EXECUTION COPY
$1,455,000,000
HONDA AUTO RECEIVABLES 2008-1 OWNER TRUST
$375,000,000 2.91645% ASSET BACKED NOTES, CLASS A-1
$396,000,000 3.77% ASSET BACKED NOTES, CLASS A-2
$412,000,000 4.47% ASSET BACKED NOTES, CLASS A-3
$272,000,000 4.88% ASSET BACKED NOTES, CLASS A-4
AMERICAN HONDA RECEIVABLES CORP.
UNDERWRITING AGREEMENT
June 18, 2008
Barclays Capital Inc.
As Representative of the Several Underwriters
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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 2008-1 Owner Trust (the
"Trust") to issue and sell $375,000,000 aggregate principal amount of 2.91645%
Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), $396,000,000 aggregate
principal amount of 3.77% Asset Backed Notes, Class A-2 (the "Class A-2 Notes"),
$412,000,000 aggregate principal amount of 4.47% Asset Backed Notes, Class A-3
(the "Class A-3 Notes") and $272,000,000 aggregate principal amount of 4.88%
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 June 1, 2008 (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 $45,001,174.27 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 June 26, 2008 (the "Trust Agreement"), among the Company
and U.S. Bank Trust National Association, as owner trustee (in such capacity,
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") and certain monies due
thereunder on or after June 1, 2008 (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 June 1,
2008 (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 June 1, 2008
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.
At or prior to the time when sales to investors of the Notes were
first made to investors by the several Underwriters named in Schedule A hereto
(collectively, the "Underwriters") for which Barclays Capital Inc. is acting as
representative (in such capacity, the "Representative"), which was approximately
2:54 p.m. on June 18, 2008 (the "Time of Sale"), the Company had prepared the
following information (collectively, the "Time of Sale Information"): the
preliminary prospectus supplement dated June 18, 2008 relating to the Notes and
containing all information to be included in the Final Prospectus (as defined
below) other than pricing related information and accompanied by the base
prospectus dated June 18, 2008 (together, along with information referred to
under the caption "Static Pools" therein regardless of whether it is deemed a
part of the Registration Statement or Final Prospectus, the "Preliminary
Prospectus"). If, subsequent to the Time of Sale and prior to the Closing Date
(as defined below), the Company wishes to convey additional or changed
information in order to make the Time of Sale Information, in light of the
circumstances under which statements in the Time of Sale Information were made,
not misleading, and as a result investors in the Notes elect to terminate their
old "Contracts of Sale" (within the meaning of Rule 159 under the Securities Act
of 1933, as amended (the "Act")) for any Notes and enter into new Contracts of
Sale with the Underwriters, then "Time of Sale Information" will refer to the
information conveyed to investors at the time of entry into the first such new
Contract of Sale, in an amended Preliminary Prospectus approved by the Company
and the Representative that corrects such material misstatements or omissions (a
"Corrected Prospectus") and "Time of Sale" will refer to the time and date on
which such new Contracts of Sale were entered into.
The Company hereby agrees with the several 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. 333-150095),
including a prospectus, relating to the Notes has been filed with the
Securities and Exchange Commission (the "Commission") and has become
effective and is still effective as of the date hereof. A Preliminary
Prospectus was filed with the Commission pursuant to Rule 424(b) of the Act
and the rules and regulations thereunder (the "Rules and Regulations"). A
final prospectus supplement dated the date hereof, containing the same
information as the Preliminary Prospectus, but including the pricing
related information and accompanied by the base prospectus dated June 18,
2008 (together, along with information referred to under the caption
"Static Pools" therein regardless of whether it is
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deemed a part of the Registration Statement or Final Prospectus, the "Final
Prospectus", and together with the Preliminary Prospectus and any Corrected
Prospectus, the "Prospectus") will be filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations ("Rule 424(b)") within the time
period required thereby. Such registration statement, as amended as of its
effective date (including without limitation each deemed effective date
with respect to the Company and the Underwriters pursuant to Rule
430B(f)(2) of the Rules and Regulations) is hereinafter referred to as the
"Registration Statement." Except as described in Section 5A(b), no "issuer
free writing prospectus" as defined in Rule 433 of the Rules and
Regulations relating to the Notes has been or will be used by or on behalf
of the Company.
(b) On the effective date of the Registration Statement
(including without limitation each deemed effective date with respect to
the Company and the Underwriters pursuant to Rule 430B(f)(2) of the Rules
and Regulations) relating to the Notes, such Registration Statement
conformed and on the Closing Date will conform in all respects to the
requirements of the Act and 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 as of each such date, such Registration Statement
conforms in all respects to the requirements contained in the Act and the
Rules and Regulations. With regard to the Preliminary Prospectus, as of the
date of the Preliminary Prospectus and as of the Time of Sale, and with
regard to the Final Prospectus, as of the date of the Final Prospectus and
as of the Closing Date, each Prospectus will conform in all respects to the
requirements of the Act and the Rules and Regulations, and none of such
documents includes or will include any untrue statement of a material fact
or omits or will omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The two preceding sentences do not apply with respect
to any statements or omissions made in reliance upon and in conformity with
the Underwriter Information (as defined herein).
(c) The Time of Sale Information, at the Time of Sale, did not,
and at the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions
made in reliance upon and in conformity with the Underwriter Information
(as defined herein).
(d) The Notes are "asset backed securities" within the meaning
of, and satisfy the requirements for use of, Form S-3 under the Act.
(e) 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 to the
requirements of the Act or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as applicable, and the rules and regulations
thereunder; and any further documents so filed
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and incorporated by reference in the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the Rules
and Regulations.
(f) The Company is not, and on the date on which the first bona
fide offer of the Notes is made, will not be an "ineligible issuer" as
defined in Rule 405. The Company has caused to be filed with the Commission
on June 18, 2008 the Preliminary Prospectus.
(g) Each of the Company and AHFC has been duly incorporated and
is a validly existing corporation in good standing under the laws of the
State of California, with full 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.
(h) 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).
(i) Neither the Company nor AHFC is (i) in breach or violation of
its Articles of Incorporation or By-laws, (ii) 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, or (iii) in violation of any
applicable law, statute, regulation or ordinance or any governmental body
having jurisdiction over it, in each case, that 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
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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.
(j) 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.
(k) Except as disclosed in each 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.
(l) As of the Closing Date, the representations and warranties of
the Company and AHFC contained in the Basic Documents will be true and
correct.
(m) This Agreement has been duly authorized, executed and
delivered by each of the Company and AHFC.
(n) 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.
(o) 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.
(p) 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.
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(q) The computer tape of the Receivables created as of June 1,
2008, 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.
(r) 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.
(s) 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.
(t) 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").
(u) 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.
(v) Except for the Underwriters, neither the Company nor AHFC has
employed or retained a broker, finder, commission agent or other person in
connection with the sale of the Notes, and neither the Company nor AHFC is
under any obligation to pay any broker's fee or commission in connection
with such sale.
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, 99.91000% of the principal amount thereof; (ii) the Class A-2 Notes,
99.85317% of the principal amount thereof; (iii) the Class A-3 Notes, 99.80093%
of the principal amount thereof; and (iv) the Class A-4 Notes, 99.73267% 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
▇▇▇▇▇ ▇▇▇▇▇▇ LLP, New York, New York at 10:00 A.M., New York City time, on June
26, 2008 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
▇▇▇▇▇ ▇▇▇▇▇▇ LLP at least 24 hours prior to the Closing Date.
The Company will deliver the Certificates to the above office of ▇▇▇▇▇
▇▇▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇▇▇ 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 June 26, 2008, 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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5A. Certain Agreements of the Company. The Company agrees with the
several Underwriters:
(a) The Company will file the Final 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 shall file the final pricing information, which
may be posted on a Bloomberg screen or distributed via Bloomberg, as a free
writing prospectus.
(c) 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.
(d) 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 5A(c), 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.
(e) 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).
(f) The Company will furnish to the Underwriters copies of each
Prospectus, the Registration Statement and all amendments and supplements
to such
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documents, in each case as soon as available and in such quantities as the
Representative reasonably requests. The Final 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.
(g) 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.
(h) For a period from the date of this Agreement until the
retirement of the Notes, the Company will furnish to the Representative
and, upon request, to each of the other Underwriters, (i) 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 Trust 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 or the Trust, as the case may be,
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.
(i) 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.
(j) Subject to the provisions of Section 10 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 5A(g) 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
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in connection with attending or hosting meetings with prospective
purchasers of the Notes and for expenses incurred in distributing the
Prospectus (including any amendments and supplements thereto).
(k) To the extent, if any, that the rating provided with respect
to the Notes by ▇▇▇▇▇'▇ Investors Service ("▇▇▇▇▇'▇") or Standard & Poor's
Ratings Services, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") 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.
(l) On or before the Closing Date, the Company shall annotate and
indicate unambiguously in the computer records of the Company relating to
the Receivables to show the Trust's absolute ownership of the Receivables,
and from and after the Closing Date the Company shall not take any action
inconsistent with the Trust's ownership of such Receivables, other than as
permitted by the Sale and Servicing Agreement.
5B. Certain Agreements of the Underwriters. Each of the several
Underwriters, for itself only, represents, warrants and agrees with the Company
as follows:
Other than the Preliminary Prospectus and the Final Prospectus, each
Underwriter has not conveyed and will not convey, without the Company's prior
written approval, to any potential investor in the Notes any other written
material of any kind relating to any "issuer information" as defined in Rule
433(h)(2) of the Act, or the Notes that would constitute a "prospectus" or a
"free writing prospectus," each as defined in the Act ("Prohibited Materials"),
including, but not limited to the materials constituting a "road show"
presentation to Potential Investors (other than use of such materials as part of
the road show itself) and any "ABS informational and computational materials"
within the meaning of Item 1101(a) of Regulation AB promulgated by the
Commission under the Act and the Securities Exchange Act of 1934, as amended;
provided, however, that you may convey to one or more of your Potential
Investors (the following, collectively, "Permitted Information"): (i)
information permitted in Rule 134 under the Act or previously included in the
Preliminary Prospectus and (ii) a free writing prospectus, as defined in Rule
405 under the Act, containing only: (a) syndicate structure and a column or
other entry showing the status of the subscriptions for each class of the Notes
(both for the issuance as a whole and for each underwriter's specific retention)
and confirmation information, (b) expected settlement date and expected and
actual pricing parameters of the Notes, (c) information relating to the class,
size, rating, price, CUSIP, coupon, yield, spread, benchmark, status of the
Notes, the expected final payment date, the trade date and payment window of one
or more classes of Notes, the weighted average life of any class of Notes,
pricing prepayment speeds and clean up call information, and any credit
enhancement expected to be provided or any derivatives entered into in
connection with the Notes, (d) expected maturities of any class of Notes, and
(e) the eligibility of the Notes to be purchased by ▇▇▇▇▇ plans; provided
further, that, in the case of the Permitted Information contained in clauses (i)
and (ii), such Permitted Information is posted on a Bloomberg screen or
distributed via Bloomberg and, in the case of clause (ii), other than the final
pricing terms, which will be posted on a Bloomberg screen or distributed via
Bloomberg, such
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free writing prospectus shall not contain information that would require the
issuer to file such free writing prospectus pursuant to Rule 433 under the Act.
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
Preliminary Prospectus, each 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 and
certain static pool data (within the meaning of Item 1105 of Regulation AB
under the Act) included on the website listed in the Preliminary Prospectus
and the Prospectus.
(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 any 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 any 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
11
inadvisable to proceed with completion of the public offering or the sale
of and payment for any Class of the Notes.
(d) The Representative shall have received an opinion of ▇▇▇▇,
Forward, ▇▇▇▇▇▇▇▇ & Scripps LLP, special California counsel to the Company
and AHFC, or of such other California counsel satisfactory to the
Representative, 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 AHFC and the Company has the corporate power and
corporate authority to execute and deliver the Receivables Purchase
Agreement, and to incur its obligations set forth therein.
(ii) Each of AHFC and the Company has the corporate power and
corporate authority to execute and deliver the Sale and Servicing
Agreement, and to incur its obligations set forth therein.
(iii) Each of AHFC and the Company has the corporate power and
corporate authority to carry on its business as described in the
Prospectus.
(iv) The execution and delivery by AHFC of each of the Basic
Documents to which AHFC is a party, and the incurring by AHFC of the
obligations of AHFC thereunder, have been duly authorized by all
necessary corporate action on the part of AHFC, and each of the Basic
Documents to which AHFC is a party has been duly executed and
delivered by AHFC. The execution and delivery by the Company of each
of the Basic Documents to which the Company is a party, and the
incurring by the Company of the obligations of the Company thereunder,
have been duly authorized by all necessary corporate action on the
part of the Company, and each of the Basic Documents to which the
Company is a party has been duly executed and delivered by the
Company.
(v) The direction by the Company to the Indenture Trustee to
authenticate the Notes, as set forth in a letter dated as of the
Closing Date, and the direction by the Company to the Owner Trustee to
execute and deliver to the Indenture Trustee for authentication the
Notes, as set forth in a letter dated as of the Closing Date, have
been duly authorized by all necessary corporate action on the part of
the Company.
(vi) The direction by the Company to the Owner Trustee to
authenticate and deliver the Certificates, as set forth in a letter
dated as of the Closing Date, has been duly authorized by all
necessary corporate action on the part of the Company.
(vii) The execution and delivery by AHFC of each of the Basic
Documents to which AHFC is a party, and the incurring by AHFC of the
obligations of AHFC thereunder, do not violate any federal or
California statute, rule or regulation applicable to AHFC. The
execution and delivery by the
12
Company of each of the Basic Documents to which the Company is a
party, and the incurring by the Company of the obligations of the
Company thereunder, do not violate any federal or California statute,
rule or regulation applicable to the Company.
(viii) Assuming that AHFC follows its standard operating
procedures for creating and perfecting security interests in
California Financed Vehicles, as described in an Officers' Certificate
executed by AHFC and attached hereto, and relying solely on such
Officers' Certificate with respect to such facts (and AHFC has not
informed us that it has not followed, or that it will not continue to
follow, its standard operating procedures in connection with the
creation and perfection of security interests in the California
Financed Vehicles), AHFC has acquired or will acquire a perfected
security interest in each California Financed Vehicle that will be
prior to any other security interest therein created under Division 9
of the California Uniform Commercial Code.
(ix) No filing or other action is necessary to maintain the
perfection of the security interest in the California Financed
Vehicles created by the California Receivables and acquired by the
Company, the Trust or the Indenture Trustee, as applicable. Such
counsel may note that unless and until the obligors under the
California Receivables receive effective notice of the transfer to the
Company, the Trust or the Indenture Trustee (as the case may be) and
of the assignment of the rights to payment, such obligors are entitled
to make payments to and accept releases and discharges from AHFC, and,
for so long as AHFC is named as the legal owner and lienholder on any
certificate of title with respect to any California Financed Vehicle,
AHFC has the power to release the security interest in such California
Financed Vehicle or to make another assignment of such security
interest to an assignee that becomes the lienholder named on the
related certificate of title, which power may be improperly exercised
either through fraud or inadvertence;
(x) No consent, approval, authorization or other action by, or
filing with, any federal or California governmental authority, or any
order or decree, or any modification of any order or decree, from any
California court, is required for the execution and delivery by each
of AHFC and the Company of each of the Basic Documents to which it is
a party or the incurring of its obligations thereunder, or if
required, the requisite consent, approval, or authorization has been
obtained, the requisite filing has been accomplished, or the requisite
action has been taken.
(xi) The statements in the Prospectus under the heading "Certain
Legal Aspects of the Receivables," to the extent that they constitute
matters of State of California law or State of California legal
conclusions, provide a fair and accurate summary in all material
respects of such law or conclusions; provided, however, that we
express no opinion with respect to statements in the next to last
paragraph under the subheading "Consumer Protection Laws," as to which
the Company is receiving an opinion of counsel (from ▇▇▇▇▇▇ ▇▇▇▇,
LLP), as described therein.
13
(e) The Representative shall have received an opinion of ▇▇▇▇▇▇ &
Bird 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 to 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 either of the Company or AHFC of the Basic
Documents to which it is a party or the performance by either 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 that may be required pursuant to state securities or blue sky
laws, and (iii) those that have already been obtained, made or taken;
14
(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 either 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 need
express no opinion with respect to this paragraph) 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 the date of the Final
Prospectus or as of the 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 Preliminary Prospectus, together with the
pricing information, as of its date, as of the Time of Sale and as of
the Closing Date, or the Final Prospectus as of its date or as of the
Closing Date, contains or contained any untrue statement of a material
fact or omits or omitted to state any material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading; it being understood that such
counsel need make no statement or express any opinion as to the
financial statements or other financial, numerical, statistical and
quantitative information contained in the Registration Statement or a
Prospectus, and that for purposes of determining the date of the
Preliminary or Final Prospectus, it shall be the date stated on the
respective prospectus supplements thereto;
(vii) the Registration Statement and each 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 each Prospectus or to be filed as
exhibits to the Registration Statement that 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 a Prospectus;
(viii) the statements in each Prospectus under the heading
"Certain Legal Aspects of the Receivables," "Summary - ERISA
Considerations" and "ERISA Considerations," to the extent that they
constitute matters of federal or State of New York law, or federal or
State of New York legal conclusions provide a fair and accurate
summary of such law or conclusions; and
15
(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 ▇▇▇▇▇▇ &
Bird 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 Trustee, 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;
(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
16
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) in the case of this Agreement
and with respect to rights of 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 Company is
required to register under the Investment Company Act.
(g) The Representative shall have received an opinion of ▇▇▇▇▇
▇▇▇▇▇▇ 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 ▇▇▇▇▇
▇▇▇▇▇▇ 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
17
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 ▇▇▇▇▇ ▇▇▇▇▇▇ 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 Final 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 ▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and in form and
scope to counsel for the Underwriters, substantially to the effect that:
(i) the Indenture Trustee is a banking corporation validly
existing under the laws of the State of New York;
(ii) each of the Indenture Trustee and the Securities
Intermediary has full power and authority to execute, deliver and
perform its respective obligations under each of the Basic Documents
to which it is a party and has taken all necessary action to authorize
the execution, delivery and performance by it of each of the Basic
Documents to which it is a party;
18
(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 Basic
Documents;
(iv) the execution and delivery of the Basic Documents and the
performance by the Indenture Trustee of the respective terms of the
Basic Documents to which it is a party, do not conflict with or result
in a violation of the Certificate of Incorporation or By-laws of the
Indenture Trustee or the federal laws of the United States of America
or laws of the State of New York applicable to the banking or trust
powers of the Indenture Trustee;
(v) each of the Basic Documents to which the Indenture Trust is a
party has been duly executed and delivered by the Indenture Trustee or
the Securities Intermediary, as the case may be, and constitutes a
legal, valid and binding obligation of the Indenture Trustee or the
Securities Intermediary, as the case may be, enforceable against the
Indenture Trustee or the Securities Intermediary, as the case may be,
in accordance with its respective terms, except that, certain of such
obligations may be enforceable solely against the Collateral 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); and
(vi) the Notes delivered on the Closing Date have been duly
authenticated by the Indenture Trustee in accordance with the terms of
the Indenture.
(l) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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 a national banking association validly
existing and in good standing under the federal laws of the United
States;
(ii) the Owner Trustee has all necessary power and authority to
execute, deliver and perform the Trust Agreement, to consummate the
transactions to be performed by the Owner Trustee as contemplated by
the Trust Agreement, and to enter into and to take all actions
required of it under the Trust Agreement;
19
(iii) the Trust Agreement has been duly executed and delivered by
the Owner Trustee, and is a valid and binding obligation of the Owner
Trustee. Each of the Agreements to which the Trust is a party, the
Notes and the Certificate have been duly executed and delivered on
behalf of the Trust by the Owner Trustee. The Certificates have been
duly authenticated by the Owner Trustee;
(iv) neither the execution, delivery and performance by the Owner
Trustee of the Trust Agreement, nor the consummation of any of the
transactions by the Owner Trustee contemplated thereby, is in
violation of the charters 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) neither the execution, delivery and performance by the Owner
Trustee of the Trust Agreement, nor the consummation of any of the
transactions by the Owner 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 Owner Trustee.
(m) The Representative shall have received an opinion of ▇▇▇▇▇▇
▇▇▇▇, LLP, special California counsel to the Company and AHFC, or of such
other California counsel satisfactory to the Representative, 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
the blank forms of retail installment sale and conditional sale contracts
specified therein (the "Contracts") comply, or complied when in use, with
all applicable disclosure requirements affecting the form and printed
content of the Contracts under the Federal Consumer Credit Protection Act,
15 U.S.C. Sections 1601 et seq. and Regulation Z issued pursuant thereto,
as interpreted in the Official Staff Commentary, and applicable California
disclosure laws affecting the form and printed content of the Contracts.
(n) The Representative shall have received one or more opinions
of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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
20
Trust is a party, to issue the Notes and the Certificates, to grant
the Collateral (as such term is defined in the Indenture) to the
Indenture Trustee as security for the Notes and to perform its
obligations under each of said documents;
(iii) the Trust has duly authorized the Basic Documents to which
the Trust is a party, the Certificates and the Notes, and when the
Certificates have been duly executed and authenticated by the Owner
Trustee and 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) 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;
(vii) 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);
21
(viii) 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;
(ix) 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;
(x) 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; and
(xi) 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 ▇▇▇▇▇▇ &
Bird 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") 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
22
the proceeds thereof to the Trust and (ii) Delaware reflecting the grant of
the security interest by the Trust in the Receivables and the proceeds
thereof to the Indenture Trustee.
(q) The Representative shall have received an opinion of ▇▇▇▇▇▇ &
Bird 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 ▇▇▇▇▇'▇ and S&P.
(s) On or prior to the Closing Date, the Certificates shall have
been issued to the Company.
(t) The Representative shall have received from ▇▇▇▇▇▇ & Bird 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 ▇▇▇▇▇'▇ or S&P 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 ▇▇▇▇▇
▇▇▇▇, 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
23
federal income tax attributes of the Notes as described in the Prospectus
under the heading "Material Income Tax Consequences."
(v) As of the Closing Date, the representations and warranties of
the Company and AHFC contained in the Basic Documents will be true and
correct.
The Company will furnish the Representative with such conformed copies
of such opinions, certificates, letters and documents as the Representative
reasonably requests.
The Representative may, in its sole discretion, waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
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, each
Prospectus, or any amendment or supplement thereto or in any information
contained in any underwriter free writing prospectus which information (i)
is Permitted Information, (ii) is also included in the Preliminary
Prospectus (other than Underwriter Information) and to which AHFC has
consented in writing to be included in such underwriter free writing
prospectus, or (iii) has been provided by the Company or AHFC to the
Representative specifically for inclusion in any such underwriter free
writing prospectus, 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 the Underwriter
Information (as defined in subsection (b) below).
(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, each 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
24
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 furnished on behalf of
each Underwriter: in the Final Prospectus, the concession and reallowance
figures appearing in the third paragraph under the caption "Underwriting"
and each Prospectus, the information contained in the third paragraph, the
second sentence of the fifth paragraph, and the seventh paragraph under the
caption "Underwriting" (collectively, the "Underwriter Information").
(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; provided, however, an indemnified party
shall have the right to employ its own counsel in any such action, but the
fees, expenses and other charges of such counsel for the indemnified party
will be at the expense of such indemnified party unless a conflict or
potential conflict exists (based upon advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which
case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party). 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 (i) an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of the indemnified party.
25
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Notes or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one hand
and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim
which is the subject of this subsection (d). Notwithstanding the provisions
of this subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company or AHFC under this Section
shall be in addition to any liability which the Company or AHFC may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the meaning of the
Act; and the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each director
of the Company or AHFC, to each officer of the Company and AHFC who has
signed the Registration Statement and to each person, if any, who controls
the Company or AHFC within the meaning of the Act.
26
8. Absence of Fiduciary Relationship. The Company acknowledges and
agrees that the Underwriters are acting solely in the capacity of an arm's
length contractual counterparty to the Company and AHFC with respect to the
offering of the Notes contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company, AHFC or any other person.
Additionally, neither the Representative nor any other Underwriter is advising
the Company, AHFC or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. Each of the Company and
AHFC shall consult with its own advisors concerning such matters and shall be
responsible for making their own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Company or AHFC with respect thereto. Any
review by the Underwriters of the Company, AHFC, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely
for the benefit of the Underwriters and shall not be on behalf of the Company or
AHFC.
9. 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 10. 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.
10. 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 9 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
27
this Agreement pursuant to Section 9 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.
11. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered by hand or overnight
delivery service (FedEx or United Parcel Service) or sent by facsimile and
confirmed to the Representative at Barclays Capital Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS Syndicate & Trading (facsimile
number (▇▇▇) ▇▇▇-▇▇▇▇), or, if sent to the Company, will be mailed, delivered by
hand or overnight delivery service (FedEx or United Parcel Service) or sent by
facsimile transmission and confirmed to it at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), and if
to AHFC, will be mailed, delivered by hand or overnight delivery service (FedEx
or United Parcel Service) or sent by facsimile transmission and confirmed to it
at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇,
(facsimile: (▇▇▇) ▇▇▇-▇▇▇▇); provided that any notice to an Underwriter pursuant
to Section 7 will be mailed, delivered by hand or overnight delivery service
(FedEx or United Parcel Service) or sent by facsimile and confirmed to such
Underwriter.
12. 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.
13. 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 10, and no other
person will have any right or obligation hereunder.
14. 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.
15. 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.
16. Applicable Law; Submission to Jurisdiction.
28
(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]
29
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to each of the Company
and AHFC one of the counterparts hereof, whereupon it will become a binding
agreement between the Company, AHFC and the several Underwriters in accordance
with its terms.
Very truly yours,
AMERICAN HONDA
RECEIVABLES CORP.
BY:
-------------------------------------
NAME:
TITLE:
AMERICAN HONDA
FINANCE CORPORATION
BY:
-------------------------------------
NAME:
TITLE:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
BARCLAYS CAPITAL INC., acting on behalf of itself
and as the Representative of the several Underwriters
BY:
-------------------------------------
NAME:
TITLE:
SCHEDULE A
Amount of Class Amount of Class Amount of Class Amount of Class
Underwriter A-1 Notes A-2 Notes A-3 Notes A-4 Notes
---------------------------------- --------------- --------------- --------------- ---------------
Barclays Capital Inc. $168,751,000 $178,200,000 $185,400,000 $122,400,000
Citigroup Global Markets Inc. $150,001,000 $158,400,000 $164,800,000 $108,800,000
Banc of America Securities LLC $ 14,062,000 $ 14,850,000 $ 15,450,000 $ 10,200,000
Credit Suisse Securities (USA) LLC $ 14,062,000 $ 14,850,000 $ 15,450,000 $ 10,200,000
Greenwich Capital Markets, Inc $ 14,062,000 $ 14,850,000 $ 15,450,000 $ 10,200,000
Wachovia Capital Markets, LLC $ 14,062,000 $ 14,850,000 $ 15,450,000 $ 10,200,000
------------ ------------ ------------ ------------
Total: $375,000,000 $396,000,000 $412,000,000 $272,000,000
============ ============ ============ ============
A-1
