EXHIBIT 1.1
$[________________]
HONDA AUTO RECEIVABLES [____-__] OWNER TRUST
$[______________] [____]% ASSET BACKED NOTES, CLASS A-1
$[______________] [____]% ASSET BACKED NOTES, CLASS A-2
$[______________][____]% ASSET BACKED NOTES, CLASS A-3
$[______________][____]% ASSET BACKED NOTES, CLASS A-4
AMERICAN HONDA RECEIVABLES CORP.
UNDERWRITING AGREEMENT
[____ __, ____]
[Addressee/Addressees]
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 [____-__] Owner Trust (the "Trust") to issue
and sell $[______________] aggregate principal amount of [____]% Asset Backed
Notes, Class A-1 (the "Class A-1 Notes"), $[______________] aggregate principal
amount of [____]% Asset Backed Notes, Class A-2 (the "Class A-2 Notes"),
$[______________] aggregate principal amount of [____]% Asset Backed Notes,
Class A-3 (the "Class A-3 Notes") and $[______________] aggregate principal
amount of [____]% 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 [____ __, ____] (the "Indenture"), between the Trust and Citibank, N.A. (the
"Indenture Trustee").
Concurrently with the issuance and sale of the Notes as contemplated
herein, the Trust will issue $[______________] 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 [____ __, ____] (the "Trust Agreement"), between the
Company and U.S. Bank Trust National Association, as owner trustee (the "Owner
Trustee"). The Certificates are subordinated to the Notes.
The assets of the Trust will include, among other things, a pool of retail
installment sale and conditional sale contracts secured by new and used Honda
and Acura motor vehicles (the "Receivables"), with respect to Actuarial
Receivables, certain monies due thereunder on or after [____ __, ____] (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 [____
__, ____] (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 [____ __,
____] 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-[____]), including a
prospectus, relating to the Notes has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective. Such
registration statement, as amended as of the date of the Agreement is
hereinafter referred to as the "Registration Statement," and the prospectus
included in such Registration Statement, as supplemented to reflect the
terms of the Notes as first filed with the Commission after the date of
this Agreement pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Securities Act of 1933, as amended (the "Act"),
including all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus."
(b) On the effective date of the Registration Statement relating to
the Notes, such Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the Commission
promulgated under the Act (the "Rules and Regulations") and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and on the date of this Agreement, the Registration
Statement conforms, and at the time of the filing of the Prospectus in
accordance with Rule 424(b), the Registration Statement and the Prospectus
will conform in all respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents includes or will include any
untrue statement of a material fact or omits or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The preceding sentence does not apply to
statements in or omissions from the Registration Statement or the
Prospectus based upon written information furnished to the Company by any
Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information is that
described as such in Section 7(b).
(c) The Notes are "asset backed securities" within the meaning of, and
satisfy the requirements for use of, Form S-3 under the Act.
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(d) The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations of the Commission
thereunder.
(e) The Company has caused to be filed with the Commission on [____
__, ____]the Current Report on Form 8-K with respect to the Term Sheet
dated [____ __, ____] relating to the Notes (the "Term Sheet").
(f) Each of the Company and AHFC has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
California, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
each of the Company and AHFC is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification.
(g) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be obtained or
made by the Company, AHFC or the Trust for the consummation of the
transactions contemplated by this Agreement and the Basic Documents in
connection with the issuance of the Notes and the Certificates and the sale
by the Company of the Notes, except such as have been obtained and made
under the Act, such as may be required under state securities laws and the
filing of any financing statements required to perfect the Company's, the
Trust's and the Indenture Trustee's interest in the Receivables, which
financing statements will be filed in the appropriate offices prior to the
Closing Date (as such term is defined in Section 3).
(h) Neither the Company nor AHFC is in violation of its Articles of
Incorporation or By-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any agreement
or instrument to which it is a party or by which it or its properties are
bound which could have a material adverse effect on the transactions
contemplated herein or in the Basic Documents. The execution, delivery and
performance of this Agreement and the Basic Documents by the Company and
AHFC, and the issuance of the Notes and the Certificates and the sale by
the Company of the Notes and the compliance by the Company and AHFC with
the terms and provisions hereof and thereof will not, subject to obtaining
any consents or approvals as may be required under the securities or "blue
sky" laws of various jurisdictions, result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any statute,
rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or AHFC or any of
their respective properties, or any agreement or instrument to which the
Company or AHFC is a party or by which the Company or AHFC is bound or to
which any of the properties of the Company or AHFC is subject, or the
Articles of Incorporation or By-laws of the Company and AHFC, and the
Company has full power and authority to authorize the
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issuance of the Notes and the Certificates and to sell the Notes as
contemplated by this Agreement, the Indenture and the Trust Agreement, and
each of the Company and AHFC has full power and authority to enter into
this Agreement and the Basic Documents and to consummate the transactions
contemplated hereby and thereby.
(i) On the Closing Date, the Company will have directed the Owner
Trustee to authenticate and execute the Certificates and, when delivered
and paid for pursuant to the Trust Agreement, the Certificates will have
been duly issued and delivered and will constitute valid and legally
binding obligations of the Trust, entitled to the benefits provided in the
Trust Agreement and enforceable in accordance with their terms.
(j) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company or AHFC or
any of their respective properties that, if determined adversely to the
Company or AHFC, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business or results
of operations of the Company or AHFC, respectively, or would materially and
adversely affect the ability of the Company or AHFC to perform its
obligations under this Agreement or the other Basic Documents to which it
is a party, or which are otherwise material in the context of the issuance
and sale of the Notes or the issuance of the Certificates; and no such
actions, suits or proceedings are threatened or, to the Company's or AHFC's
knowledge, contemplated.
(k) As of the Closing Date, the representations and warranties of the
Company and AHFC contained in the Basic Documents will be true and correct.
(l) This Agreement has been duly authorized, executed and delivered by
each of the Company and AHFC.
(m) The Company has authorized the conveyance of the Receivables to
the Trust, and, as of the Closing Date, the Company has directed the Trust
to execute and issue the Notes and the Certificates and to sell the Notes.
(n) The Company's assignment and delivery of the Receivables to the
Trust as of the Closing Date will vest in the Trust all of the Company's
right, title and interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
(o) The Trust's assignment of the Receivables to the Indenture Trustee
pursuant to the Indenture will vest in the Indenture Trustee, for the
benefit of the Noteholders, a first priority perfected security interest
therein, subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
(p) The computer tape of the Receivables created as of [____ __,
____], and made available to the Representative by the Servicer was
complete and accurate as of the date thereof and includes an identifying
description of the Receivables that are listed on Schedule A to the Sale
and Servicing Agreement.
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(q) Any taxes, fees and other governmental charges in connection with
the execution, delivery and performance of this Agreement, the Basic
Documents, the Notes and the Certificates and any other agreements
contemplated herein or therein shall have been paid or will be paid by the
Company at or prior to the Closing Date to the extent then due.
(r) The consummation of the transactions contemplated by this
Agreement and the Basic Documents, and the fulfillment of the terms hereof
and thereof, will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any of the property or
assets of the Company or AHFC pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement or similar agreement or instrument under which the Company or
AHFC is a debtor or guarantor.
(s) The Company is not and, after giving effect to the issuance of the
Certificates and the offering and sale of the Notes and the application of
the proceeds thereof as described in the Prospectus, will not be required
to be registered as an "investment company" as defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(t) In connection with the offering of the Notes in the State of
Florida, the Company and AHFC hereby certify that they have complied with
all provisions of Section 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, [____]%of the principal amount thereof; (ii) the Class A-2 Notes, [____]%
of the principal amount thereof; (iii) the Class A-3 Notes, [____]% of the
principal amount thereof; and (iv) the Class A-4 Notes, [____]% of the principal
amount thereof, the respective principal amounts of each Class of the Notes set
forth opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price, the Notes
of each Class in the form of one or more permanent global securities in
definitive form (the "Global Notes") deposited with the Indenture Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Notes will be
held only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Notes shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account in New York previously designated to the Representative
by the Company at a bank acceptable to the Representative at the offices of
Xxxxx Xxxxxxxxxx LLP, Los Angeles, California at 10:00 A.M., New York City time,
on [____ __, ____], or at such other time not later than seven full business
days thereafter as the Representative and the Company determine, such time being
herein referred to as the "Closing Date", against delivery to the Indenture
Trustee as custodian for DTC of the Global Notes representing all of the Notes.
The Global Notes will be
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made available for checking at the above office of Xxxxx Xxxxxxxxxx LLP at least
24 hours prior to the Closing Date.
The Company will deliver the Certificates to the above office of Xxxxx
Xxxxxxxxxx LLP on the Closing Date. The certificate for the Certificates so to
be delivered will be in definitive form, in authorized denominations and
registered in the name of the Company and will be made available for checking at
the above office of Xxxxx Xxxxxxxxxx LLP at least 24 hours prior to the Closing
Date.
Pursuant to Rule 15c6-1(d) under the Exchange Act, the parties hereto have
agreed that the Closing Date will be not later than [____ __, ____], 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.
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
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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 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
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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).
(j) To the extent, if any, that the rating provided with respect to
the Notes by Xxxxx'x Investors Service, Inc. ("Moody's"), Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("Standard &
Poor's"), and Fitch Inc. ("Fitch" and, together with Standard & Poor's and
Moody's, the "Rating Agencies") is conditional upon the furnishing of
documents or the taking of any other action by the Company, the Company
shall furnish such documents and take any such other action.
(k) On or before the Closing Date, the Company and AHFC shall annotate
and indicate unambiguously in the computer records of the Company and AHFC
relating to the Receivables to show the Trust's absolute ownership of the
Receivables, and from and after the Closing Date neither the Company nor
AHFC shall take any action inconsistent with the Trust's ownership of such
Receivables, other than as permitted by the Sale and Servicing Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Notes on the Closing Date
will be subject to the
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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 [_________], in form and substance
satisfactory to the Representative and counsel for the Underwriters,
confirming that they are independent public accountants within the meaning
of the Act and the applicable Rules and Regulations and stating in effect
that (i) they have performed certain specified procedures as a result of
which they determined that certain information of an accounting, financial
or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Trust, AHFC and the Company) set forth in the Registration Statement, the
Term Sheet and the Prospectus (and any supplements thereto), agrees with
the accounting records of the Trust, AHFC and the Company, excluding any
questions of legal interpretation, and (ii) they have performed certain
specified procedures with respect to the Receivables.
(b) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representative, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in or affecting particularly the business,
properties, condition (financial or otherwise) or results of operations of
the Company or AHFC which, in the judgment of a majority in interest of the
Underwriters (including the Representative), materially impairs the
investment quality of each Class of the Notes or makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for each Class of the Notes; (ii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange;
(iii) any banking moratorium declared by Federal, California or New York
authorities; or (iv) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters (including the
Representative), the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for each Class
of the Notes.
(d) The Representative shall have received an opinion of [__________],
special counsel to the Company and AHFC, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters, to the effect that:
(i) the Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
California, with full
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corporate power and authority to own its properties and conduct its
business as described in the Prospectus; the Company is duly qualified
to do business and is in good standing in each jurisdiction in which
its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified and in good standing would not have a material adverse
effect on its obligations under the Basic Documents;
(ii) AHFC has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
California, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; AHFC is duly
qualified to do business and is in good standing in each jurisdiction
in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to be
so qualified and in good standing would not have a material adverse
effect on its obligations under the Basic Documents;
(iii) each of the direction by the Company to the Indenture
Trustee to authenticate the Notes and the direction by the Company to
the Owner Trustee to execute the Notes has been duly authorized by the
Company and, when the Notes have been duly executed and delivered by
the Owner Trustee and, when authenticated by the Indenture Trustee in
accordance with the terms of the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement, will be duly and
validly issued and outstanding and will be entitled to the benefits of
the Indenture;
(iv) the direction by the Company to the Owner Trustee to
authenticate and execute the Certificates has been duly authorized by
the Company;
(v) each Basic Document to which the Company or AHFC is a party
has been duly authorized, executed and delivered by the Company and
AHFC, respectively;
(vi) no consent, approval, authorization or order of, or filing
with any governmental agency or body or any court is required for the
execution, delivery and performance by the Company of this Agreement
and the Basic Documents to which it is a party, for the execution,
delivery and performance by AHFC of the Basic Documents to which it is
a party or for the consummation of the transactions contemplated by
this Agreement or the Basic Documents, except for (A) such as have
been obtained and made under the Act, (B) such as may be required
under state securities laws and (C) such authorizations, approvals or
consents specified in such opinion as are in full force and effect as
of the Effective Date and the Closing Date;
(vii) the execution, delivery and performance of this Agreement
and the Basic Documents by the Company and the execution, delivery and
performance of the Basic Documents by AHFC will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, or result in the
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creation or imposition of any lien, charge or encumbrance upon any of
the property or assets of AHFC or the Company pursuant to the terms of
the Certificate of Incorporation or the By-Laws of AHFC or the Company
or, to the best of such counsel's knowledge and information, any
statute, rule, regulation or order of any governmental agency or body,
or any court having jurisdiction over AHFC or the Company or their
respective properties, or any agreement or instrument known to such
counsel after due investigation to which AHFC or the Company is a
party or by which AHFC or the Company or any of their respective
properties is bound;
(viii) such counsel has no reason to believe that the
Registration Statement or any amendment thereto, as of its effective
date or as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any amendment or supplement
thereto, as of its issue date or as of such Closing Date, contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; the Registration Statement and
the Prospectus complies in all material respects with the requirements
of the Act and the rules and regulations promulgated thereunder; and
such counsel does not know of any legal or governmental proceedings
required to be described in the Registration Statement or the
Prospectus which are not described as required or of any contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required;
it being understood that such counsel need express no opinion as to
the financial statements or other financial, numerical, statistical
and quantitative information contained in the Registration Statement
or the Prospectus;
(ix) the statements in the Registration Statement under the
heading "CERTAIN LEGAL ASPECTS OF THE RECEIVABLES", to the extent they
constitute statements of matters of law or legal conclusions with
respect thereto, are correct in all material respects;
(x) such counsel is familiar with AHFC's standard operating
procedures relating to AHFC's acquisition of a perfected first
priority security interest in the vehicles financed by AHFC pursuant
to retail installment sale contracts in the ordinary course of AHFC's
business; assuming that AHFC's standard procedures are followed with
respect to the perfection of security interests in the Financed
Vehicles (and such counsel has no reason to believe that AHFC has not
or will not continue to follow its standard procedures in connection
with the perfection of security interests in the Financed Vehicles),
AHFC has acquired or will acquire a perfected first priority security
interest in the Financed Vehicles;
-11-
(xi) assuming that the Receivables are in substantially one of
the forms attached to such opinion, the Receivables are "chattel
paper" as defined in the UCC as in effect in the States of New York
and California; and
(xii) immediately prior to the sale of Receivables by AHFC to the
Company pursuant to the Receivables Purchase Agreement, AHFC was the
sole owner of all right, title and interest in, to and under the
Receivables and the other property to be transferred by it to the
Company. AHFC has full power and authority to sell and assign the
property to be sold and assigned to the Company pursuant to the
Receivables Purchase Agreement and has duly authorized such sale and
assignment to the Company by all necessary corporate action.
(e) The Representative shall have received an opinion of
[___________], special counsel to the Company and AHFC, dated the Closing
Date and satisfactory in form and substance to the Representative and
counsel for the Underwriters, to the effect that:
(i) the Receivables Purchase Agreement either (A) transfers an
ownership interest in the Receivables and the proceeds thereof
(subject to Section 9-315 of the UCC as in effect in the State of
California (the "California UCC")) from AHFC to the Company or (B)
creates a valid security interest in AHFC's rights in the Receivables
and the proceeds thereof (subject to Section 9-315 of the California
UCC) as security for the obligations of AHFC thereunder;
(ii) the Sale and Servicing Agreement either (A) transfers an
ownership interest in the Receivables and the proceeds thereof
(subject to Section 9-315 of the California UCC) from the Company to
the Trust or (B) creates a valid security interest in the Company's
rights in the Receivables and the proceeds thereof (subject to Section
9-315 of the California UCC) as security for the obligations of the
Company thereunder;
(iii) the Indenture creates a valid security interest in the
Trust's rights in the Receivables and the proceeds thereof (subject to
Section 9-315 of the California UCC) as security for the obligations
of the Trust thereunder;
(iv) the financing statement on Form UCC-1 naming AHFC as debtor
is in appropriate form for filing in the relevant filing office under
the California UCC. Upon the filing of such financing Statement in the
relevant filing office, the security interest in favor of the Company
in the Receivables and proceeds thereof will be perfected, and no
other security interest of any other creditor of AHFC will be equal or
prior to such security interest;
(v) the financing statement on Form UCC-1 naming the Company as
debtor is in appropriate form for filing in the relevant filing office
under the California UCC. Upon the filing of such financing statement
in the relevant filing office, the security interest in favor of the
Owner Trustee in the Receivables and
-12-
proceeds thereof will be perfected, and no other security interest of
any other creditor of the Company will be equal or prior to such
security interest;
(vi) the provisions of the Indenture are effective to create in
favor of the Indenture Trustee, a valid security interest (as such
term is defined in Section 1-201 of the California UCC) in the
Receivables and proceeds thereof to secure payment of the Notes;
(vii) the Trust Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act");
(viii) the Indenture has been duly qualified under the Trust
Indenture Act;
(ix) the Registration Statement was declared effective under the
Act as of the date specified in such opinion, the Prospectus either
was filed with the Commission pursuant to the subparagraph of Rule
424(b) specified in such opinion on the date specified therein or was
included in the Registration Statement, and, to the best of the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereof, as of their
respective effective or issue dates, complies as to form in all
material respects with the requirements of the Act and the Rules and
Regulations;
(x) each of the Receivables Purchase Agreement, the Control
Agreement, the Sale and Servicing Agreement and the Administration
Agreement constitutes the legal, valid and binding agreement of the
Company and AHFC, in each case as to those documents to which it is a
party, enforceable against the Company and AHFC in accordance with
their terms (subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws affecting
creditors' rights generally from time to time in effect, and subject,
as to enforceability, to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or
at law) except, as applicable, that such counsel need not express an
opinion with respect to indemnification or contribution provisions
which may be deemed to be in violation of the public policy underlying
any law or regulation;
(xi) assuming due authorization, execution and delivery by the
Indenture Trustee and the Owner Trustee, the Indenture constitutes the
legal, valid and binding agreement of the Trust, enforceable against
the Trust in accordance with its terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting creditors' rights
generally from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law)
except, as applicable, that such counsel need not
-13-
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;
(xii) neither the Trust nor the Company is and, after giving
effect to the issuance and sale of the Notes and the Certificates and
the application of the proceeds thereof, as described in the
Prospectus, neither the Trust nor the Company will be, an "investment
company" as defined in the Investment Company Act; and
(xiii) this Agreement has been duly authorized, executed and
delivered by the Company and AHFC.
(f) The Representative shall have received an opinion of
[____________], tax counsel for the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters, to the effect that for federal income tax purposes (i)
the Notes will be characterized as indebtedness, (ii) the Trust will not be
classified as an association (or publicly traded partnership) taxable as a
corporation and (iii) the statements set forth in the Prospectus under the
headings "SUMMARY--ERISA Considerations", "ERISA CONSIDERATIONS",
"SUMMARY--Tax Status", "MATERIAL INCOME TAX CONSEQUENCES" and Annex A to
the Prospectus, "Global Clearance, Settlement and Tax Documentation
Procedures-Certain U.S. Federal Income Tax Documentation Requirements", to
the extent such statements constitute matters of law or legal conclusions
with respect thereto, are correct in all material respects.
(g) The Representative shall have received an opinion of
[____________], tax counsel for the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters, to the effect that for California state franchise and
California state income tax purposes (i) the Notes will be characterized as
debt and (ii) the Trust will not be classified as an association (or
publicly traded partnership) taxable as a corporation.
(h) The Representative shall have received from [____________],
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the validity of the Notes, the Registration
Statement, the Prospectus and other related matters as the Representative
may require, and the Company shall have furnished to such counsel such
documents as it may request for the purpose of enabling it to pass upon
such matters.
(i) The Representative shall have received a certificate, dated the
Closing Date, of the Chairman of the Board, the President or any
Vice-President and a principal financial or accounting officer of each of
the Company and AHFC in which such officers, to the best of their knowledge
after reasonable investigation, shall state that: the representations and
warranties of the Company and AHFC in this Agreement are true and correct
in all material respects; the Company or AHFC, as applicable, has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied
-14-
hereunder at or prior to the Closing Date in all material respects; the
representations and warranties of the Company or AHFC, as applicable, in
the Basic Documents are true and correct as of the dates specified in such
agreements in all material respects; the Company or AHFC, as applicable,
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied under such agreements at or prior to the
Closing Date; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission; and, subsequent
to the date of the Prospectus, there has been no material adverse change,
nor any development or event involving a prospective material adverse
change, in the condition (financial or otherwise), business, properties or
results of operations of the Company or AHFC or their respective businesses
except as set forth in or contemplated by the Prospectus or as described in
such certificate.
(j) The Representative shall have received an opinion of
[____________], counsel to the Indenture Trustee, dated the Closing Date
and satisfactory in form and substance to the Representative and counsel
for the Underwriters, substantially to the effect that:
(i) the Indenture Trustee is a national banking association
validly existing under the laws of the United States of America;
(ii) the Indenture Trustee has the requisite power and authority
to execute and deliver the Indenture, the Sale and Servicing
Agreement, the Control Agreement and the Administration Agreement and
perform its obligations under each of the Agreements, and has taken
all necessary action to authorize the execution and delivery of the
Indenture, the Sale and Servicing Agreement, the Control Agreement and
the Administration Agreement and performance by it of each of the
Agreements;
(iii) no approval, authorization or other action by or filing
with any governmental authority of the United States of America, or of
the State of New York, having jurisdiction over the banking or trust
powers of the Indenture Trustee is required in connection with the
execution and delivery by the Indenture Trustee of the Indenture, the
Sale and Servicing Agreement, the Control Agreement and the
Administration Agreement;
(iv) the execution and delivery of the Indenture, the Sale and
Servicing Agreement, the Control Agreement and the Administration
Agreement and the performance by the Indenture Trustee of the
respective terms of the Agreements, do not conflict with or result in
a violation of the Articles of Incorporation or By-Laws of the
Indenture Trustee or the applicable federal laws of the United States
of America or of the State of New York having jurisdiction over the
banking or trust powers of the Indenture Trustee;
(v) each of the Indenture, the Sale and Servicing Agreement, the
Control Agreement and the Administration Agreement has been duly
executed and delivered by the Indenture Trustee and each of the
Agreements constitutes a
-15-
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.
(k) The Representative shall have received an opinion of
[____________], counsel to the Owner Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters, to the effect that:
(i) the Owner Trustee is a national banking association validly
existing under the laws of the United States of America;
(ii) the Owner Trustee has the power and authority to execute,
deliver and perform its obligations under the Trust Agreement;
(iii) the Trust Agreement has been duly authorized, executed and
delivered by the Owner Trustee and constitutes the legal, valid and
binding obligation of the Owner Trustee, enforceable against the Owner
Trustee in accordance with its terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting creditors' rights
generally from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at
law);
(iv) the execution and delivery by the Owner Trustee of the Trust
Agreement and the performance by the Owner Trustee of its obligations
thereunder do not conflict with, result in a breach or violation of,
or constitute a default under the Articles of Association or By-laws
of the Owner Trustee or of any law, governmental rule or regulation of
the State of Delaware or of the United States of America governing the
banking or 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 banking or trust powers of the Owner Trustee, other than those
consents, approvals or authorizations as have
-16-
been obtained and the filing of the Certificate of Trust with the
Secretary of State of the State of Delaware, which have been duly
filed.
(l) [Reserved]
(m) The Representative shall have received one or more opinions of
[____________], special Delaware counsel to the Trust, dated the Closing
Date and satisfactory in form and substance to the Representative and
counsel for the Underwriters, to the effect that:
(i) the Trust has been duly formed and is validly existing and in
good standing as a statutory trust under the Delaware Statutory Trust
Statute, 12 Del. C.ss.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, 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;
-17-
(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;
(xi) under 3805(c) of the Delaware Act, except to the extent
otherwise provided in the Trust Agreement, a Certificateholder
(including the Company in its capacity as Depositor under the Trust
Agreement) has no interest in specific Receivables;
(xii) under 3808(a) and (b) of the Delaware Act, the Trust may
not be terminated or revoked by any Certificateholder, and the
dissolution, termination or bankruptcy of any Certificateholder shall
not result in the termination or dissolution of the Trust, except to
the extent otherwise provided in the Trust Agreement.
(n) The Representative shall have received an opinion of
[____________], counsel to the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters, (i) with respect to the characterization of the transfer
of the Receivables by AHFC to the Company and (ii) to the effect that
should AHFC become the debtor in a case under Title 11 of the United States
Code (the "Bankruptcy Code") and the Company would not otherwise properly
be
-18-
a debtor in a case under the Bankruptcy Code, and if the matter were
properly briefed and presented to a court exercising bankruptcy
jurisdiction, the court, exercising reasonable judgment after full
consideration of all relevant factors, should not order, over the objection
of the Certificate holders or the Noteholders, the substantive
consolidation of the assets and liabilities of the Company with those of
AHFC and such opinion shall be in substantially the form previously
discussed with the Representative and counsel for the Underwriters and in
any event satisfactory in form and in substance to the Representative and
counsel for the Underwriters.
(o) The Representative shall have received evidence satisfactory to it
and its counsel that, on or before the Closing Date, UCC-1 financing
statements have been or are being filed in the office of the Secretary of
State of the state of (i) California reflecting the transfer of the
interest of AHFC in the Receivables and the proceeds thereof to the Company
and the transfer of the interest of the Company in the Receivables and the
proceeds thereof to the Trust and (ii) Delaware reflecting the grant of the
security interest by the Trust in the Receivables and the proceeds thereof
to the Indenture Trustee.
(p) The Representative shall have received an opinion of
[____________], special counsel to the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and the counsel
for the Underwriters to the effect that (i) the provisions of the Indenture
are effective to create a valid security interest in favor of the Indenture
Trustee, to secure payment of the Notes, in all "securities entitlements"
(as defined in Section 8-102(a)(17) of the New York UCC) with respect to
"financial assets" (as defined in Section 8-102(a)(9) of the New York UCC)
now or hereafter credited to the Reserve Account (such securities
entitlements, the "Securities Entitlements"), (ii) the provisions of the
control agreement for purposes of Article 8 of the New York UCC are
effective to perfect the security interest of the Indenture Trustee in the
Securities Entitlements and (iii) no security interest of any other
creditor of the Trust will be prior to the security interest of the
Indenture Trustee in such Securities Entitlements.
(q) Each Class of the Notes shall have been rated in the highest
rating category by each of Xxxxx'x, Fitch and Standard & Poor's.
(r) On or prior to the Closing Date, the Certificates shall have been
issued to the Company.
(s) The Representative shall have received from Xxxxx Xxxxxxxxxx LLP
and each other counsel for the Company, a letter dated the Closing Date to
the effect that the Underwriters may rely upon each opinion rendered by
such counsel to either Standard & Poor's, Xxxxx'x or Fitch in connection
with the rating of any Class of the Notes, as if each such opinion were
addressed to the Underwriters.
(t) The Representative shall have received an opinion of
[____________], 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
-19-
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".
(u) As of the Closing Date, the representations and warranties of the
Company and AHFC contained in the Basic Documents will be true and correct.
The Company will furnish the Representative with such conformed copies of
such opinions, certificates, letters and documents as the Representative
reasonably requests.
The Representative may, in its sole discretion, waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Company and AHFC will, jointly and severally, indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such underwriter may become
subject, under the Act, or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained or incorporated in the Registration Statement, 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
-20-
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 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.
-21-
(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 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
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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 [____]% 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 [____]% 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.
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 [____________], Attention: Global Structured
Finance, (facsimile: [____________]), 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: [____________],
(facsimile: [____________]), 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: [____________], (facsimile: [____________]);
provided that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telecopied and confirmed to such Underwriter.
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11. No Bankruptcy Petition. Each Underwriter agrees that, prior to the date
which is one year and one day after the payment in full of all securities issued
by the Company or by a trust for which the Company was the depositor which
securities were rated by any nationally recognized statistical rating
organization, it will not institute against, or join any other person in
instituting against, the Company any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any Federal or
state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 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.
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.
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If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to each of the Company
and AHFC one of the counterparts hereof, whereupon it will become a binding
agreement between the Company, AHFC and the several Underwriters in accordance
with its terms.
Very truly yours,
AMERICAN HONDA
RECEIVABLES CORP.
By: _______________________
Name:
Title:
AMERICAN HONDA
FINANCE CORPORATION
By: _______________________
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above written:
[________________________]., acting on behalf of itself
and as the Representative of the several Underwriters
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
SCHEDULE A
<TABLE>
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
----------- ----- ----- ----- -----
[____________________] $[_____________] $[__________] $[__________] $[__________]
[____________________] $[__________] $[__________] $[__________] $[__________]
[____________________] $[__________] $[__________] $[__________] $[__________]
[____________________] $[__________] $[__________] $[__________] $[__________]
[____________________]
[____________________] $[__________] $[__________] $[__________] $[__________]
[____________________] $[__________] $[__________] $[__________] $[__________]
Total: $[__________] $[__________] $[__________] $[__________]
</TABLE>
