its obligations under, or the validity
and enforceability of, this Agreement.
(b) The Seller makes the following representations and
warranties as to the Receivables on which the Purchaser relies in accepting the
Receivables. Such representations and warranties speak as of the Cutoff Date,
but shall survive the sale, transfer, and assignment of the Receivables to the
Purchaser hereunder and the subsequent assignment and transfer pursuant to the
[Pooling and Servicing Agreement] [Sale and Servicing Agreement]:
(i) CHARACTERISTICS OF RECEIVABLES. Each Receivable
(a) has been originated in the United States of America by a Dealer for
the retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, has been fully and properly executed by the parties
thereto, has been purchased by the Seller from such Dealer under an
existing dealer agreement with the Seller, and has been validly
assigned by such Dealer to the Seller, (b) has created a valid,
subsisting and enforceable first priority
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security interest in favor of the Seller in such Financed Vehicle,
(c) contains customary and enforceable provisions such that the
rights and remedies of the holder thereof are adequate for
realization against the collateral of the benefits of the security,
(d) provides for level monthly payments (provided that the payment
in the first or last month in the life of the Receivable may be
minimally different from the level payment) that fully amortize the
Amount Financed over an original term of no greater than [____]
months and shall provide for a finance charge or shall yield
interest at the related Annual Percentage Rate, (e) provides for, in
the event that such Receivable is prepaid, a prepayment that fully
pays the Principal Balance and includes accrued but unpaid interest
at least through the date of prepayment in an amount calculated by
using an interest rate at least equal to its APR, (f) has an Obligor
that is not a federal, state or local governmental entity and (g) is
a retail installment contract.
(ii) SCHEDULE OF RECEIVABLES. The information set
forth in SCHEDULE A to this Agreement was true and correct in all
material respects as of the opening of business on the Cutoff Date; the
Receivables were selected from the Seller's retail installment sale
contracts meeting the criteria of the Trust set forth herein and in the
[Pooling and Servicing Agreement] [Sale and Servicing Agreement]; and
no selection procedures believed to be adverse to the
[Certificateholders] [Securityholders] were utilized in selecting the
Receivables.
(iii) COMPLIANCE WITH LAW. Each Receivable and the
sale of the related Financed Vehicle complied at the time it was
originated or made and at the execution of this Agreement complies in
all material respects with all requirements of applicable federal,
state and local laws, and regulations thereunder, including usury laws,
the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Fair Credit Reporting Act, the Fair Credit Billing Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, the Soldiers and Sailors Civil Relief Act
of 1940, the Federal Reserve Board's Regulations B, M, and Z, state
adaptations of the National Consumer Credit Protection Act and of the
Uniform Consumer Credit Code, state "Lemon Laws" designed to prevent
fraud in the sale of automobiles and other consumer credit laws and
equal credit opportunity and disclosure laws.
(iv) BINDING OBLIGATION. Each Receivable represents
the genuine, legal, valid and binding payment obligation in writing of
the related Obligor, enforceable by the holder thereof in accordance
with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and by general principles of equity, regardless of
whether such enforceability shall be considered in a proceeding in
equity or at law.
(v) SECURITY INTEREST IN FINANCED VEHICLE. (a)
Immediately prior to the sale, assignment and transfer thereof to the
Purchaser, each Receivable was secured by a validly perfected first
priority security interest in the related Financed Vehicle in favor of
the Seller as secured party or all necessary or all appropriate actions
have been commenced that would result in the valid perfection of a
first priority security interest in the related Financed Vehicle in
favor of the Seller as secured party, and (b) as of the
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Cutoff Date, according to the records of the Seller, no Financed
Vehicle has been repossessed a reinstated.
(vi) RECEIVABLES IN FORCE. No Receivable has been
satisfied, subordinated or rescinded, nor has any Financed Vehicle been
released from the lien granted by the related Receivable in whole or in
part.
(vii) NO WAIVER. No provision of a Receivable has
been waived in such a manner [that is prohibited by the provisions of
the [Pooling and Servicing Agreement] [Sale and Servicing Agreement] or
that would cause such Receivable to fail to meet all of the other
representations and warranties made by the Seller herein with respect
thereto.
(viii) NO DEFENSES. To the Seller's knowledge, no
Receivable is subject to any right of rescission, setoff, counterclaim
or defense, including the defense of usury, and the operation of any of
the terms of any Receivable, or the exercise of any right thereunder,
will not render such Receivable unenforceable in whole or in part or
subject such Receivable to any right of rescission, setoff,
counterclaim or defense, including the defense of usury, and no such
right of rescission, setoff, counterclaim or defense has been asserted
with respect thereto.
(ix) NO LIENS. To the Seller's knowledge, no liens
have been filed, including liens for work, labor or materials relating
to a Financed Vehicle, that shall be liens prior to, or equal or
coordinate with, the security interest in the Financed Vehicle granted
by the related Receivable.
(x) NO DEFAULT. Except for payment defaults
continuing for a period of not more than 30 days as of the Cutoff Date,
no default, breach, violation or event permitting acceleration under
the terms of any Receivable has occurred; and no continuing condition
that with notice or the lapse of time would constitute a default,
breach, violation or event permitting acceleration under the terms of
any Receivable has arisen (other than deferrals and waivers of late
payment charges or fees permitted under the [Pooling and Servicing
Agreement] [Sale and Servicing Agreement]); and the Seller has not
waived any of the foregoing except as otherwise permitted hereunder.
(xi) INSURANCE. Pursuant to the Receivables, each
Obligor has been required to obtain physical damage insurance covering
the related Financed Vehicle and the Obligor is required under the
terms of the related Receivable to maintain such insurance.
(xii) TITLE. It is the intention of the Seller that
the transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Receivables from the Seller to the Purchaser
and that the beneficial interest in and title to the Receivables not be
part of the Seller's estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law. No
Receivable has been sold, transferred, assigned or pledged by the
Seller to any Person other than the Purchaser, and no provision of a
Receivable shall have been waived, except as provided in clause (vii)
above. Immediately prior to the transfer and assignment herein
contemplated, the Seller
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had good and marketable title to each Receivable free and clear of
all Liens and rights of others and, immediately upon the transfer
thereof, the Purchaser shall have good and marketable title to each
Receivable, free and clear of all Liens and rights of others, and
the transfer and assignment herein contemplated shall have been
perfected under the UCC. Each Receivable File contains the original
certificate of title (or a photocopy or image thereof) or evidence
that an application for a certificate of title has been filed.
(xiii) LAWFUL ASSIGNMENT. No Receivable has been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable under
this Agreement or pursuant to transfers of the Certificates are
unlawful, void or voidable.
(xiv) ALL FILINGS MADE. All filings (including,
without limitation, UCC filings) necessary in any jurisdiction to give
the Purchaser a first priority perfected ownership interest in the
Receivables have been made or have been delivered in form suitable for
filing to the Purchaser.
(xv) CHATTEL PAPER. Each Receivable constitutes
"chattel paper", as such term is defined in the UCC.
(xvi) CALCULATION OF FINANCE CHARGE OR INTEREST. Each
Receivable shall provide for payment of a finance charge or shall yield
interest calculated on the basis of the Rule of 78s, the simple
interest method or the actuarial method.
(xvii) ONE ORIGINAL. There is only one original
executed copy of each Receivable.
(xviii) APR. The APR of each Receivable shall, if
based on (1) the Rule of 78s, be equal to or greater than [____]% and
equal to or less than [____]%, (2) the actuarial method, be equal to or
greater than [____]% and equal to or less than [____]% and (3) the
simple interest method, be equal to or greater than [____]% and equal
to or less than [____]%.
(xix) No AMENDMENTS. No Receivable has been amended
such that the amount of the Obligor's Scheduled Payments has increased.
(xx) MATURITY. As of the Cutoff Date, each Receivable
had a remaining term to maturity of not less than [_____] months and
not greater than [____] months, and each Receivable had an original
maturity of at least [____] months and not more than [____] months.
(xxi) BALANCE. Each Receivable had an original
principal balance of not less than $[____________] and not more than
$[____________] and, as of the Cutoff Date, had a principal balance of
not less than $[______] and not more than $[_________].
(xxii) DELINQUENCY. No Receivable was more than [30]
days past due as of the Cutoff Date and no Receivable has been extended
by more than [___] months.
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(xxiii) BANKRUPTCY. No Obligor was the subject of a
bankruptcy proceeding (according to the records of the Seller) as of
the Cutoff Date.
(xxiv) ORIGINATION. Each Receivable has an
origination date on or before [_____________].
(xxv) [FORCED-PLACED INSURANCE PREMIUMS. No contract
relating to any Receivable has had forced-placed insurance premiums
added to the amount financed.]
(xxvi) [NO FRAUD OR MISREPRESENTATION. To the
knowledge of the Seller, no Receivable was originated by a Dealer and
sold by such Dealer to the Seller with any conduct constituting fraud
or misrepresentation on the part of such Dealer.]
(xxvii) BILLING ADDRESS. As of the Cutoff Date, the
Obligor under each Receivable had a current billing address in the
United States.
ARTICLE IV
CONDITIONS
4.1 CONDITIONS TO OBLIGATION OF THE PURCHASER. The obligation
of the Purchaser to purchase the Receivables is subject to the satisfaction of
the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of the Seller hereunder shall be true and correct in all material
respects on the Closing Date with the same effect as if then made, and the
Seller shall have performed in all material respects all obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) COMPUTER FILES MARKED. The Seller shall, at its own
expense, on or prior to the Closing Date, (i) annotate and indicate in its
computer files that the Receivables have been sold to the Purchaser pursuant to
this Agreement, (ii) deliver to the Purchaser the Schedule of Receivables which
shall be (A) a computer file or printed or microfiche list containing a true and
complete list of all such receivables, identified by account number and by the
Principal Balance of each Receivable as of the Cutoff Date and (B) certified by
an officer of the Seller to be true, correct and complete in all material
respects and (iii) deliver the Receivable Files to or upon the order of the
Purchaser.
(c) DOCUMENTS TO BE DELIVERED BY THE SELLER AT THE
CLOSING.
(i) THE ASSIGNMENT. At the Closing, the Seller shall
execute and deliver the Assignment.
(ii) EVIDENCE OF UCC FILING. On or prior to the
Closing Date, the Seller shall record and file, or deliver in a form
suitable for filing to the Purchaser, at the Seller's own expense, a
UCC-1 financing statement in each jurisdiction in which required by
applicable law, executed by the Seller, as seller or debtor, and naming
the Purchaser, as purchaser or secured party, and the [Trustee][Owner
Trustee], as assignee of the Purchaser, naming the Receivables and the
other property conveyed hereunder as
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collateral, meeting the requirements of the laws of each such
jurisdiction and in such manner as is necessary to perfect the sale,
transfer, assignment and conveyance of such Receivables and such
other property to the Purchaser.
(iii) OTHER DOCUMENTS. At the Closing, the Seller
shall deliver such other documents as the Purchaser may reasonably
request.
(d) OTHER TRANSACTIONS. The transactions contemplated by the
[Pooling and Servicing Agreement] [Sale and Servicing Agreement] shall be
consummated on the Closing Date.
4.2 CONDITIONS TO OBLIGATION OF THE SELLER. The obligation of
the Seller to sell the Receivables to the Purchaser is subject to the
satisfaction of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of the Purchaser hereunder shall be true and correct in all
material respects on the Closing Date with the same effect as if then made, and
the Purchaser shall have performed in all material respects all obligations to
be performed by it hereunder on or prior to the Closing Date.
(b) RECEIVABLES PURCHASE PRICE. On the Closing Date, the
Purchaser shall deliver to the Seller the Receivables Purchase Price, as
provided in Section 2.1(b).
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows; PROVIDED,
HOWEVER, that, to the extent that any provision of this ARTICLE V conflicts with
any provision of the [Pooling and Servicing Agreement] [Sale and Servicing
Agreement], the [Pooling and Servicing Agreement] [Sale and Servicing Agreement]
shall govern:
5.1 PROTECTION OF RIGHT, TITLE AND INTEREST.
(a) The Seller shall execute and file such financing
statements and cause to be executed and filed such continuation statements, all
in such manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of the Purchaser in the Receivables and the
proceeds thereof. The Seller shall deliver (or cause to be delivered) to the
Purchaser file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) The Seller shall notify the Purchaser within 30 days after
any change of its name, identity or corporate structure in any manner that
would, could or might make any financing statement or continuation statement
filed in accordance with paragraph (a) above seriously misleading within the
meaning of Section 9-402(7) of the UCC, and shall promptly execute and file
appropriate amendments to all previously filed financing statements or
continuation statements.
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(c) The Seller shall notify the Purchaser of any relocation
of its principal executive office or any office at which the Seller keeps
records concerning the Receivables within 90 days after such relocation, if,
as a result of such relocation, the applicable provisions of the UCC would
require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly
execute and file any such financing statement or amendment. The Seller shall
at all times maintain its principal executive office within the United States
of America.
(d) The Seller shall maintain its computer systems so that,
from and after the time of sale hereunder of the Receivables to the
Purchaser, the Seller's master computer records that refer to a Receivable
shall indicate clearly the interest of the Purchaser in such Receivable and
that such Receivable is owned by the Purchaser.
(e) The Seller covenants and agrees that it will not
convey, assign, exchange or otherwise transfer the Receivables to any Person
prior to the termination of this Agreement. If at any time the Seller shall
propose to sell, grant a security interest in, or otherwise transfer any
interest in automotive receivables to any prospective purchaser, lender or
other transferee, the Seller shall give to such prospective purchaser, lender
or other transferee computer tapes, records or print-outs that, if they shall
refer in any manner whatsoever to any Receivable, shall indicate clearly that
such Receivable has been sold and is owned by the Purchaser.
(f) The Seller shall permit the Purchaser and its agents at
any time during normal business hours upon reasonable advance notice to
inspect, audit and make copies of and abstracts from the Seller's records
regarding any Receivable.
(g) The Purchaser, the Seller or the Trustee, as the case
may be, shall inform the other parties promptly, in writing, upon discovery
of any breach of the Seller's representations and warranties pursuant to this
Section which materially and adversely affects the interests of the
Certificateholders on any Receivable.
(h) The Seller agrees to deliver in kind upon receipt to
the Servicer under the [Pooling and Servicing Agreement]
[Sale and Servicing Agreement] (if other than the Seller) all payments
received by the Seller in respect of the Receivables as soon as practicable
after receipt thereof by the Seller.
(i) The Seller shall take no action, nor omit to take any
action, which would impair the rights of the Purchaser in any Receivable, nor
shall it, except as otherwise provided in this Agreement or the
[Pooling and Servicing Agreement] [Sale and Servicing Agreement], reschedule,
revise or defer payments due on any Receivable.
5.2 OTHER LIENS OR INTERESTS. Except for the conveyances
hereunder and contemplated pursuant to the [Pooling and Servicing Agreement]
[Sale and Servicing Agreement], the Seller shall not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist
any Lien on any interest therein, and the Seller shall defend the right, title
and interest of the Purchaser in, to and under such Receivables, whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Seller; PROVIDED, HOWEVER, that the Seller's obligations
under this Section 5.2 shall terminate
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upon the termination of the Trust pursuant to the [Pooling and Servicing
Agreement] [Sale and Servicing Agreement][; PROVIDED, HOWEVER, nothing herein
shall prevent or prohibit the Seller from (a) allowing tax liens or (b)
allowing a lien while the Seller is contesting it (so long as the Seller has
set aside adequate reserves to pay off the lien)].
5.3 INDEMNIFICATION.
(a) The Seller shall defend, indemnify and hold harmless
the Purchaser from and against any and all costs, expenses, losses, damages,
claims and liabilities (collectively, "Damages"), arising out of or resulting
from the failure of a Receivable to be originated in compliance with all
requirements of law and for any breach of any of the Seller's representations
and warranties contained herein.
(b) The Seller shall defend, indemnify and hold harmless
the Purchaser from and against any and all Damages arising out of or
resulting from the use, ownership or operation by the Seller or any affiliate
thereof of a Financed Vehicle.
(c) The Seller shall defend, indemnify and hold harmless
the Purchaser from and against any and all taxes that may at any time be
asserted against the Purchaser with respect to the transactions contemplated
herein, including, without limitation, any sales, gross receipts, general
corporation, tangible personal property, privilege, or license taxes (but not
including any taxes asserted with respect to ownership of the Receivables or
federal or other taxes arising out of the transactions contemplated by this
Agreement and any related documents) and costs and expenses in defending
against the same.
(d) The Seller shall defend, indemnify and hold harmless
the Purchaser from and against any and all Damages to the extent that such
Damage arose out of, or was imposed upon the Purchaser through, the
negligence, willful misfeasance or bad faith of the Seller in the performance
of its duties under the Agreement or by reason of reckless disregard of the
Seller's obligations and duties under this Agreement.
(e) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against all Damages arising out of or incurred in connection
with the acceptance or performance of the Seller's trusts and duties as Servicer
under the [Pooling and Servicing Agreement] [Sale and Servicing Agreement],
except to the extent that such Damages shall be due to the willful misfeasance,
bad faith or negligence (except for errors in judgment) of the Purchaser.
These indemnity obligations shall be in addition to any
obligation that the Seller may otherwise have.
(f) Promptly after receipt by a party indemnified under
this Section 5.3 (an "Indemnified Party") of notice of the commencement of
any action, such Indemnified Party will, if a claim in respect thereof is to
be made against the Seller under this Section 5.3, notify the Seller of the
commencement thereof. If any such action is brought against any Indemnified
Party under this Section 5.3 and it notifies the Seller of the commencement
thereof, the Seller will assume the defense thereof, with counsel reasonably
satisfactory to such Indemnified Party (who may, unless there is, as
evidenced by an opinion of counsel to the Indemnified Party stating that
13
there is an unwaivable conflict of interest, be counsel to the Indemnifying
Party), and the Seller will not be liable to such Indemnified Party under
this Section 5.3 for any legal or other expenses subsequently incurred by
such Indemnified Party in connection with the defense thereof, other than
reasonable costs of investigation. The obligations set forth in this Section
5.4 shall survive the termination of this Agreement and shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Seller shall have made any indemnity payments pursuant to this Section 5.3
and the Person to or on behalf of whom such payments are made thereafter
collects any of such amounts from others, such Person shall promptly repay
such amounts to the Seller, without interest (except to the extent received
by such Person).
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 OBLIGATIONS OF SELLER. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
6.2 REPURCHASE EVENTS. The Seller hereby covenants and agrees
with the Purchaser for the benefit of the Purchaser, the [Owner Trustee]
[Trustee] and the holders of the [Securities] [Certificates], that the
occurrence of a breach of any of the Seller's representations and warranties
contained in Section 3.2(b), which breach materially and adversely affects the
interests of the [Securityholders] [Certificateholders] in any Receivable and
which breach shall not have been cured by the last day of the second Collection
Period following the Collection Period in which the discovery of the breach is
made or notice is received, as the case may be (or, at option of the Seller, the
last day in the first Collection Period following the Collection Period in which
such discovery is made), shall constitute events obligating the Seller to
repurchase Receivables hereunder ("Repurchase Events"), at the amount of the
Warranty Purchase Payment in respect of each such Receivable from the Purchaser
[or, as described in Section 6.4 below, from the Trust] and the Seller shall be
entitled to receive the Released Warranty Amount. The repurchase obligation of
the Seller shall constitute the sole remedy of the holders of the [Securities]
[Certificates], the [Owner Trustee] [Trustee] and the Purchaser against the
Seller with respect to any Repurchase Event.
6.3 SELLER'S ASSIGNMENT OF PURCHASED RECEIVABLES. With respect
to all Receivables repurchased by the Seller pursuant to this Agreement, the
Purchaser (without the need of any further written assignment) shall assign
hereby, without recourse, representation or warranty (other than that it has
good and marketable title to such Receivables), to the Seller all the
Purchaser's right, title and interest in and to such Receivables, and all
security and documents relating thereto. If, however, the Seller reasonably
requests that the Purchaser execute any instruments of transfer or assignment or
take any other action to effect the conveyance, then the Purchaser shall do so.
6.4 TRUST. The Seller acknowledges that the Purchaser will,
pursuant to the [Pooling and Servicing Agreement] [Sale and Servicing
Agreement], sell the Receivables to the Trust and assign its rights under this
Agreement to the [Owner Trustee and the Indenture Trustee] [Trustee] for the
benefit of the holders of the [Securities] [Certificates], and that the
representations and warranties contained in this Agreement and the rights of the
Purchaser under
14
Section 6.2 and the obligations under 6.3 are intended to benefit the Trust
and the holders of the [Securities] [Certificates]. The Seller hereby
consents to such sales and assignments.
6.5 AMENDMENT. This Agreement may be amended from time to time
by a written amendment duly executed and delivered by the Seller and the
Purchaser; PROVIDED, HOWEVER, that any such amendment must be consented to by
the [Holders of Certificates evidencing a majority of the Voting Interests]
[Holders of Notes representing a majority of the Outstanding Amount of the
Controlling Class of Notes, or, in the case of any amendment that does not
adversely affect the Indenture Trustee or the Noteholders, the Holder of the
Controlling Class of Certificates].
6.6 WAIVERS. No failure or delay on the part of the Purchaser
[, the Trustee or the Seller] in exercising any power, right, remedy or
privilege under this Agreement or the Assignment shall operate as a waiver
hereof or thereof, nor shall any single or partial exercise of any such power,
right, remedy or privilege preclude any other or further exercise hereof or
thereof or the exercise of any other power, right, remedy or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.
6.7 NOTICES. All demands, communications and notices pursuant
hereto to either party shall be in writing (including via telecopy) and
addressed or delivered to it at its address (or in the case of telecopy, at its
telecopy number at such address) shown in the opening portion of this Agreement
or at such other address as may be designated by it by notice to the other party
and, if mailed or delivered, shall be deemed given when mailed or delivered, or
transmitted by telecopy.
6.8 [COSTS AND EXPENSES. The Seller agrees to pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and interest
in and to the Receivables and the enforcement of any obligation of the Seller
hereunder.]
6.9 SURVIVAL. The respective agreements, representations,
warranties and other statements by the Seller and the Purchaser set forth in or
made pursuant to this Agreement shall remain in full force and effect and will
survive the Closing.
6.10 HEADINGS AND CROSS-REFERENCES. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in
this Agreement to Section names or numbers are to such Sections of this
Agreement.
6.11 GOVERNING LAW. This Agreement and the Assignment shall
be governed by and construed in accordance with the internal laws of the
[State of New York] and the obligations, rights and remedies of the parties
under this Agreement shall be determined in accordance with such laws.
6.12 COUNTERPARTS. This Agreement may be executed in two
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
15
6.13 SALE. Each party hereto agrees to treat the conveyance
under this Agreement for all purposes (including, without limitation, tax and
financial accounting purposes) as a sale of the Receivables on all of its
relevant books, records, tax returns, financial statements and other applicable
documents. Although the parties hereto intend that the transfer and assignment
contemplated by this Agreement be a sale, in the event such transfer and
assignment is deemed to be other than a sale, the parties intend (a) that all
filings described in this Agreement shall give the Purchaser a first priority
perfected security interest in, to and under the Receivables and other property
conveyed hereunder and all proceeds of any of the foregoing, (b) this Agreement
shall be deemed to be the grant of a security interest from the Seller to the
Purchaser, and (c) the Purchaser shall have all the rights, powers and
privileges of a secured party under the UCC.
6.14 SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall for any reason
whatsoever be held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions and terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement.
6.15 ASSIGNMENT OF AGREEMENT. This Agreement may not be
assigned by the Purchaser or the Seller except as contemplated by this Section
and the [Pooling and Servicing Agreement] [Sale and Servicing Agreement];
PROVIDED, HOWEVER, that simultaneously with the execution and delivery of this
Agreement, the Purchaser shall assign all of its right, title and interest
herein to the Trustee for the benefit of the Certificateholders as provided in
Section [2.01 of the Pooling and Servicing Agreement] [Section ___ of the Sale
and Servicing Agreement], to which the Seller hereby expressly consents. The
Seller agrees to perform its obligations hereunder for the benefit of the Trust
and that the Trustee may enforce the provisions of this Agreement, exercise the
rights of the Purchaser and enforce the obligations of the Seller hereunder
without the consent of the Purchaser.
6.16 THIRD-PARTY BENEFICIARIES. This Agreement will inure to
the benefit of and be binding upon the parties hereto, and the Trustee for the
benefit of the [Securityholders], which shall be considered to be a third-party
beneficiary hereof. Except as otherwise provided in this Agreement, no other
Person will have any right or obligation hereunder.
6.17 MERGER; INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
6.18 NO MERGER OR CONSOLIDATION.
(a) The Seller shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets substantially
as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or
into which the Seller is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Seller
substantially as an entirety shall be organized and existing under
16
the laws of the United States of America, any state thereof or the
District of Columbia, and, if the Seller is not the surviving entity,
shall expressly assume, by an agreement supplemental hereto, executed
and delivered to the Purchaser and the Trustee, in form satisfactory
to the Purchaser and the Trustee, the performance of every covenant
and obligation of the Seller hereunder and shall benefit from all the
rights granted to the Seller hereunder; and
(ii) the Seller shall have delivered to the Purchaser
and the Trustee an Officer's Certificate of the Seller and an Opinion
of Counsel each stating that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this Section and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
(b) The obligations of the Seller hereunder shall not be
assignable nor shall any Person succeed to the obligations of the Seller
hereunder except in each case in accordance with the provisions of Section 6.15
and this Section.
IN WITNESS WHEREOF, the parties hereto hereby have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the [_____] day of [______].
AMERICAN HONDA FINANCE CORPORATION,
as seller
By:
---------------------------------------------
Name:
Title:
AMERICAN HONDA RECEIVABLES CORP.,
as purchaser
By:
---------------------------------------------
Name:
Title:
17
EXHIBIT A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement
dated as of ____________, between the undersigned (the "Seller") and Honda Auto
Receivables Corp. (the "Purchaser") (the "Purchase Agreement"), the undersigned
does hereby sell, assign, transfer and otherwise convey unto the Purchaser,
without recourse, the following:
(i) all right, title and interest of the Seller in
and to the Receivables listed on Schedule A hereto (including all
related Receivable Files) and all monies due thereon or paid thereunder
or in respect thereof after the Cutoff Date;
(ii) the right of the Seller in the security
interests in the Financed Vehicles granted by the Obligors pursuant to
the Receivables and any related property;
(iii) the right of the Seller in any proceeds from
claims on any physical damage, credit life, credit disability or other
insurance policies covering Financed Vehicles or Obligors;
(iv) the right of the Seller in any Dealer
Recourse;
(v) the right of the Seller to realize upon any
property (including the right to receive future Net Liquidation
Proceeds) that shall have secured a Receivable;
(vi) the right of the Seller in rebates of premiums
and other amounts relating to insurance policies and other items
financed under the Receivables in effect as of the Cutoff Date; and
(vii) all proceeds of the foregoing.
The foregoing sale does not constitute and is not intended to
result in any assumption by the Purchaser of any obligation of the undersigned
to the Obligors, insurers or any other person in connection with the
Receivables, Receivable Files, any insurance policies or any agreement or
instrument relating to any of them.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Purchase Agreement and is to be governed by the Purchase
Agreement.
Capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to such terms in the Purchase Agreement.
Exhibit A (Purchase Agreement)
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of the ___ day of ____________.
AMERICAN HONDA FINANCE
CORPORATION
By:
---------------------------------------------
Name:
Title:
ACKNOWLEDGED AND ACCEPTED:
AMERICAN HONDA RECEIVABLES CORP.
By:
---------------------------------------------
Name:
Title:
Exhibit A (Purchase Agreement)
SCHEDULE A
Schedule of Receivables
See schedule attached to the [Pooling and Servicing Agreement][Sale and
Servicing Agreement].
Schedule A (Purchase Agreement)
