EXECUTION COPY
$1,004,250,000
HONDA AUTO RECEIVABLES 2002-3 OWNER TRUST
$285,500,000 1.8225% ASSET BACKED NOTES, CLASS A-1
$261,000,000 2.26% ASSET BACKED NOTES, CLASS A-2
$290,000,000 3.00% ASSET BACKED NOTES, CLASS A-3
$167,750,000 3.61% ASSET BACKED NOTES, CLASS A-4
AMERICAN HONDA RECEIVABLES CORP.
UNDERWRITING AGREEMENT
July 16, 2002
Banc of America Securities LLC,
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 2002-3 Owner Trust (the "Trust") to issue and
sell $285,500,000 aggregate principal amount of 1.8225% Asset Backed Notes,
Class A-1 (the "Class A-1 Notes"), $261,000,000 aggregate principal amount of
2.26% Asset Backed Notes, Class A-2 (the "Class A-2 Notes"), $290,000,000
aggregate principal amount of 3.00% Asset Backed Notes, Class A-3 (the "Class
A-3 Notes") and $167,750,000 aggregate principal amount of 3.61% 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 July 1, 2002 (the
"Indenture"), between the Trust and U.S. Bank National Association (the
"Indenture Trustee").
Concurrently with the issuance and sale of the Notes as contemplated
herein, the Trust will issue $25,750,000.95 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 July 24, 2002 (the "Trust Agreement"), between the
Company and Chase Manhattan Bank USA, 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 July 1, 2002 (the "Cutoff
Date"), and with respect to Simple Interest Receivables, certain monies due or
received thereunder on or after the Cutoff Date, such Receivables to be sold to
the Trust
by the Company and to be serviced for the Trust by American Honda Finance
Corporation ("AHFC" or, in its capacity as servicer, the "Servicer").
Capitalized terms used but not defined herein have the meanings ascribed thereto
in the Sale and Servicing Agreement, to be dated as of July 1, 2002 (the "Sale
and Servicing Agreement"), by and among the Trust, the Company and the Servicer
or, if not defined therein, in the Indenture, the Trust Agreement or the
Receivables Purchase Agreement, to be dated as of July 1, 2002 between AHFC and
the Company (the "Receivables Purchase Agreement"), as the case may be. As used
herein, "Basic Documents" shall have the meaning specified in the Sale and
Servicing Agreement. The Company hereby agrees with the several Underwriters
named in Schedule A hereto (collectively, the "Underwriters") as follows:
2. Representations and Warranties of the Company and AHFC. The Company and
AHFC, jointly and severally, represent and warrant to, and agree with, the
several Underwriters that:
(a) A registration statement on Form S-3 (No. 333-71022), including a
prospectus, relating to the Notes has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective. Such
registration statement, as amended as of the date of the Agreement is
hereinafter referred to as the "Registration Statement," and the prospectus
included in such Registration Statement, as supplemented to reflect the
terms of the Notes as first filed with the Commission after the date of
this Agreement pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Securities Act of 1933, as amended (the "Act"),
including all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus."
(b) On the effective date of the Registration Statement relating to the
Notes, such Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the Commission
promulgated under the Act (the "Rules and Regulations") and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and on the date of this Agreement, the Registration
Statement conforms, and at the time of the filing of the Prospectus in
accordance with Rule 424(b), the Registration Statement and the Prospectus
will conform in all respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents includes or will include any
untrue statement of a material fact or omits or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The preceding sentence does not apply to
statements in or omissions from the Registration Statement or the
Prospectus based upon written information furnished to the Company by any
Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information is that
described as such in Section 7(b).
(c) The Notes are "asset backed securities" within the meaning of, and
satisfy the requirements for use of, Form S-3 under the Act.
(d) The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are filed with
the Commission,
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complied and will comply in all material respects with the requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the rules and regulations of the Commission thereunder.
(e) The Company has caused to be filed with the Commission on July 16,
2002 the Current Report on Form 8-K with respect to the Term Sheet dated
July 16, 2002 relating to the Notes (the "Term Sheet").
(f) Each of the Company and AHFC has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
California, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
each of the Company and AHFC is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification.
(g) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be obtained or
made by the Company, AHFC or the Trust for the consummation of the
transactions contemplated by this Agreement and the Basic Documents in
connection with the issuance of the Notes and the Certificates and the sale
by the Company of the Notes, except such as have been obtained and made
under the Act, such as may be required under state securities laws and the
filing of any financing statements required to perfect the Company's, the
Trust's and the Indenture Trustee's interest in the Receivables, which
financing statements will be filed in the appropriate offices prior to the
Closing Date (as such term is defined in Section 3).
(h) Neither the Company nor AHFC is in violation of its Articles of
Incorporation or By-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any agreement
or instrument to which it is a party or by which it or its properties are
bound which could have a material adverse effect on the transactions
contemplated herein or in the Basic Documents. The execution, delivery and
performance of this Agreement and the Basic Documents by the Company and
AHFC, and the issuance of the Notes and the Certificates and the sale by
the Company of the Notes and the compliance by the Company and AHFC with
the terms and provisions hereof and thereof will not, subject to obtaining
any consents or approvals as may be required under the securities or "blue
sky" laws of various jurisdictions, result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any statute,
rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or AHFC or any of
their respective properties, or any agreement or instrument to which the
Company or AHFC is a party or by which the Company or AHFC is bound or to
which any of the properties of the Company or AHFC is subject, or the
Articles of Incorporation or By-laws of the Company and AHFC, and the
Company has full power and authority to authorize the issuance of the Notes
and the Certificates and to sell the Notes as contemplated by this
Agreement, the Indenture and the Trust Agreement, and each of the Company
and AHFC
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has full power and authority to enter into this Agreement and the Basic
Documents and to consummate the transactions contemplated hereby and
thereby.
(i) On the Closing Date, the Company will have directed the Owner
Trustee to authenticate and execute the Certificates and, when delivered
and paid for pursuant to the Trust Agreement, the Certificates will have
been duly issued and delivered and will constitute valid and legally
binding obligations of the Trust, entitled to the benefits provided in the
Trust Agreement and enforceable in accordance with their terms.
(j) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company or AHFC or
any of their respective properties that, if determined adversely to the
Company or AHFC, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business or results
of operations of the Company or AHFC, respectively, or would materially and
adversely affect the ability of the Company or AHFC to perform its
obligations under this Agreement or the other Basic Documents to which it
is a party, or which are otherwise material in the context of the issuance
and sale of the Notes or the issuance of the Certificates; and no such
actions, suits or proceedings are threatened or, to the Company's or AHFC's
knowledge, contemplated.
(k) As of the Closing Date, the representations and warranties of the
Company and AHFC contained in the Basic Documents will be true and correct.
(l) This Agreement has been duly authorized, executed and delivered by
each of the Company and AHFC.
(m) The Company has authorized the conveyance of the Receivables to the
Trust, and, as of the Closing Date, the Company has directed the Trust to
execute and issue the Notes and the Certificates and to sell the Notes.
(n) The Company's assignment and delivery of the Receivables to the
Trust as of the Closing Date will vest in the Trust all of the Company's
right, title and interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
(o) The Trust's assignment of the Receivables to the Indenture Trustee
pursuant to the Indenture will vest in the Indenture Trustee, for the
benefit of the Noteholders, a first priority perfected security interest
therein, subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
(p) The computer tape of the Receivables created as of July 1, 2002,
and made available to the Representative by the Servicer was complete and
accurate as of the date thereof and includes an identifying description of
the Receivables that are listed on Schedule A to the Sale and Servicing
Agreement.
(q) Any taxes, fees and other governmental charges in connection with
the execution, delivery and performance of this Agreement, the Basic
Documents, the Notes and the Certificates and any other agreements
contemplated herein or therein shall have
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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,
99.81852% of the principal amount thereof; (iii) the Class A-3 Notes, 99.77778%
of the principal amount thereof; and (iv) the Class A-4 Notes, 99.74798% of the
principal amount thereof, the respective principal amounts of each Class of the
Notes set forth opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price, the Notes
of each Class in the form of one or more permanent global securities in
definitive form (the "Global Notes") deposited with the Indenture Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Notes will be
held only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Notes shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account in New York previously designated to the Representative
by the Company at a bank acceptable to the Representative at the offices of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, Los Angeles, California at 10:00 A.M., New York City time,
on July 24, 2002, or at such other time not later than seven full business days
thereafter as the Representative and the Company determine, such time being
herein referred to as the "Closing Date", against delivery to the Indenture
Trustee as custodian for DTC of the Global Notes representing all of the Notes.
The Global Notes will be made available for checking at the above office of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP at least 24 hours prior to the Closing Date.
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The Company will deliver the Certificates to the above office of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ 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 Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the parties hereto have agreed that the Closing
Date will be not later than July 24, 2002, unless otherwise agreed to as
described above.
4. Offering by Underwriters. It is understood that, the several
Underwriters propose to offer the Notes for sale to the public as set forth in
the Prospectus, and each Underwriter represents, warrants and covenants,
severally and not jointly, to the Company and AHFC that: (i) it has not offered
or sold and, prior to the expiry of a period of six months from the Closing
Date, will not offer or sell any Notes to person 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 otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offer 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 ("FSMA") with respect to anything done by it in relation to the
Notes in, from or otherwise involving the United Kingdom; and (iii) it has only
communicated or caused to be communicated and will only communicate or cause to
be communicated any invitation or inducement to engage in investment activity
within the meaning of Section 21 of the FSMA received by it in connection with
the issue or sale of any Notes in circumstances in which section 21(1) of the
FSMA does not apply to the Issuer.
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
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occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made not misleading, or if
it is necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify the Representative of such event and will
promptly prepare and file with the Commission (subject to the
Representative's prior review pursuant to Section 5(b)), at its own
expense, an amendment or supplement which will correct such statement or
omission, or an amendment which will effect such compliance. Neither the
Representative's consent to, nor the Underwriters delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6.
(d) The Company will cause the Trust to make generally available to
Noteholders, as soon as practicable, but no later than sixteen months after
the date hereof, an earnings statement of the Trust covering a period of at
least twelve consecutive months beginning after the later of (i) the
effective date of the registration statement relating to the Notes and (ii)
the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of this
Agreement and, in each case, satisfying the provisions of Section 11(a) of
the Act (including Rule 158 promulgated thereunder).
(e) The Company will furnish to the Underwriters copies of the
Prospectus, the Registration Statement and all amendments and supplements
to such documents, in each case as soon as available and in such quantities
as the Representative reasonably requests. The Prospectus shall be
furnished on or prior to 3:00 P.M., New York time, on the business day
following the execution and delivery of this Agreement. All other such
documents shall be so furnished as soon as available. The Company will pay
the expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will arrange for the qualification of the Notes for
offering and sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Representative may reasonably
designate and will continue such qualifications in effect so long as
required for the distribution of the Notes; provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation to do business or to file a general consent to service of
process in any such jurisdiction.
(g) For a period from the date of this Agreement until the retirement
of the Notes (i) the Company will furnish to the Representative and, upon
request, to each of the other Underwriters, copies of each certificate and
the annual statements of compliance delivered to the Indenture Trustee
pursuant to Section 3.09 of the Indenture and Sections 3.10 and 3.11 of the
Sale and Servicing Agreement and the annual independent 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
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Indenture Trustee, the Owner Trustee or the Noteholders under the
Indenture, the Sale and Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Company will furnish to the
Representative by first-class mail as soon as practicable, (i) all
documents distributed, or caused to be distributed, by the Company to the
Noteholders, (ii) all documents filed or caused to be filed by the Company
with the Commission pursuant to the Exchange Act or any order of the
Commission thereunder and (iii) such other information in the possession of
the Company concerning the Trust as the Representative from time to time
may reasonably request.
(i) Subject to the provisions of Section 9 hereof, the Company will pay
all expenses incident to the performance of its obligations under this
Agreement and will reimburse the Underwriters (if and to the extent
incurred by them) for any filing fees and other expenses (including fees
and disbursements of counsel) incurred by them in connection with
qualification of the Notes for sale in jurisdictions that the
Representative may designate pursuant to Section 5(f) hereof and
determination of their eligibility for investment under the laws of such
jurisdictions as the Representative reasonably designates and the printing
of memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of the Notes, for any travel expenses of the
officers and employees of the Underwriters and any other expenses of the
Underwriters in connection with attending or hosting meetings with
prospective purchasers of the Notes and for expenses incurred in
distributing the Term Sheets and the Prospectus (including any amendments
and supplements thereto).
(j) To the extent, if any, that the rating provided with respect to the
Notes by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), Standard & Poor's, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's"), and
Fitch, Inc. ("Fitch" and, together with Standard & Poor's and Moody's, the
"Rating Agencies") is conditional upon the furnishing of documents or the
taking of any other action by the Company, the Company shall furnish such
documents and take any such other action.
(k) On or before the Closing Date, the Company and AHFC shall annotate
and indicate unambiguously in the computer records of the Company and AHFC
relating to the Receivables to show the Trust's absolute ownership of the
Receivables, and from and after the Closing Date neither the Company nor
AHFC shall take any action inconsistent with the Trust's ownership of such
Receivables, other than as permitted by the Sale and Servicing Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Notes on the Closing Date
will be subject to the accuracy of the representations and warranties on the
part of the Company and AHFC herein on the Closing Date, to the accuracy of the
statements of Company and AHFC officers made 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:
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(a) The Representative shall have received a letter, dated the date
hereof or the Closing Date, of KPMG Peat Marwick LLP, in form and substance
satisfactory to the Representative and counsel for the Underwriters,
confirming that they are independent public accountants within the meaning
of the Act and the applicable Rules and Regulations and stating in effect
that (i) they have performed certain specified procedures as a result of
which they determined that certain information of an accounting, financial
or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Trust, AHFC and the Company) set forth in the Registration Statement, the
Term Sheet and the Prospectus (and any supplements thereto), agrees with
the accounting records of the Trust, AHFC and the Company, excluding any
questions of legal interpretation, and (ii) they have performed certain
specified procedures with respect to the Receivables.
(b) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representative, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in or affecting particularly the business,
properties, condition (financial or otherwise) or results of operations of
the Company or AHFC which, in the judgment of a majority in interest of the
Underwriters (including the Representative), materially impairs the
investment quality of each Class of the Notes or makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for each Class of the Notes; (ii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange;
(iii) any banking moratorium declared by Federal, California or New York
authorities; or (iv) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters (including the
Representative), the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for each Class
of the Notes.
(d) The Representative shall have received an opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Company and AHFC, dated the Closing
Date and satisfactory in form and substance to the Representative and
counsel for the Underwriters, to the effect that:
(i) the Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of California,
with full corporate power and authority to own its properties and
conduct its business as described in the Prospectus; the Company is
duly qualified to do business and is in good standing in each
jurisdiction in which its ownership or lease of property or the conduct
of its business requires such qualification, except where the failure
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to be so qualified and in good standing would not have a material
adverse effect on its obligations under the Basic Documents;
(ii) AHFC has been duly incorporated and is an existing
corporation in good standing under the laws of the State of California,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; AHFC is duly qualified to
do business and is in good standing in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified and in
good standing would not have a material adverse effect on its
obligations under the Basic Documents;
(iii) each of the direction by the Company to the Indenture
Trustee to authenticate the Notes and the direction by the Company to
the Owner Trustee to execute the Notes has been duly authorized by the
Company and, when the Notes have been duly executed and delivered by
the Owner Trustee and, when authenticated by the Indenture Trustee in
accordance with the terms of the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement, will be duly and
validly issued and outstanding and will be entitled to the benefits of
the Indenture;
(iv) the direction by the Company to the Owner Trustee to
authenticate and execute the Certificates has been duly authorized by
the Company;
(v) each Basic Document to which the Company or AHFC is a party
has been duly authorized, executed and delivered by the Company and
AHFC, respectively;
(vi) no consent, approval, authorization or order of, or filing
with any governmental agency or body or any court is required for the
execution, delivery and performance by the Company of this Agreement
and the Basic Documents to which it is a party, for the execution,
delivery and performance by AHFC of the Basic Documents to which it is
a party or for the consummation of the transactions contemplated by
this Agreement or the Basic Documents, except for (A) such as have been
obtained and made under the Act, (B) such as may be required under
state securities laws and (C) such authorizations, approvals or
consents specified in such opinion as are in full force and effect as
of the Effective Date and the Closing Date;
(vii) the execution, delivery and performance of this Agreement
and the Basic Documents by the Company and the execution, delivery and
performance of the Basic Documents by AHFC will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of AHFC or the
Company pursuant to the terms of the Certificate of Incorporation or
the By-Laws of AHFC or the Company or, to the best of such counsel's
knowledge and information, any statute, rule, regulation or
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order of any governmental agency or body, or any court having
jurisdiction over AHFC or the Company or their respective properties,
or any agreement or instrument known to such counsel after due
investigation to which AHFC or the Company is a party or by which AHFC
or the Company or any of their respective properties is bound;
(viii) such counsel has no reason to believe that the
Registration Statement or any amendment thereto, as of its effective
date or as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any amendment or supplement
thereto, as of its issue date or as of such Closing Date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; the Registration Statement and the
Prospectus complies in all material respects with the requirements of
the Act and the rules and regulations promulgated thereunder; and such
counsel does not know of any legal or governmental proceedings required
to be described in the Registration Statement or the Prospectus which
are not described as required or of any contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
which are not described and filed as required; it being understood that
such counsel need express no opinion as to the financial statements or
other financial, numerical, statistical and quantitative information
contained in the Registration Statement or the Prospectus;
(ix) the statements in the Registration Statement under the
heading "CERTAIN LEGAL ASPECTS OF THE RECEIVABLES", to the extent they
constitute statements of matters of law or legal conclusions with
respect thereto, are correct in all material respects;
(x) such counsel is familiar with AHFC's standard operating
procedures relating to AHFC's acquisition of a perfected first priority
security interest in the vehicles financed by AHFC pursuant to retail
installment sale contracts in the ordinary course of AHFC's business;
assuming that AHFC's standard procedures are followed with respect to
the perfection of security interests in the Financed Vehicles (and such
counsel has no reason to believe that AHFC has not or will not continue
to follow its standard procedures in connection with the perfection of
security interests in the Financed Vehicles), AHFC has acquired or will
acquire a perfected first priority security interest in the Financed
Vehicles;
(xi) assuming that the Receivables are in substantially one of
the forms attached to such opinion, the Receivables are "chattel paper"
as defined in the UCC as in effect in the States of New York and
California; and
-11-
(xii) immediately prior to the sale of Receivables by AHFC to the
Company pursuant to the Receivables Purchase Agreement, AHFC was the
sole owner of all right, title and interest in, to and under the
Receivables and the other property to be transferred by it to the
Company. AHFC has full power and authority to sell and assign the
property to be sold and assigned to the Company pursuant to the
Receivables Purchase Agreement and has duly authorized such sale and
assignment to the Company by all necessary corporate action.
(e) The Representative shall have received an opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Company and AHFC, dated the Closing
Date and satisfactory in form and substance to the Representative and
counsel for the Underwriters, to the effect that:
(i) the Receivables Purchase Agreement either (A) transfers an
ownership interest in the Receivables and the proceeds thereof (subject
to Section 9-315 of the UCC as in effect in the State of California
(the "California UCC")) from AHFC to the Company or (B) creates a valid
security interest in AHFC's rights in the Receivables and the proceeds
thereof (subject to Section 9-315 of the California UCC) as security
for the obligations of AHFC thereunder;
(ii) the Sale and Servicing Agreement either (A) transfers an
ownership interest in the Receivables and the proceeds thereof (subject
to Section 9-315 of the California UCC) from the Company to the Trust
or (B) creates a valid security interest in the Company's rights in the
Receivables and the proceeds thereof (subject to Section 9-315 of the
California UCC) as security for the obligations of the Company
thereunder;
(iii) the Indenture creates a valid security interest in the
Trust's rights in the Receivables and the proceeds thereof (subject to
Section 9-315 of the California UCC) as security for the obligations of
the Trust thereunder;
(iv) the financing statement on Form UCC-1 naming AHFC as debtor
is in appropriate form for filing in the relevant filing office under
the California UCC. Upon the filing of such financing Statement in the
relevant filing office, the security interest in favor of the Company
in the Receivables and proceeds thereof will be perfected, and no other
security interest of any other creditor of AHFC will be equal or prior
to such security interest;
(v) the financing statement on Form UCC-1 naming the Company as
debtor is in appropriate form for filing in the relevant filing office
under the California UCC. Upon the filing of such financing statement
in the relevant filing office, the security interest in favor of the
Owner Trustee in the Receivables and proceeds thereof will be
perfected, and no other security interest of any other creditor of the
Company will be equal or prior to such security interest;
-12-
(vi) the provisions of the Indenture are effective to create in
favor of the Indenture Trustee, a valid security interest (as such term
is defined in Section 1-201 of the California UCC) in the Receivables
and proceeds thereof to secure payment of the Notes;
(vii) the Trust Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act");
(viii) the Indenture has been duly qualified under the Trust
Indenture Act;
(ix) the Registration Statement was declared effective under the
Act as of the date specified in such opinion, the Prospectus either was
filed with the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was included
in the Registration Statement, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereof, as of their
respective effective or issue dates, complies as to form in all
material respects with the requirements of the Act and the Rules and
Regulations;
(x) each of the Receivables Purchase Agreement, the Control
Agreement, the Sale and Servicing Agreement and the Administration
Agreement constitutes the legal, valid and binding agreement of the
Company and AHFC, in each case as to those documents to which it is a
party, enforceable against the Company and AHFC in accordance with
their terms (subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws affecting
creditors' rights generally from time to time in effect, and subject,
as to enforceability, to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or
at law) except, as applicable, that such counsel need not express an
opinion with respect to indemnification or contribution provisions
which may be deemed to be in violation of the public policy underlying
any law or regulation;
(xi) assuming due authorization, execution and delivery by the
Indenture Trustee and the Owner Trustee, the Indenture constitutes the
legal, valid and binding agreement of the Trust, enforceable against
the Trust in accordance with its terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other similar laws affecting creditors' rights generally from time
to time in effect, and subject, as to enforceability, to general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law) except, as applicable,
that such counsel need not express an opinion with respect to
indemnification or contribution provisions which may be deemed to be in
violation of the public policy underlying any law or regulation;
-13-
(xii) neither the Trust nor the Company is and, after giving
effect to the issuance and sale of the Notes and the Certificates and
the application of the proceeds thereof, as described in the
Prospectus, neither the Trust nor the Company will be, an "investment
company" as defined in the Investment Company Act; and
(xiii) this Agreement has been duly authorized, executed and
delivered by the Company and AHFC.
(f) The Representative shall have received an opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, special tax counsel for the Company, dated the Closing Date
and satisfactory in form and substance to the Representative and counsel
for the Underwriters, to the effect that for federal income tax purposes
(i) the Notes will be characterized as indebtedness of the Trust that is
secured by the Receivables, (ii) the Trust will not be classified as an
association (or publicly traded partnership) taxable as a corporation and
(iii) the statements set forth in the Prospectus under the headings
"SUMMARY--ERISA Considerations", "ERISA CONSIDERATIONS", "SUMMARY--Tax
Status", "MATERIAL INCOME TAX CONSEQUENCES" and Annex A to the Prospectus,
"Global Clearance, Settlement and Tax Documentation Procedures-Certain U.S.
Federal Income Tax Documentation Requirements", to the extent such
statements constitute matters of law or legal conclusions with respect
thereto, are correct in all material respects.
(g) The Representative shall have received an opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, special tax counsel for the Company, dated the Closing Date
and satisfactory in form and substance to the Representative and counsel
for the Underwriters, to the effect that for California state franchise and
California state income tax purposes (i) the Notes will be characterized as
debt and (ii) the Trust will not be classified as an association (or
publicly traded partnership) taxable as a corporation.
(h) The Representative shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the validity of the Notes, the Registration
Statement, the Prospectus and other related matters as the Representative
may require, and the Company shall have furnished to such counsel such
documents as it may request for the purpose of enabling it to pass upon
such matters.
(i) The Representative shall have received a certificate, dated the
Closing Date, of the Chairman of the Board, the President or any
Vice-President and a principal financial or accounting officer of each of
the Company and AHFC in which such officers, to the best of their knowledge
after reasonable investigation, shall state that: the representations and
warranties of the Company and AHFC in this Agreement are true and correct
in all material respects; the Company 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
-14-
or AHFC, as applicable, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such agreements
at or prior to the Closing Date; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission; and,
subsequent to the date of the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or otherwise),
business, properties or results of operations of the Company or AHFC or
their respective businesses except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(j) The Representative shall have received an opinion of ▇▇▇▇▇▇ &
Whitney LLP, counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters, substantially to the effect that:
(i) the Indenture Trustee is a national banking association
validly existing under the laws of the United States of America;
(ii) the Indenture Trustee has the requisite power and authority
to execute and deliver the Indenture, the Sale and Servicing Agreement,
the Control Agreement and the Administration Agreement and perform its
obligations under each of the Agreements, and has taken all necessary
action to authorize the execution and delivery of the Indenture, the
Sale and Servicing Agreement, the Control Agreement and the
Administration Agreement and performance by it of each of the
Agreements;
(iii) no approval, authorization or other action by or filing
with any governmental authority of the United States of America, or of
the State of New York, having jurisdiction over the banking or trust
powers of the Indenture Trustee is required in connection with the
execution and delivery by the Indenture Trustee of the Indenture, the
Sale and Servicing Agreement, the Control Agreement and the
Administration Agreement;
(iv) the execution and delivery of the Indenture, the Sale and
Servicing Agreement, the Control Agreement and the Administration
Agreement and the performance by the Indenture Trustee of the
respective terms of the Agreements, do not conflict with or result in a
violation of the Articles of Incorporation or By-Laws of the Indenture
Trustee or the applicable federal laws of the United States of America
or of the State of New York having jurisdiction over the banking or
trust powers of the Indenture Trustee;
(v) each of the Indenture, the Sale and Servicing Agreement, the
Control Agreement and the Administration Agreement has been duly
executed and delivered by the Indenture Trustee and each of the
Agreements constitutes a legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee in
accordance with its respective terms, except that certain of such
obligations may be enforceable solely against the Trust Estate and
except
-15-
that such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation, or other similar laws affecting
the enforcement of creditors' rights generally, and by general principles
of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(vi) the Notes delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of
the Indenture.
(k) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, counsel to the Owner Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters, to the effect that:
(i) the Owner Trustee has been duly incorporated and is validly
existing as a national banking association under the laws of the United
States of America;
(ii) the Owner Trustee has the power and authority to execute,
deliver and perform its obligations under the Trust Agreement;
(iii) the Trust Agreement has been duly authorized, executed and
delivered by the Owner Trustee and constitutes the legal, valid and
binding obligation of the Owner Trustee, enforceable against the Owner
Trustee in accordance with its terms (subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws affecting creditors' rights generally from time to time in
effect, and subject, as to enforceability, to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) the execution and delivery by the Owner Trustee of the Trust
Agreement and the performance by the Owner Trustee of its obligations
thereunder do not conflict with, result in a breach or violation of, or
constitute a default under the Articles of Association or By-laws of
the Owner Trustee or of any law, governmental rule or regulation of the
State of Delaware or of the United States of America governing the
banking or trust powers of the Owner Trustee; and
(v) the execution, delivery and performance by the Owner Trustee
of the Trust Agreement does not require any consent, approval or
authorization of, or any registration or filing with, any Delaware or
United States federal governmental authority having jurisdiction over
the banking or trust powers of the Owner Trustee, other than those
consents, approvals or authorizations as have been obtained and the
filing of the Certificate of Trust with the Secretary of State of the
State of Delaware, which have been duly filed.
(l) [Reserved]
-16-
(m) The Representative shall have received one or more opinions of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Trust, dated the
Closing Date and satisfactory in form and substance to the Representative
and counsel for the Underwriters, to the effect that:
(i) the Trust has been duly formed and is validly existing and in
good standing as a business trust under the Delaware Business Trust
Act, 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;
(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;
-17-
(vii) assuming for federal income tax purposes that the Trust
will not be classified as an association or a publicly traded
partnership taxable as a corporation, and that the Notes will be
characterized as indebtedness for federal income tax purposes, then the
Trust will not be subject to any franchise or income tax under the laws
of the State of Delaware, and the Notes will also be characterized as
indebtedness for Delaware tax purposes;
(viii) the Trust Agreement is the legal, valid and binding
obligation of the parties thereto, enforceable against such parties, in
accordance with its terms (subject to such exclusions and exceptions as
are customary in opinions of this type);
(ix) under the Delaware Act, the Trust is a separate legal entity
and, assuming that the Sale and Servicing Agreement conveys good title
to the Trust property to the Trust as a true sale and not as a security
arrangement, the Trust rather than the Certificateholders will hold
whatever title to the Trust property as may be conveyed to it from time
to time pursuant to the Sale and Servicing Agreement, except to the
extent that the Trust has taken action to dispose of or otherwise
transfer or encumber any part of the Trust property;
(x) under 3805(b) of the Delaware Act, no creditor of any
Certificateholder (as defined in the Trust Agreement) shall have any
right to obtain possession of, otherwise exercise legal or equitable
remedies with respect to, the property of the Trust except in
accordance with the terms of the Trust Agreement;
(xi) under 3805(c) of the Delaware Act, except to the extent
otherwise provided in the Trust Agreement, a Certificateholder
(including the Company in its capacity as Depositor under the Trust
Agreement) has no interest in specific Receivables;
(xii) under 3808(a) and (b) of the Delaware Act, the Trust may
not be terminated or revoked by any Certificateholder, and the
dissolution, termination or bankruptcy of any Certificateholder shall
not result in the termination or dissolution of the Trust, except to
the extent otherwise provided in the Trust Agreement.
(n) The Representative shall have received an opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for
the Underwriters, (i) with respect to the characterization of the transfer
of the Receivables by AHFC to the Company and (ii) to the effect that
should AHFC become the debtor in a case under Title 11 of the United States
Code (the "Bankruptcy Code") and the Company would not otherwise properly
be a debtor in a case under the Bankruptcy Code, and if the matter were
properly briefed and presented to a court exercising bankruptcy
jurisdiction, the court, exercising reasonable judgment after full
consideration of all relevant factors, should not order, over the objection
of the Certificate holders or the Noteholders, the substantive
consolidation of
-18-
the assets and liabilities of the Company with those of AHFC and such
opinion shall be in substantially the form previously discussed with the
Representative and counsel for the Underwriters and in any event
satisfactory in form and in substance to the Representative and counsel for
the Underwriters.
(o) The Representative shall have received evidence satisfactory to it
and its counsel that, on or before the Closing Date, UCC-1 financing
statements have been or are being filed in the office of the Secretary of
State of the state of (i) California reflecting the transfer of the
interest of AHFC in the Receivables and the proceeds thereof to the Company
and the transfer of the interest of the Company in the Receivables and the
proceeds thereof to the Trust and (ii) Delaware reflecting the grant of the
security interest by the Trust in the Receivables and the proceeds thereof
to the Indenture Trustee.
(p) The Representative shall have received an opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and the counsel
for the Underwriters to the effect that (i) the provisions of the Indenture
are effective to create a valid security interest in favor of the Indenture
Trustee, to secure payment of the Notes, in all "securities entitlements"
(as defined in Section 8-102(a)(17) of the New York UCC) with respect to
"financial assets" (as defined in Section 8-102(a)(9) of the New York UCC)
now or hereafter credited to the Reserve Account (such securities
entitlements, the "Securities Entitlements"), (ii) the provisions of the
control agreement for purposes of Article 8 of the New York UCC are
effective to perfect the security interest of the Indenture Trustee in the
Securities Entitlements and (iii) no security interest of any other
creditor of the Trust will be prior to the security interest of the
Indenture Trustee in such Securities Entitlements.
(q) Each Class of the Notes shall have been rated in the highest
rating category by each of ▇▇▇▇▇'▇, Fitch and Standard & Poor's.
(r) On or prior to the Closing Date, the Certificates shall have been
issued to the Company.
(s) The Representative shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇'▇ or Fitch in connection
with the rating of any Class of the Notes, as if each such opinion were
addressed to the Underwriters.
(t) The Representative shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇,
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
-19-
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 FEDERAL INCOME TAX CONSEQUENCES".
(u) As of the Closing Date, the representations and warranties of the
Company and AHFC contained in the Basic Documents will be true and correct.
The Company will furnish the Representative with such conformed copies of
such opinions, certificates, letters and documents as the Representative
reasonably requests.
The Representative may, in its sole discretion, waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Company and AHFC will, jointly and severally, indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such underwriter may become
subject, under the Act, or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained or incorporated in the Registration Statement, the Term
Sheet, the Prospectus, or any amendment or supplement thereto or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
neither the Company nor AHFC will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company or AHFC by any
Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (b)
below; and provided, further that with respect to any untrue statement or
omission or alleged untrue statement or omission made in the Term Sheet,
the indemnity agreement contained in this subsection (a) shall not inure to
the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Notes concerned, to
the extent that the untrue statement or omission or alleged untrue
statement or omission was eliminated or remedied in the Prospectus, which
Prospectus was required to be delivered by such 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.
-20-
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and AHFC against any losses, claims, damages or
liabilities to which the Company or AHFC may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained or
incorporated in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Company or AHFC in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the third
paragraph under the caption "Underwriting" and the information contained in
the third paragraph, the second sentence of the fifth paragraph, and the
seventh paragraph under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof, but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof and
after acceptance by the indemnified party of such counsel, the indemnifying
party will not be liable to such indemnified party under this Section for
any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party if indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release
of such indemnified party from all liability on any claims that are the
subject matter of such action.
(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
-21-
indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Notes
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company or AHFC under this Section shall be
in addition to any liability which the Company or AHFC may otherwise have
and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company or AHFC, to each officer of the Company and AHFC who has signed the
Registration Statement and to each person, if any, who controls the Company
or AHFC within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their 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
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Company for the purchase of such Notes by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
nondefaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Notes that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate principal amount of
Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes that the Underwriters are obligated to purchase
on such Closing Date and arrangements satisfactory to the Representative and the
Company for the purchase of such Notes by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Company, except as provided in
Section 9. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or AHFC or their respective officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or the Company or AHFC or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Notes. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the Notes
by the Underwriters is not consummated, the Company shall remain responsible for
the expenses to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company, AHFC and the Underwriters pursuant to
Section 7 shall remain in effect. If the purchase of the Notes by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (ii), (iii) or (iv) of Section 6(c), the Company and
AHFC, jointly and severally, will reimburse the Underwriters for all out-of
pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Notes.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or sent by facsimile and
confirmed to the Representative at ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Global Structured Finance, (facsimile: (312)
974-8578), or, if sent to the Company, will be mailed, delivered or sent by
facsimile transmission and confirmed to it at ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), and
if to AHFC, will be mailed, delivered 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 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
-23-
liquidation proceedings or other proceedings under any Federal or state
bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all such
counterparts shall together constitute one and the same Agreement.
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.
-24-
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/ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇. ▇▇▇▇▇▇
Title: President
AMERICAN HONDA
FINANCE CORPORATION
By: /s/ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇. ▇▇▇▇▇▇
Title: President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
BANC OF AMERICA SECURITIES LLC, acting on behalf of itself
and as the Representative of the several Underwriters
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SCHEDULE A
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Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
Underwriter Notes Notes Notes Notes
-----------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $108,490,000 $99,180,000 $110,200,000 $63,745,000
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Deutsche Bank Securities Inc. 108,490,000 99,180,000 110,200,000 63,745,000
-----------------------------------------------------------------------------------------------------------------------
Banc One Capital Markets, Inc. 22,840,000 20,880,000 23,200,000 13,420,000
-----------------------------------------------------------------------------------------------------------------------
Barclays Capital Inc. 22,840,000 20,880,000 23,200,000 13,420,000
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▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 22,840,000 20,880,000 23,200,000 13,420,000
---------- ---------- ----------
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Total: $285,500,000 $261,000,000 $290,000,000 $167,750,000
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