EXECUTION COPY
$1,535,000,000
HONDA AUTO RECEIVABLES 2004-1 OWNER TRUST
$347,000,000 1.13875% ASSET BACKED NOTES, CLASS A-1
$456,000,000 1.68000% ASSET BACKED NOTES, CLASS A-2
$431,000,000 2.40000% ASSET BACKED NOTES, CLASS A-3
$301,000,000 3.06000% ASSET BACKED NOTES, CLASS A-4
AMERICAN HONDA RECEIVABLES CORP.
UNDERWRITING AGREEMENT
April 15, 2004
X.X. Xxxxxx Securities Inc.,
as Representative of the Several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. American Honda Receivables Corp., a California
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to cause the Honda Auto Receivables 2004-1 Owner Trust (the
"Trust") to issue and sell $347,000,000 aggregate principal amount of 1.13875%
Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), $456,000,000 aggregate
principal amount of 1.68000% Asset Backed Notes, Class A-2 (the "Class A-2
Notes") $431,000,000 aggregate principal amount of 2.40000% Asset Backed Notes,
Class A-3 (the "Class A-3 Notes") and $301,000,000 aggregate principal amount of
3.06000% 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 April 1,
2004 (the "Indenture"), between the Trust and JPMorgan Chase Bank (the
"Indenture Trustee").
Concurrently with the issuance and sale of the Notes as contemplated
herein, the Trust will issue $47,514,648.12 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 April 20, 2004 (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 April 1, 2004 (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 April 1, 2004 (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 April 1, 2004 between AHFC and the Company (the "Receivables
Purchase Agreement"), as the case may be. As used herein, "Basic Documents"
shall have the meaning specified in the Sale and Servicing Agreement. The
Company hereby agrees with the several Underwriters named in Schedule A hereto
(collectively, the "Underwriters") as follows:
2. Representations and Warranties of the Company and AHFC. The Company
and AHFC, jointly and severally, represent and warrant to, and agree with, the
several Underwriters that:
(a) A registration statement on Form S-3 (No. 333-104875),
including a prospectus, relating to the Notes has been filed with the
Securities and Exchange Commission (the "Commission") and has become
effective. Such registration statement, as amended as of the date of the
Agreement is hereinafter referred to as the "Registration Statement," and
the prospectus included in such Registration Statement, as supplemented to
reflect the terms of the Notes as first filed with the Commission after the
date of this Agreement pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Securities Act of 1933, as amended (the "Act"),
including all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus."
(b) On the effective date of the Registration Statement relating
to the Notes, such Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the Commission
promulgated under the Act (the "Rules and Regulations") and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and on the date of this Agreement, the Registration
Statement conforms, and at the time of the filing of the Prospectus in
accordance with Rule 424(b), the Registration Statement and the Prospectus
will conform in all respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents includes or will include any
untrue statement of a material fact or omits or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The preceding sentence does not apply to
statements in or omissions from the Registration Statement or the
Prospectus based upon written information furnished to the Company by any
Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information is that
described as such in Section 7(b).
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(c) The Notes are "asset backed securities" within the meaning
of, and satisfy the requirements for use of, Form S-3 under the Act.
(d) The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations of the Commission
thereunder.
(e) The Company will cause to be filed with the Commission on
April 14, 2004 the Current Report on Form 8-K with respect to the Term
Sheet dated April 14, 2004 relating to the Notes (the "Term Sheet").
(f) Each of the Company and AHFC has been duly incorporated and
is an existing corporation in good standing under the laws of the State of
California, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
each of the Company and AHFC is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification.
(g) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company, AHFC or the Trust for the consummation of
the transactions contemplated by this Agreement and the Basic Documents in
connection with the issuance of the Notes and the Certificates and the sale
by the Company of the Notes, except such as have been obtained and made
under the Act, such as may be required under state securities laws and the
filing of any financing statements required to perfect the Company's, the
Trust's and the Indenture Trustee's interest in the Receivables, which
financing statements will be filed in the appropriate offices prior to the
Closing Date (as such term is defined in Section 3).
(h) Neither the Company nor AHFC is in violation of its Articles
of Incorporation or By-laws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or its
properties are bound which could have a material adverse effect on the
transactions contemplated herein or in the Basic Documents. The execution,
delivery and performance of this Agreement and the Basic Documents by the
Company and AHFC, and the issuance of the Notes and the Certificates and
the sale by the Company of the Notes and the compliance by the Company and
AHFC with the terms and provisions hereof and thereof will not, subject to
obtaining any consents or approvals as may be required under the securities
or "blue sky" laws of various jurisdictions, result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the
Company or AHFC or any of their
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respective properties, or any agreement or instrument to which the Company
or AHFC is a party or by which the Company or AHFC is bound or to which any
of the properties of the Company or AHFC is subject, or the Articles of
Incorporation or By-laws of the Company and AHFC, and the Company has full
power and authority to authorize the issuance of the Notes and the
Certificates and to sell the Notes as contemplated by this Agreement, the
Indenture and the Trust Agreement, and each of the Company and AHFC has
full power and authority to enter into this Agreement and the Basic
Documents and to consummate the transactions contemplated hereby and
thereby.
(i) On the Closing Date, the Company will have directed the Owner
Trustee to authenticate and execute the Certificates and, when delivered
and paid for pursuant to the Trust Agreement, the Certificates will have
been duly issued and delivered and will constitute valid and legally
binding obligations of the Trust, entitled to the benefits provided in the
Trust Agreement and enforceable in accordance with their terms.
(j) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company or AHFC or
any of their respective properties that, if determined adversely to the
Company or AHFC, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business or results
of operations of the Company or AHFC, respectively, or would materially and
adversely affect the ability of the Company or AHFC to perform its
obligations under this Agreement or the other Basic Documents to which it
is a party, or which are otherwise material in the context of the issuance
and sale of the Notes or the issuance of the Certificates; and no such
actions, suits or proceedings are threatened or, to the Company's or AHFC's
knowledge, contemplated.
(k) As of the Closing Date, the representations and warranties of
the Company and AHFC contained in the Basic Documents will be true and
correct.
(l) This Agreement has been duly authorized, executed and
delivered by each of the Company and AHFC.
(m) The Company has authorized the conveyance of the Receivables
to the Trust, and, as of the Closing Date, the Company has directed the
Trust to execute and issue the Notes and the Certificates and to sell the
Notes.
(n) The Company's assignment and delivery of the Receivables to
the Trust as of the Closing Date will vest in the Trust all of the
Company's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(o) The Trust's assignment of the Receivables to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture Trustee, for
the benefit of the
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Noteholders, a first priority perfected security interest therein, subject
to no prior lien, mortgage, security interest, pledge, adverse claim,
charge or other encumbrance.
(p) The computer tape of the Receivables created as of April 1,
2004, and made available to the Representative by the Servicer was complete
and accurate as of the date thereof and includes an identifying description
of the Receivables that are listed on Schedule A to the Sale and Servicing
Agreement.
(q) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement, the Basic
Documents, the Notes and the Certificates and any other agreements
contemplated herein or therein shall have been paid or will be paid by the
Company at or prior to the Closing Date to the extent then due.
(r) The consummation of the transactions contemplated by this
Agreement and the Basic Documents, and the fulfillment of the terms hereof
and thereof, will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any of the property or
assets of the Company or AHFC pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement or similar agreement or instrument under which the Company or
AHFC is a debtor or guarantor.
(s) The Company is not and, after giving effect to the issuance
of the Certificates and the offering and sale of the Notes and the
application of the proceeds thereof as described in the Prospectus, will
not be required to be registered as an "investment company" as defined in
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(t) In connection with the offering of the Notes in the State of
Florida, the Company and AHFC hereby certify that they have complied with
all provisions of Section 517.075 of the Florida Securities and Investor
Protection Act.
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of, in the case of (i) the Class A-1
Notes, 99.87500% of the principal amount thereof; (ii) the Class A-2 Notes,
99.81699% of the principal amount thereof; (iii) the Class A-3 Notes, 99.76461%
of the principal amount thereof; and (iv) the Class A-4 Notes, 99.72558% of the
principal amount thereof, the respective principal amounts of each Class of the
Notes set forth opposite the names of the Underwriters in Schedule A hereto.
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The Company will deliver against payment of the purchase price, the Notes
of each Class in the form of one or more permanent global securities in
definitive form (the "Global Notes") deposited with the Indenture Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Notes will be
held only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Notes shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account in New York previously designated to the Representative
by the Company at a bank acceptable to the Representative at the offices of
XxXxx Xxxxxx LLP, New York, New York at 10:00 A.M., New York City time, on April
20, 2004, or at such other time not later than seven full business days
thereafter as the Representative and the Company determine, such time being
herein referred to as the "Closing Date", against delivery to the Indenture
Trustee as custodian for DTC of the Global Notes representing all of the Notes.
The Global Notes will be made available for checking at the above office of
XxXxx Xxxxxx LLP at least 24 hours prior to the Closing Date.
The Company will deliver the Certificates to the above office of XxXxx
Xxxxxx LLP on the Closing Date. The certificate for the Certificates so to be
delivered will be in definitive form, in authorized denominations and registered
in the name of the Company and will be made available for checking at the above
office of XxXxx Xxxxxx LLP at least 24 hours prior to the Closing Date.
Pursuant to Rule 15c6-1(d) under the Exchange Act, the parties hereto have
agreed that the Closing Date will be not later than April 20, 2004, unless
otherwise agreed to as described above.
4. Offering by Underwriters. It is understood that, the several
Underwriters propose to offer the Notes for sale to the public as set forth in
the Prospectus, and each Underwriter represents, warrants and covenants,
severally and not jointly, to the Company and AHFC that: (i) it has not offered
or sold and, prior to the expiry of the period of six months from the Closing
Date, will not offer or sell any Notes to persons in the United Kingdom except
to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or who it is reasonable to expect will acquire, hold, manage or
dispose of investments (as principal or agent) for the purposes of their
businesses, or otherwise in circumstances that have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995, as amended, (ii) it has complied
and will comply with all applicable provisions of the Financial Services and
Markets Act 2000 with respect to anything done by it in relation to the Notes
in, from or otherwise involving the United Kingdom, (iii) it is a person of a
kind described in Articles 19 or 49 of the Financial Services and Markets Act
2000 (Financial Promotion) Order 2001, as amended (the "Financial Promotion
Order") and (iv) it has only communicated or caused to be communicated, and will
only communicate or cause to be communicated, in the United Kingdom any document
received by it in connection with the issue of the Notes to a person who is of a
kind described in Articles 19 or 49 of the Financial Promotion Order or who is a
person to whom such document may otherwise lawfully be communicated.
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5. Certain Agreements of the Company. The Company agrees with the
several Underwriters:
(a) The Company will file the Prospectus, properly completed,
with the Commission pursuant to and in accordance with subparagraph (2)
(or, if applicable and if consented to by the Representative, subparagraph
(5)) of Rule 424(b) no later than the second business day following the
date it is first used. The Company will advise the Representative promptly
of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Representative promptly, in
writing, of any proposal to amend or supplement the Registration Statement
or the Prospectus and will not effect such amendment or supplementation
without the Representative's reasonable consent; and the Company will also
advise the Representative promptly of any amendment or supplementation of
the Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company will promptly notify the
Representative of such event and will promptly prepare and file with the
Commission (subject to the Representative's prior review pursuant to
Section 5(b)), at its own expense, an amendment or supplement which will
correct such statement or omission, or an amendment which will effect such
compliance. Neither the Representative's consent to, nor the Underwriters
delivery of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 6.
(d) The Company will cause the Trust to make generally available
to Noteholders, as soon as practicable, but no later than sixteen months
after the date hereof, an earnings statement of the Trust covering a period
of at least twelve consecutive months beginning after the later of (i) the
effective date of the registration statement relating to the Notes and (ii)
the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of this
Agreement and, in each case, satisfying the provisions of Section 11(a) of
the Act (including Rule 158 promulgated thereunder).
(e) The Company will furnish to the Underwriters copies of the
Prospectus, the Registration Statement and all amendments and supplements
to such documents, in each case as soon as available and in such quantities
as the Representative reasonably requests. The Prospectus shall be
furnished on or prior to 3:00 P.M., New
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York time, on the business day following the execution and delivery of this
Agreement. All other such documents shall be so furnished as soon as
available. The Company will pay the expenses of printing and distributing
to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Notes
for offering and sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representative may
reasonably designate and will continue such qualifications in effect so
long as required for the distribution of the Notes; provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation to do business or to file a general consent to service
of process in any such jurisdiction.
(g) For a period from the date of this Agreement until the
retirement of the Notes (i) the Company will furnish to the Representative
and, upon request, to each of the other Underwriters, copies of each
certificate and the annual statements of compliance delivered to the
Indenture Trustee pursuant to Section 3.09 of the Indenture and Sections
3.10 and 3.11 of the Sale and Servicing Agreement and the annual
independent certified public accountant's servicing reports furnished to
the Indenture Trustee pursuant to Section 3.12 of the Sale and Servicing
Agreement, by first-class mail as soon as practicable after such statements
and reports are furnished to the Indenture Trustee, and (ii) such other
forms of periodic certificates or reports as may be delivered to the
Indenture Trustee, the Owner Trustee or the Noteholders under the
Indenture, the Sale and Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Company will furnish
to the Representative by first-class mail as soon as practicable, (i) all
documents distributed, or caused to be distributed, by the Company to the
Noteholders, (ii) all documents filed or caused to be filed by the Company
with the Commission pursuant to the Exchange Act or any order of the
Commission thereunder and (iii) such other information in the possession of
the Company concerning the Trust as the Representative from time to time
may reasonably request.
(i) Subject to the provisions of Section 9 hereof, the Company
will pay all expenses incident to the performance of its obligations under
this Agreement and will reimburse the Underwriters (if and to the extent
incurred by them) for any filing fees and other expenses (including fees
and disbursements of counsel) incurred by them in connection with
qualification of the Notes for sale in jurisdictions that the
Representative may designate pursuant to Section 5(f) hereof and
determination of their eligibility for investment under the laws of such
jurisdictions as the Representative reasonably designates and the printing
of memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of the Notes, for any travel expenses of the
officers and employees of the Underwriters and any other expenses of the
Underwriters in connection with attending or hosting meetings with
prospective purchasers of the Notes and for expenses incurred in
distributing the Term Sheets and the Prospectus (including any amendments
and supplements thereto).
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(j) To the extent, if any, that the rating provided with respect
to the Notes by Xxxxx'x Investors Service, Inc. ("Moody's"), Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("Standard &
Poor's"), and Fitch Ratings ("Fitch" and, together with Standard & Poor's
and Moody's, the "Rating Agencies") is conditional upon the furnishing of
documents or the taking of any other action by the Company, the Company
shall furnish such documents and take any such other action.
(k) On or before the Closing Date, the Company and AHFC shall
annotate and indicate unambiguously in the computer records of the Company
and AHFC relating to the Receivables to show the Trust's absolute ownership
of the Receivables, and from and after the Closing Date neither the Company
nor AHFC shall take any action inconsistent with the Trust's ownership of
such Receivables, other than as permitted by the Sale and Servicing
Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Notes on the Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Company and AHFC herein on the Closing Date, to the accuracy of
the statements of Company and AHFC officers made pursuant to the provisions
hereof, to the performance by the Company and AHFC of their respective
obligations hereunder and to the following additional conditions precedent:
(a) The Representative shall have received a letter, dated the
date hereof or the Closing Date, of KPMG LLP, in form and substance
satisfactory to the Representative and counsel for the Underwriters,
confirming that they are independent public accountants within the meaning
of the Act and the applicable Rules and Regulations and stating in effect
that (i) they have performed certain specified procedures as a result of
which they determined that certain information of an accounting, financial
or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Trust, AHFC and the Company) set forth in the Registration Statement, the
Term Sheet and the Prospectus (and any supplements thereto), agrees with
the accounting records of the Trust, AHFC and the Company, excluding any
questions of legal interpretation, and (ii) they have performed certain
specified procedures with respect to the Receivables.
(b) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representative, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in or affecting particularly the business,
properties, condition (financial or otherwise) or results of operations of
the Company or AHFC which, in the judgment of a majority in interest of the
Underwriters (including the Representative), materially impairs the
investment quality of each Class of the Notes or makes it
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impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for each Class of the Notes; (ii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such
exchange; (iii) any banking moratorium declared by Federal, California or
New York authorities; or (iv) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters
(including the Representative), the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for each Class of the Notes.
(d) The Representative shall have received an opinion of Xxxxxxxx
& Xxxxxxxx LLP, special California counsel to the Company and AHFC, dated
the Closing Date and satisfactory in form and substance to the
Representative and in form and scope to counsel for the Underwriters, to
the effect that:
(i) each Basic Document to which AHFC or the Company is a party
has been duly authorized by all necessary corporate action on the part
of AHFC or the Company, as applicable, and has been duly executed and
delivered by each of AHFC and the Company;
(ii) the direction by the Company to the Indenture Trustee to
authenticate the Notes, as set forth in a letter dated April 20, 2004
and the direction by the Company to the Owner Trustee to execute and
deliver to the Indenture Trustee for authentication of the Notes, as
set forth in a letter dated April 20, 2004, have been duly authorized
by all necessary corporate action on the part of the Company;
(iii) the direction by the Company to the Owner Trustee to
authenticate and deliver the Certificates, as set forth in a letter
dated April 20, 2004, has been duly authorized by all necessary
corporate action on the part of the Company;
(iv) AHFC has the corporate authority to execute, deliver and
perform its obligations under the Receivables Purchase Agreement;
(v) the Company has the corporate authority to execute, deliver
and perform its obligations under the Sale and Servicing Agreement;
(vi) each of AHFC and the Company has the corporate authority to
conduct its business as described in the Prospectus; and
(vii) assuming that AHFC follows its standard operating
procedures for obtaining a perfected first priority security interest
in California Financed
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Vehicles as described in the Officer's Certificate executed by AHFC
and attached hereto, and relying solely on such Officer's Certificate
with respect to such facts (and we have no reason to believe that AHFC
has not or will not continue to follow its standard operating
procedures in connection with the perfection of security interests in
the California Financed Vehicles), AHFC has acquired or will acquire a
perfected first priority security interest in the California Financed
Vehicles.
(e) The Representative shall have received an opinion of XxXxx
Xxxxxx LLP, special counsel to the Company and AHFC, dated the Closing Date
and satisfactory in form and substance to the Representative and in form
and scope to counsel for the Underwriters, to the effect that:
(i) each of the Company and AHFC is validly existing and in good
standing under the laws of the State of California;
(ii) when the Notes have been validly executed, authenticated and
delivered in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, the Notes will constitute valid and binding obligations of
the Trust enforceable in accordance with their terms and entitled to
the benefits of the Indenture, except that enforceability thereof may
be subject to (a) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (b) general
principles of equity regardless of whether such enforceability is
considered in a proceeding at law or in equity;
(iii) the execution, delivery and performance by each of the
Company and AHFC of the Basic Documents to which it is a party will
not violate or result in a material breach of any of the terms of or
constitute a material default under or (except as contemplated in the
Basic Documents) result in the creation of any lien, charge or
encumbrance on any property or assets of the Company or AHFC, pursuant
to the terms of any indenture, mortgage, deed of trust or other
agreement described in an Officer's Certificate or Certificates and
schedules attached to such opinion (collectively, the "Material
Agreements"). As those Material Agreements which by their terms are or
may be governed by the laws of a jurisdiction other than New York,
such counsel may assume that such Material Agreements are governed by
the laws of the State of New York for purposes of such opinion. In
addition, and in reliance upon a certificate of AHFC's Chief Financial
Officer or other accounting officer as to compliance with financial
covenants, such counsel may exclude from the scope of such opinion any
potential violation of financial covenants contained in such Material
Agreements.
(iv) no consent, approval, authorization or order of, or filing
with any New York or federal governmental entity is required for the
execution and delivery by each of the Company or AHFC of the Basic
Documents to which it is
11
a party or the performance by each of the Company or AHFC of the
transactions contemplated thereby where the failure to make or obtain
such consent or approval of, notice to, filing with, or other action
by, or take such action would reasonably be expected to have a
material adverse effect on the ability of such entity to perform its
obligations under the Basic Documents, except for (i) the filing of
UCC financing statements, (ii) filings and other actions required
pursuant to state securities or blue sky laws, as to which such
counsel shall express no opinion, and (iii) those that have already
been obtained, made or taken;
(v) the execution and delivery by each of the Company and AHFC of
the Basic Documents to which it is a party, the consummation of the
transactions contemplated thereby and compliance with any of the
provisions thereof by each of AHFC and the Company will not violate
(i) any of the terms, conditions or provisions of the certificate of
incorporation or bylaws of AHFC or the Company, each as amended, (ii)
any federal or State of New York statute, rule or regulation
applicable to AHFC or the Company (other than federal and state
securities or blue sky laws, as to which such counsel shall express no
opinion) or (iii) any judgment, written injunction, decree, order or
ruling of any court or governmental authority binding on AHFC or the
Company of which such counsel has knowledge;
(vi) such counsel has no reason to believe that the Registration
Statement or any amendment thereto, as of its effective date or as of
such Closing Date, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus or any amendment or supplement thereto, as of its issue
date or as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(vii) the Registration Statement and the Prospectus complies in
all material respects with the requirements of the Act and the rules
and regulations promulgated thereunder; and such counsel does not know
of any contracts or documents of a character required to be described
in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which are not described and
filed as required; it being understood that such counsel need express
no opinion as to the financial statements or other financial,
numerical, statistical and quantitative information contained in the
Registration Statement or the Prospectus;
(viii) the statements in the Prospectus under the heading
"Certain Legal Aspects of the Receivables," "Summary - ERISA
Considerations" and "ERISA Considerations," to the extent that they
constitute matters of federal or State of
12
New York law, or federal or State of New York legal conclusions
provide a fair and accurate summary of such law or conclusions; and
(ix) assuming that the Receivables are in substantially one of
the forms attached to such opinion, the Receivables constitute
tangible "chattel paper" within the meaning of the California UCC.
(f) The Representative shall have received an opinion of XxXxx
Xxxxxx LLP, special counsel to the Company and AHFC, dated the Closing Date
and satisfactory in form and substance to the Representative and in form
and scope to counsel for the Underwriters, to the effect that:
(i) the Receivables Purchase Agreement creates a valid security
interest in favor of the Company in AHFC's right, title and interest
in and to the Receivables transferred to the Company pursuant to the
Receivables Purchase Agreement;
(ii) the Sale and Servicing Agreement creates a valid security
interest in favor of the Trust in the Company's right, title and
interest in and to the Receivables transferred to the Trust pursuant
to the Sale and Servicing Agreement;
(iii) the Indenture creates a valid security interest in favor of
the Indenture Trustee in the Trust's right, title and interest in and
to the Receivables pledged to the Indenture Trustee pursuant to the
Indenture;
(iv) the filing of the financing statements of Form UCC-1 naming
(a) AHFC as debtor in favor of the Company, (b) the Company as debtor
in favor of the Trust, and (c) the Trust as debtor in favor of the
Indenture, in the respective offices, will be effective to perfect the
security interests described in paragraphs (i), (ii) and (iii) above,
and each such security interest will be prior to any security interest
in the Receivables of any other creditor of AHFC, the Company or the
Trust, respectively;
(v) the Trust Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act");
(vi) the Indenture has been duly qualified under the Trust
Indenture Act;
(vii) the Registration Statement is effective under the Act and,
to the best of such counsel's knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Act and no proceedings therefor have been initiated
or threatened by the Commission;
13
(viii) each Basic Document (other than the Trust Agreement) to
which it is a party is, when executed and delivered, a valid and
binding obligation of each of the Company and AHFC, enforceable
against each such party in accordance with its terms, except as
enforceability thereof may be limited by (x) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, (y)
general principles of equity regardless of whether such enforceability
is considered in a proceeding at law or in equity and (z) with respect
to rights or indemnity thereunder, limitations of public policy under
applicable securities laws;
(ix) assuming due authorization, execution and delivery by the
Indenture Trustee and the Owner Trustee, not in its individual
capacity but solely as Owner Trustee on behalf of the Trust, the
Indenture constitutes the legal, valid and binding agreement of the
Trust, enforceable against the Trust in accordance with its terms
(subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting creditors'
rights generally from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law)
except, as applicable, that such counsel need not express an opinion
with respect to indemnification or contribution provisions which may
be deemed to be in violation of the public policy underlying any law
or regulation; and
(x) neither the Trust nor the Company is an "investment company"
or under the "control" of an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act") and neither the Trust nor the Seller is
required to register under the Investment Company Act.
(g) The Representative shall have received an opinion of XxXxx
Xxxxxx LLP, tax counsel for the Company, dated the Closing Date and
satisfactory in form and scope to the Representative and counsel for the
Underwriters, to the effect that for federal income tax purposes (i) the
Notes will be characterized as indebtedness, (ii) the Trust will not be
classified as an association (or publicly traded partnership) taxable as a
corporation and (iii) the statements set forth in the Prospectus Supplement
under the headings "Summary of Terms--Tax Status", "Material Income Tax
Consequences" and Annex A to the Prospectus, "Global Clearance, Settlement
and Tax Documentation Procedures-Certain U.S. Federal Income Tax
Documentation Requirements" and in the Base Prospectus under the headings
"Summary of Terms--Tax Status" and "Material Income Tax Consequences," to
the extent they constitute matters of law or legal conclusions, accurately
described the material United States federal income tax consequences to
Noteholders.
(h) The Representative shall have received an opinion of XxXxx
Xxxxxx LLP, tax counsel for the Company, dated the Closing Date and
satisfactory in form and
14
scope to the Representative and counsel for the Underwriters, to the effect
that for California state franchise and California state income tax
purposes the Trust will not be classified as an association (or publicly
traded partnership) taxable as a corporation.
(i) The Representative shall have received from O'Melveny & Xxxxx
LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the validity of the Notes, the Registration
Statement, the Prospectus and other related matters as the Representative
may require, and the Company shall have furnished to such counsel such
documents as it may request for the purpose of enabling it to pass upon
such matters.
(j) The Representative shall have received a certificate, dated
the Closing Date, of the Chairman of the Board, the President or any
Vice-President and a principal financial or accounting officer of each of
the Company and AHFC in which such officers, to the best of their knowledge
after reasonable investigation, shall state that: the representations and
warranties of the Company and AHFC in this Agreement are true and correct
in all material respects; the Company or AHFC, as applicable, has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date in all
material respects; the representations and warranties of the Company or
AHFC, as applicable, in the Basic Documents are true and correct as of the
dates specified in such agreements in all material respects; the Company or
AHFC, as applicable, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such agreements
at or prior to the Closing Date; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission; and,
subsequent to the date of the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or otherwise),
business, properties or results of operations of the Company or AHFC or
their respective businesses except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(k) The Representative shall have received an opinion of Xxxxxxx
Xxxxxxxx & Xxxx LLP, counsel to the Indenture Trustee, dated the Closing
Date and satisfactory in form and substance to the Representative and in
form and scope to counsel for the Underwriters, substantially to the effect
that:
(i) JPMorgan Chase has been legally incorporated in the State of
New York and, based upon a certificate of good standing issued by that
State, is validly existing as a banking corporation in good standing
under the laws of that State, and has the requisite entity power and
authority to execute and deliver each Agreement to which it is a party
and to perform its obligations thereunder;
(ii) with respect to JPMorgan Chase, the performance of its
obligations under each of the Agreements to which it is a party and
the consummation of the transactions contemplated thereby do not
require any consent, approval,
15
authorization or order of, filing with or notice to any United States
federal or State of New York court, agency or other governmental body
under any United States federal or State of New York statute or
regulation that in our experience is normally applicable to
transactions of the type contemplated by the Agreements, except such
as may be required under the securities laws of any State of the
United States or such as have been obtained, effected or given;
(iii) with respect to JPMorgan Chase, the performance of its
obligations under each of the Agreements to which it is a party and
the consummation of the transactions contemplated thereby will not
result in any breach or violation of its certificate of incorporation
or bylaws or the federal laws of the United States or the laws of the
State of New York applicable to JPMorgan Chase and transactions of the
type contemplated by the Agreements;
(iv) with respect to the JPMorgan Chase, to our knowledge, there
is no legal action, suit, proceeding or investigation before any
court, agency or other governmental body pending or threatened (by
written communication to it of a present intention to initiate such
action, suit or proceeding) against it, which, either in one instance
or in the aggregate, draws into question the validity of, seeks to
prevent the consummation of any of the transactions contemplated by or
would impair materially its ability to perform its obligations under
any of the Agreements to which it is a party;
(v) each of the Agreements to which JPMorgan Chase is a party (to
the extent that the laws of the State of New York are designated
therein as the governing law thereof), assuming the necessary
authorization, execution and delivery thereof by the parties thereto
(other than any party as to which we opine to that effect herein), is
a valid and legally binding agreement under the laws of the State of
New York, enforceable thereunder in accordance with its terms against
the Indenture Trustee;
(vi) each of the Agreements to which JPMorgan Chase is a party
has been duly authorized, executed and delivered by JPMorgan Chase;
and
(vii) the Notes have been duly authenticated and delivered by the
Indenture Trustee in accordance with the Indenture.
(l) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Owner Trustee, dated the
Closing Date and satisfactory in form and substance to the Representative
and in form and scope to counsel for the Underwriters, to the effect that:
(i) the Owner Trustee is duly formed and validly existing as a
banking corporation in good standing under the laws of the State of
Delaware;
16
(ii) the Owner Trustee has the power and authority to execute,
deliver and perform its obligations under the Trust Agreement and to
consummate the transactions contemplated thereby;
(iii) the Owner Trustee has duly authorized, executed and
delivered the Trust Agreement, and the Trust Agreement constitutes a
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) neither the execution, delivery and performance by the Owner
Trustee of the Trust Agreement, nor the consummation of the
transactions contemplated thereby, is in violation of the certificate
of incorporation or bylaws of the Owner Trustee or of any law,
governmental rule or regulation of the State of Delaware or of the
United States of America governing the trust powers of the Owner
Trustee; and
(v) no consent, approval or other authorization of, or
registration, declaration or filing with, any court or governmental
agency or commission of the State of Delaware or of the United States
of America governing the trust powers of the Owner Trustee is required
by or with respect to the Owner Trustee for the valid execution and
delivery of the Trust Agreement, or for the validity or enforceability
thereof, other than the filing of the Certificate of Trust with the
Delaware Secretary of State, which has been duly filed.
(m) [Reserved]
(n) The Representative shall have received one or more opinions
of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special Delaware counsel to the Trust,
dated the Closing Date and satisfactory in form and scope to the
Representative and counsel for the Underwriters, to the effect that:
(i) the Trust has been duly formed and is validly existing and in
good standing as a statutory trust under the Delaware Statutory Trust
Statute, 12 Del. C. (section) 3801, et seq. (the "Delaware Act");
(ii) the Trust has the power and authority under the Delaware Act
and the Trust Agreement to execute and deliver the Basic Documents to
which the Trust is a party, to issue the Notes and the Certificates,
to grant the Collateral (as such term is defined in the Indenture) to
the Indenture Trustee as security for the Notes and to perform its
obligations under each of said documents;
17
(iii) the Trust has duly authorized and executed the Certificates
and the Notes, the Owner Trustee has duly authenticated the
Certificates on behalf of the Trust, and when the Certificates are
delivered upon the order of the Depositor in accordance with the Trust
Agreement, the Certificates will be validly issued and entitled to the
benefits of the Trust Agreement;
(iv) to the extent that Article 9 of the Uniform Commercial Code
as in effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflicts of laws principles), and
assuming that the security interest created by the Indenture in the
Collateral has been duly created and has attached, upon the filing of
the financing statements set forth in such opinion (the "Delaware
Financing Statements") with the Office of the Secretary of State
(Uniform Commercial Code Division) (the "Division"), the Indenture
Trustee will have a perfected security interest in the Trust's rights
in that portion of the Collateral described in the Delaware Financing
Statements that may be perfected by the filing of a UCC financing
statement with the Division (the "Filing Collateral") and the proceeds
thereof (as defined in Section 9-102(a)(64) of the Delaware UCC);
(v) the search report referenced in such opinion will set forth
the proper filing office and the proper debtor necessary to identify
those persons who under the Delaware UCC have on file financing
statements against the Trust covering the Filing Collateral as of the
Closing Date. Such search report identifies no secured party who has
filed with the Division a financing statement naming the Trust as
debtor, and describing the Filing Collateral prior to the Closing
Date;
(vi) no refiling or other action is necessary under the Delaware
UCC in order to maintain the perfection of such security interest
except for the filing of continuation statements at five year
intervals;
(vii) assuming for federal income tax purposes that the Trust
will not be classified as an association or a publicly traded
partnership taxable as a corporation, and that the Notes will be
characterized as indebtedness for federal income tax purposes, then
the Trust will not be subject to any franchise or income tax under the
laws of the State of Delaware, and the Notes will also be
characterized as indebtedness for Delaware tax purposes;
(viii) the Trust Agreement is the legal, valid and binding
obligation of the parties thereto, enforceable against such parties,
in accordance with its terms (subject to such exclusions and
exceptions as are customary in opinions of this type);
(ix) under the Delaware Act, the Trust is a separate legal entity
and, assuming that the Sale and Servicing Agreement conveys good title
to the Trust property to the Trust as a true sale and not as a
security arrangement, the Trust
18
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.
(o) The Representative shall have received an opinion of XxXxx
Xxxxxx LLP, counsel to the Company, dated the Closing Date and satisfactory
in form and substance to the Representative and in form and scope to
counsel for the Underwriters, (i) with respect to the characterization of
the transfer of the Receivables by AHFC to the Company and (ii) to the
effect that should AHFC become the debtor in a case under Title 11 of the
United States Code (the "Bankruptcy Code") and the Company would not
otherwise properly be a debtor in a case under the Bankruptcy Code, and in
a properly presented and decided case, a federal bankruptcy court would not
use its equitable discretion to disregard the corporate forms of the
Company and AHFC so as to substantively consolidate the assets and
liabilities of the Company with the assets and liabilities of AHFC and such
opinion shall be in substantially the form previously discussed with the
Representative and counsel for the Underwriters and in any event
satisfactory in form and in substance to the Representative and in form and
scope to counsel for the Underwriters.
(p) The Representative shall have received evidence satisfactory
to it and its counsel that, on or before the Closing Date, UCC-1 financing
statements have been or are being filed in the office of the Secretary of
State of the state of (i) California reflecting the transfer of the
interest of AHFC in the Receivables and the proceeds thereof to the Company
and the transfer of the interest of the Company in the Receivables and the
proceeds thereof to the Trust and (ii) Delaware reflecting the grant of the
security interest by the Trust in the Receivables and the proceeds thereof
to the Indenture Trustee.
19
(q) The Representative shall have received an opinion of XxXxx
Xxxxxx LLP, special counsel to the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and in form and
scope to counsel for the Underwriters to the effect that upon execution and
delivery of the Sale and Servicing Agreement, the Indenture and the Control
Agreement, the provisions of the Indenture and the Control Agreement will
be effective to create a valid security interest in favor of the Indenture
Trustee, to secure payment of the Notes, in the Trust's rights in all
"security entitlements" (as defined in Section 8-102(a)(17) of the UCC)
with respect to "financial assets" (as defined in Section 8-102(a)(9) of
the UCC) now or hereafter credited to each Securities Account and in all
"security entitlements" (within the meaning of the Federal Book-Entry
Regulations) with respect to Federal Book-Entry Securities now or hereafter
credited to each Securities Account (such security entitlements,
collectively, the "Security Entitlements"); the provisions of the Indenture
and the Control Agreement will be effective to perfect the security
interest of the Indenture Trustee in the Security Entitlements; and no
security interest of any other creditor of the Trust will be prior to the
security interest of the Indenture Trustee in the Security Entitlements.
(r) Each Class of the Notes shall have been rated in the highest
rating category by each of Xxxxx'x, Fitch and Standard & Poor's.
(s) On or prior to the Closing Date, the Certificates shall have
been issued to the Company.
(t) The Representative shall have received from XxXxx Xxxxxx LLP
and each other counsel for the Company, a letter dated the Closing Date to
the effect that the Underwriters may rely upon each opinion rendered by
such counsel to either Standard & Poor's, Xxxxx'x or Fitch in connection
with the rating of any Class of the Notes, as if each such opinion were
addressed to the Underwriters.
(u) The Representative shall have received an opinion of Xxxxx
Xxxx, Esq., counsel to the Company and AHFC, dated the Closing Date, to the
effect that to the best knowledge of such counsel after due inquiry, there
are no actions, proceedings or investigations to which the Company or AHFC
is a party or that are threatened before any court, administrative agency
or other tribunal having jurisdiction over AHFC or the Company, (i) that
are required to be disclosed in the Registration Statement, (ii) asserting
the invalidity of this Agreement, any Basic Document, the Notes or the
Certificates, (iii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by
this Agreement or the Basic Documents, (iv) which might materially and
adversely affect the performance by the Company or AHFC of its obligations
under, or the validity or enforceability of, this Agreement, any Basic
Document, the Notes or the Certificates or (v) seeking adversely to affect
the federal income tax attributes of the Notes as described in the
Prospectus under the heading "MATERIAL INCOME TAX CONSEQUENCES."
20
(v) As of the Closing Date, the representations and warranties of
the Company and AHFC contained in the Basic Documents will be true and
correct.
The Company will furnish the Representative with such conformed copies of
such opinions, certificates, letters and documents as the Representative
reasonably requests.
The Representative may, in its sole discretion, waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
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
21
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.
(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
22
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 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
23
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.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or AHFC or their respective officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or the Company or AHFC or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Notes. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the Notes
by the Underwriters is not consummated, the Company shall remain responsible for
the expenses to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company, AHFC and the Underwriters pursuant to
Section 7 shall remain in effect. If the purchase of the Notes by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (ii), (iii) or (iv) of Section 6(c), the Company and
AHFC, jointly and severally, will reimburse the Underwriters for all out-of
pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Notes.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or sent by facsimile and
confirmed to the Representative at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Syndicate & Trading, (facsimile: (000) 000-0000), or, if sent to
the Company, will be mailed, delivered or sent by facsimile transmission and
confirmed to it at 000 Xxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxx X. Xxxxxxxxx, (facsimile: (000) 000-0000), and if to AHFC, will be mailed,
delivered or sent by facsimile transmission and confirmed to it at 000 Xxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxxxx, (facsimile:
(000) 000-0000); provided that any notice to an Underwriter pursuant to Section
7 will be mailed, delivered or telecopied and confirmed to such Underwriter.
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to the
date which is one year and one day after the payment in full of all securities
issued by the Company or by a trust for which the Company was the depositor
which securities were rated by any nationally recognized statistical rating
organization, it will not institute against, or join any other person in
instituting against, the Company any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any Federal or
state bankruptcy or similar law.
24
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.
[Remainder of Page Intentionally Left Blank]
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/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
S-1
Schedule A
Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Underwriter Notes Notes Notes Notes
------------------------------ ------------ ------------ ------------ ------------
X.X. Xxxxxx Securities Inc. $133,500,000 $168,000,000 $161,500,000 $112,500,000
Deutsche Bank Securities Inc. $133,500,000 $168,000,000 $161,500,000 $112,500,000
Banc of America Securities LLC $ 20,000,000 $ 30,000,000 $ 27,000,000 $ 19,000,000
Banc One Capital Markets, Inc. $ 20,000,000 $ 30,000,000 $ 27,000,000 $ 19,000,000
Citigroup Global Markets Inc. $ 20,000,000 $ 30,000,000 $ 27,000,000 $ 19,000,000
Credit Suisse First Boston LLC $ 20,000,000 $ 30,000,000 $ 27,000,000 $ 19,000,000
Total: $347,000,000 $456,000,000 $431,000,000 $301,000,000
A-1
