EXECUTION COPY
$1,034,670,000
HONDA AUTO RECEIVABLES 2002-4 OWNER TRUST
$256,800,000 1.38000% ASSET BACKED NOTES, CLASS A-1
$295,000,000 1.660% ASSET BACKED NOTES, CLASS A-2
$270,000,000 2.190% ASSET BACKED NOTES, CLASS A-3
$212,870,000 2.700% ASSET BACKED NOTES, CLASS A-4
AMERICAN HONDA RECEIVABLES CORP.
UNDERWRITING AGREEMENT
November 13, 2002
X.X. Xxxxxx Securities Inc.,
as Representative of the Several Underwriters
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. American Honda Receivables Corp., a California
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to cause the Honda Auto Receivables 2002-4 Owner Trust (the
"Trust") to issue and sell $256,800,000 aggregate principal amount of 1.38000%
Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), $295,000,000 aggregate
principal amount of 1.660% Asset Backed Notes, Class A-2 (the "Class A-2
Notes"), $270,000,000 aggregate principal amount of 2.190% Asset Backed Notes,
Class A-3 (the "Class A-3 Notes") and $212,870,000 aggregate principal amount of
2.700% 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 November
1, 2002 (the "Indenture"), between the Trust and Deutsche Bank Trust Company
Americas (the "Indenture Trustee").
Concurrently with the issuance and sale of the Notes as contemplated
herein, the Trust will issue $23,817,953.57 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 November 13, 2002 (the "Trust Agreement"), among the
Company, Citibank, N.A., as owner trustee (the "Owner Trustee") and Wachovia
Trust Company N.A., as Delaware Trustee (the "Delaware Trustee"). The
Certificates are subordinated to the Notes.
The assets of the Trust will include, among other things, a pool of
retail installment sale and conditional sale contracts secured by new and used
Honda and Acura motor vehicles (the "Receivables"), with respect to Actuarial
Receivables, certain
monies due thereunder on or after November 1, 2002 (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 November 1, 2002 (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 November 1, 2002 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. 333-71022),
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
November 13, 2002 the Current Report on Form 8-K with respect to the
Term Sheet dated November 13, 2002 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 issuance of the Notes and the Certificates and to sell
the Notes as contemplated by this
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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 November 1,
2002, and made available to the Representative by the Servicer was
complete and accurate as of the date thereof and includes an
identifying description of the Receivables that are listed on Schedule
A to the Sale and Servicing Agreement.
(q) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement, the
Basic Documents, the Notes
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and the Certificates and any other agreements contemplated herein or
therein shall have been paid or will be paid by the Company at or prior
to the Closing Date to the extent then due.
(r) The consummation of the transactions contemplated by this
Agreement and the Basic Documents, and the fulfillment of the terms
hereof and thereof, will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, or result
in the creation of any lien, charge or encumbrance upon any of the
property or assets of the Company or AHFC pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or similar agreement or instrument under which the
Company or AHFC is a debtor or guarantor.
(s) The Company is not and, after giving effect to the issuance of
the Certificates and the offering and sale of the Notes and the
application of the proceeds thereof as described in the Prospectus,
will not be required to be registered as an "investment company" as
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(t) In connection with the offering of the Notes in the State of
Florida, the Company and AHFC hereby certify that they have complied
with all provisions of Section 517.075 of the Florida Securities and
Investor Protection Act.
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of, in the case of (i) the Class A-1
Notes, 99.87500% of the principal amount thereof; (ii) the Class A-2 Notes,
99.82061% of the principal amount thereof; (iii) the Class A-3 Notes, 99.77425%
of the principal amount thereof; and (iv) the Class A-4 Notes, 99.74204% 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 November 20, 2002, or at such other time not later than seven full business
days thereafter as the Representative and the Company determine, such time being
herein referred to as the "Closing Date", against delivery to the Indenture
Trustee as custodian for DTC of the Global Notes representing all of the Notes.
The Global Notes will be made available for checking at the above office of
Xxxxx Xxxxxxxxxx LLP at least 24 hours prior to the Closing Date.
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The Company will deliver the Certificates to the above office of Xxxxx
Xxxxxxxxxx LLP on the Closing Date. The certificate for the Certificates so to
be delivered will be in definitive form, in authorized denominations and
registered in the name of the Company and will be made available for checking at
the above office of Xxxxx Xxxxxxxxxx LLP at least 24 hours prior to the Closing
Date.
Pursuant to Rule 15c6-1(d) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), the parties hereto have agreed that the Closing
Date will be not later than November 20, 2002, 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 ("the FSMA") 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
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
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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
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
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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 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
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pursuant to the provisions hereof, to the performance by the Company and AHFC of
their respective obligations hereunder and to the following additional
conditions precedent:
(a) The Representative shall have received a letter, dated the
date hereof or the Closing Date, of KPMG LLP, in form and substance
satisfactory to the Representative and counsel for the Underwriters,
confirming that they are independent public accountants within the
meaning of the Act and the applicable Rules and Regulations and stating
in effect that (i) they have performed certain specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Trust, AHFC and the Company) set
forth in the Registration Statement, the Term Sheet and the Prospectus
(and any supplements thereto), agrees with the accounting records of
the Trust, AHFC and the Company, excluding any questions of legal
interpretation, and (ii) they have performed certain specified
procedures with respect to the Receivables.
(b) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representative, shall be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in or affecting particularly the
business, properties, condition (financial or otherwise) or results of
operations of the Company or AHFC which, in the judgment of a majority
in interest of the Underwriters (including the Representative),
materially impairs the investment quality of each Class of the Notes or
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for each Class of the Notes;
(ii) any suspension or limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange; (iii) any banking moratorium declared by
Federal, California or New York authorities; or (iv) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters (including the Representative), the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for each
Class of the Notes.
(d) The Representative shall have received an opinion of Xxxxx
Xxxxxxxxxx LLP, special counsel to the Company and AHFC, dated the
Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that:
(i) the Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
California, with full corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; the Company is duly qualified to do business and is
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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
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
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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;
(xi) assuming that the Receivables are in substantially one
of the forms attached to such opinion, the Receivables are
"chattel paper" as defined in the UCC as in effect in the States
of New York and California; and
-11-
(xii) immediately prior to the sale of Receivables by AHFC to
the Company pursuant to the Receivables Purchase Agreement, AHFC
was the sole owner of all right, title and interest in, to and
under the Receivables and the other property to be transferred by
it to the Company. AHFC has full power and authority to sell and
assign the property to be sold and assigned to the Company
pursuant to the Receivables Purchase Agreement and has duly
authorized such sale and assignment to the Company by all
necessary corporate action.
(e) The Representative shall have received an opinion of Xxxxx
Xxxxxxxxxx LLP, special counsel to the Company and AHFC, dated the
Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that:
(i) the Receivables Purchase Agreement either (A) transfers
an ownership interest in the Receivables and the proceeds thereof
(subject to Section 9-315 of the UCC as in effect in the State of
California (the "California UCC")) from AHFC to the Company or (B)
creates a valid security interest in AHFC's rights in the
Receivables and the proceeds thereof (subject to Section 9-315 of
the California UCC) as security for the obligations of AHFC
thereunder;
(ii) the Sale and Servicing Agreement either (A) transfers an
ownership interest in the Receivables and the proceeds thereof
(subject to Section 9-315 of the California UCC) from the Company
to the Trust or (B) creates a valid security interest in the
Company's rights in the Receivables and the proceeds thereof
(subject to Section 9-315 of the California UCC) as security for
the obligations of the Company thereunder;
(iii) the Indenture creates a valid security interest in the
Trust's rights in the Receivables and the proceeds thereof
(subject to Section 9-315 of the California UCC) as security for
the obligations of the Trust thereunder;
(iv) the financing statement on Form UCC-1 naming AHFC as
debtor is in appropriate form for filing in the relevant filing
office under the California UCC. Upon the filing of such financing
Statement in the relevant filing office, the security interest in
favor of the Company in the Receivables and proceeds thereof will
be perfected, and no other security interest of any other creditor
of AHFC will be equal or prior to such security interest;
(v) the financing statement on Form UCC-1 naming the Company
as debtor is in appropriate form for filing in the relevant filing
office under the California UCC. Upon the filing of such financing
statement in the relevant filing office, the security interest in
favor of the Owner Trustee in the Receivables and proceeds thereof
will be perfected, and no other security interest of any other
creditor of the Company will be equal or prior to such security
interest;
-12-
(vi) the provisions of the Indenture are effective to create
in favor of the Indenture Trustee, a valid security interest (as
such term is defined in Section 1-201 of the California UCC) in
the Receivables and proceeds thereof to secure payment of the
Notes;
(vii) the Trust Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act");
(viii) the Indenture has been duly qualified under the Trust
Indenture Act;
(ix) the Registration Statement was declared effective under
the Act as of the date specified in such opinion, the Prospectus
either was filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the date specified
therein or was included in the Registration Statement, and, to the
best of the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Act, and
the Registration Statement and the Prospectus, and each amendment
or supplement thereof, as of their respective effective or issue
dates, complies as to form in all material respects with the
requirements of the Act and the Rules and Regulations;
(x) each of the Receivables Purchase Agreement, the Control
Agreement, the Sale and Servicing Agreement and the Administration
Agreement constitutes the legal, valid and binding agreement of
the Company and AHFC, in each case as to those documents to which
it is a party, enforceable against the Company and AHFC in
accordance with their terms (subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws affecting creditors' rights generally from time
to time in effect, and subject, as to enforceability, to general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law) except, as
applicable, that such counsel need not express an opinion with
respect to indemnification or contribution provisions which may be
deemed to be in violation of the public policy underlying any law
or regulation;
(xi) assuming due authorization, execution and delivery by
the Indenture Trustee and the Owner Trustee, the Indenture
constitutes the legal, valid and binding agreement of the Trust,
enforceable against the Trust in accordance with its terms
(subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws
affecting creditors' rights generally from time to time in effect,
and subject, as to enforceability, to general principles of
equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law) except, as applicable, that such
counsel need not express an opinion with respect to
indemnification or contribution provisions which may be deemed to
be in violation of the public policy underlying any law or
regulation;
-13-
(xii) neither the Trust nor the Company is and, after giving
effect to the issuance and sale of the Notes and the Certificates
and the application of the proceeds thereof, as described in the
Prospectus, neither the Trust nor the Company will be, an
"investment company" as defined in the Investment Company Act; and
(xiii) this Agreement has been duly authorized, executed and
delivered by the Company and AHFC.
(f) The Representative shall have received an opinion of Xxxxx
Xxxxxxxxxx LLP, tax counsel for the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel
for the Underwriters, to the effect that for federal income tax
purposes (i) the Notes will be characterized as indebtedness of the
Trust that is secured by the Receivables, (ii) the Trust will not be
classified as an association (or publicly traded partnership) taxable
as a corporation and (iii) the statements set forth in the Prospectus
under the headings "SUMMARY--ERISA Considerations", "ERISA
CONSIDERATIONS", "SUMMARY--Tax Status", "MATERIAL INCOME TAX
CONSEQUENCES" and Annex A to the Prospectus, "Global Clearance,
Settlement and Tax Documentation Procedures-Certain U.S. Federal Income
Tax Documentation Requirements", to the extent such statements
constitute matters of law or legal conclusions with respect thereto,
are correct in all material respects.
(g) The Representative shall have received an opinion of Xxxxx
Xxxxxxxxxx LLP, 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 XxXxx Xxxxxx LLP,
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the validity of the Notes, the
Registration Statement, the Prospectus and other related matters as the
Representative may require, and the Company shall have furnished to
such counsel such documents as it may request for the purpose of
enabling it to pass upon such matters.
(i) The Representative shall have received a certificate, dated
the Closing Date, of the Chairman of the Board, the President or any
Vice-President and a principal financial or accounting officer of each
of the Company and AHFC in which such officers, to the best of their
knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company and AHFC in this
Agreement are true and correct in all material respects; the Company
-14-
or AHFC, as applicable, has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date in all material respects; the representations
and warranties of the Company or AHFC, as applicable, in the Basic
Documents are true and correct as of the dates specified in such
agreements in all material respects; the Company or AHFC, as
applicable, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date; no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission; and, subsequent to the date of the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or otherwise), business, properties or results of operations
of the Company or AHFC or their respective businesses except as set
forth in or contemplated by the Prospectus or as described in such
certificate.
(j) The Representative shall have received an opinion of Xxxxxx &
Xxxxxx, LLP, 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 banking corporation validly
existing under the laws of the State of New York;
(ii) the Indenture Trustee has the requisite power and
authority to execute and deliver the Indenture, the Sale and
Servicing Agreement, the Control Agreement and the Administration
Agreement and perform its obligations under each of the
Agreements, and has taken all necessary action to authorize the
execution and delivery of the Indenture, the Sale and Servicing
Agreement, the Control Agreement and the Administration Agreement
and performance by it of each of the Agreements;
(iii) no approval, authorization or other action by or filing
with any governmental authority of the United States of America,
or of the State of New York, having jurisdiction over the banking
or trust powers of the Indenture Trustee is required in connection
with the execution and delivery by the Indenture Trustee of the
Indenture, the Sale and Servicing Agreement, the Control Agreement
and the Administration Agreement;
(iv) the execution and delivery of the Indenture, the Sale
and Servicing Agreement, the Control Agreement and the
Administration Agreement and the performance by the Indenture
Trustee of the respective terms of the Agreements, do not conflict
with or result in a violation of the Articles of Incorporation or
By-Laws of the Indenture Trustee or the applicable federal laws of
the United States of America or of the State of New York having
jurisdiction over the banking or trust powers of the Indenture
Trustee;
(v) each of the Indenture, the Sale and Servicing Agreement,
the Control Agreement and the Administration Agreement has been
duly executed and delivered by the Indenture Trustee and each of
the Agreements constitutes a legal, valid and binding obligation
of the Indenture Trustee, enforceable against the Indenture
Trustee in accordance with its respective terms, except
-15-
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 Xxxxxxx
Xxxxxxxx & Xxxx, counsel to the Owner Trustee, dated the Closing Date
and satisfactory in form and substance to the Representative and
counsel for the Underwriters, to the effect that:
(i) the Owner Trustee has been duly incorporated and is
validly existing as a national banking association 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 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.
-16-
(l) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, counsel to the Delaware Trustee, dated the Closing
Date and satisfactory in form and substance to the Representative and
counsel for the Underwriters, to the effect that:
(i) the Delaware Trustee has been duly formed and is validly
existing as a national banking association under the federal laws
of the United States of America;
(ii) the Delaware Trustee has the power and authority to
execute, deliver and perform its obligations under the Trust
Agreement;
(iii) the Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee and constitutes the legal,
valid and binding obligation of the Delaware Trustee, enforceable
against the Delaware Trustee in accordance with its terms (subject
to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting
creditors' rights generally from time to time in effect, and
subject, as to enforceability, to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) neither the execution, delivery and performance by the
Delaware Trustee of the Trust Agreement, nor the consummation of
any of the transactions by the Delaware Trustee contemplated
thereby, is in violation of the articles of organization or bylaws
of the Delaware Trustee or of any law, governmental rule or
regulation of the State of Delaware or of the United States of
America governing the trust powers of the Delaware Trustee; and
(v) neither the execution, delivery and performance by the
Delaware Trustee of the Trust Agreement, nor the consummation of
any of the transactions by the Delaware Trustee contemplated
thereby, requires the consent or approval of, the withholding of
objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency under
the laws of the State of Delaware or the federal laws of the
United States of America governing the trust powers of the
Delaware Trustee.
(m) The Representative shall have received one or more opinions of
Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the Trust, dated
the Closing Date and satisfactory in form and substance to the
Representative and counsel for the Underwriters, to the effect that:
(i) the Trust has been duly formed and is validly existing
and in good standing as a statutory trust under the Delaware
Statutory Trust Statute, 12 Del. C. (section) 3801, et seq. (the
"Delaware Act");
(ii) the Trust has the power and authority under the Delaware
Act and the Trust Agreement to execute and deliver the Basic
Documents to which the Trust is a party, to issue the Notes and
the Certificates, to grant the Collateral (as
-17-
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;
(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);
-18-
(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 Xxxxx
Xxxxxxxxxx LLP, counsel to the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel
for the Underwriters, (i) with respect to the characterization of the
transfer of the Receivables by AHFC to the Company and (ii) to the
effect that should AHFC become the debtor in a case under Title 11 of
the United States Code (the "Bankruptcy Code") and the Company would
not otherwise properly be a debtor in a case under the Bankruptcy Code,
and if the matter were properly briefed and presented to a court
exercising bankruptcy jurisdiction, the court, exercising reasonable
judgment after full consideration of all relevant factors, should not
order, over the objection of the Certificate holders or the
Noteholders, the substantive consolidation of the assets and
liabilities of the Company with those of AHFC and such opinion shall be
in substantially the form previously discussed with the Representative
and counsel for the Underwriters and in any event satisfactory in form
and in substance to the Representative and counsel for the
Underwriters.
(o) The Representative shall have received evidence satisfactory
to it and its counsel that, on or before the Closing Date, UCC-1
financing statements have been or are being filed in the office of the
Secretary of State of the state of (i) California reflecting the
transfer of the interest of AHFC in the Receivables and the proceeds
thereof to the Company and the transfer of the interest of the Company
in the Receivables and the proceeds thereof to the Trust and (ii)
Delaware reflecting the grant of the security interest by the Trust in
the Receivables and the proceeds thereof to the Indenture Trustee.
-19-
(p) The Representative shall have received an opinion of Xxxxx
Xxxxxxxxxx LLP, special counsel to the Company, dated the Closing Date
and satisfactory in form and substance to the Representative and the
counsel for the Underwriters to the effect that (i) the provisions of
the Indenture are effective to create a valid security interest in
favor of the Indenture Trustee, to secure payment of the Notes, in all
"securities entitlements" (as defined in Section 8-102(a)(17) of the
New York UCC) with respect to "financial assets" (as defined in Section
8-102(a)(9) of the New York UCC) now or hereafter credited to the
Reserve Account (such securities entitlements, the "Securities
Entitlements"), (ii) the provisions of the control agreement for
purposes of Article 8 of the New York UCC are effective to perfect the
security interest of the Indenture Trustee in the Securities
Entitlements and (iii) no security interest of any other creditor of
the Trust will be prior to the security interest of the Indenture
Trustee in such Securities Entitlements.
(q) Each Class of the Notes shall have been rated in the highest
rating category by each of Xxxxx'x, Fitch and Standard & Poor's.
(r) On or prior to the Closing Date, the Certificates shall have
been issued to the Company.
(s) The Representative shall have received from Xxxxx Xxxxxxxxxx
LLP and each other counsel for the Company, a letter dated the Closing
Date to the effect that the Underwriters may rely upon each opinion
rendered by such counsel to either Standard & Poor's, Xxxxx'x or Fitch
in connection with the rating of any Class of the Notes, as if each
such opinion were addressed to the Underwriters.
(t) The Representative shall have received an opinion of Xxxxx
Xxxx, Esq., counsel to the Company and AHFC, dated the Closing Date, to
the effect that, to the best knowledge of such counsel after due
inquiry, there are no actions, proceedings or investigations to which
the Company or AHFC is a party or that are threatened before any court,
administrative agency or other tribunal having jurisdiction over AHFC
or the Company, (i) that are required to be disclosed in the
Registration Statement, (ii) asserting the invalidity of this
Agreement, any Basic Document, the Notes or the Certificates, (iii)
seeking to prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by this Agreement
or the Basic Documents, (iv) which might materially and adversely
affect the performance by the Company or AHFC of its obligations under,
or the validity or enforceability of, this Agreement, any Basic
Document, the Notes or the Certificates or (v) seeking adversely to
affect the federal income tax attributes of the Notes as described in
the Prospectus under the heading "MATERIAL 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.
-20-
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 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,
-21-
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.
(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
-22-
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 obligations to purchase Notes hereunder on the Closing Date and the
aggregate principal amount of Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Notes that the Underwriters are obligated to purchase on
such Closing Date, the Representative may make arrangements satisfactory to the
Company for the purchase of such Notes by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
nondefaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Notes that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate principal amount of
Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes that the Underwriters are obligated to purchase
on such Closing Date and arrangements satisfactory to the Representative and the
Company for the purchase of such Notes by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Company, except as provided in
Section 9. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
-23-
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or AHFC or their respective officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or the Company or AHFC or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Notes. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the Notes
by the Underwriters is not consummated, the Company shall remain responsible for
the expenses to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company, AHFC and the Underwriters pursuant to
Section 7 shall remain in effect. If the purchase of the Notes by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (ii), (iii) or (iv) of Section 6(c), the Company and
AHFC, jointly and severally, will reimburse the Underwriters for all out-of
pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Notes.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or sent by facsimile and
confirmed to the Representative at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Global Structured Finance, (facsimile: (000) 000-0000),
or, if sent to the Company, will be mailed, delivered or sent by facsimile
transmission and confirmed to it at 000 Xxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxx X. Xxxxxxxxx, (facsimile: (000) 000-0000), and if to
AHFC, will be mailed, delivered or sent by facsimile transmission and confirmed
to it at 000 Xxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx X.
Xxxxxxxxx, (facsimile: (000) 000-0000); provided that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telecopied and
confirmed to such Underwriter.
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to the
date which is one year and one day after the payment in full of all securities
issued by the Company or by a trust for which the Company was the depositor
which securities were rated by any nationally recognized statistical rating
organization, it will not institute against, or join any other person in
instituting against, the Company any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any Federal or
state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all such
counterparts shall together constitute one and the same Agreement.
-24-
15. Applicable Law; Submission to Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) Each of the Company and AHFC hereby submits to the
nonexclusive jurisdiction of the Federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions
contemplated hereby.
-25-
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to each of the Company
and AHFC one of the counterparts hereof, whereupon it will become a binding
agreement between the Company, AHFC and the several Underwriters in accordance
with its terms.
Very truly yours,
AMERICAN HONDA
RECEIVABLES CORP.
By: /s/ X. Xxxxxxxxx
--------------------------------
Name: X. Xxxxxxxxx
Title: President
AMERICAN HONDA
FINANCE CORPORATION
By: /s/ X. Xxxxxxxxx
--------------------------------
Name: X. Xxxxxxxxx
Title: President
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written:
X.X. XXXXXX SECURITIES INC., acting on behalf of itself
and as the Representative of the several Underwriters
By: /s/ Xxxx Xxx
--------------------------------
Name: Xxxx Xxx
Title: Vice-President
SCHEDULE A
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Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Underwriter Notes Notes Notes Notes
---------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $97,650,000 $112,100,000 $102,600,000 $80,935,000
---------------------------------------------------------------------------------------------------------------------
X.X. Xxxxxx Securities Inc. 97,650,000 112,100,000 102,600,000 80,935,000
---------------------------------------------------------------------------------------------------------------------
Banc One Capital Markets, Inc. 20,500,000 23,600,000 21,600,000 17,000,000
---------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston Corporation 20,500,000 23,600,000 21,600,000 17,000,000
---------------------------------------------------------------------------------------------------------------------
Deutsche Bank Securities Inc. 20,500,000 23,600,000 21,600,000 17,000,000
---------- ---------- ---------- ----------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Total: $256,800,000 $295,000,000 $270,000,000 $212,870,000
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