EXHIBIT 1.1
EXECUTION COPY
$1,053,270,000
HONDA AUTO RECEIVABLES 2000-1 OWNER TRUST
$298,000,000 6.71125% ASSET BACKED NOTES, CLASS A-1
$240,000,000 6.650% ASSET BACKED NOTES, CLASS A-2
$386,000,000 6.620% ASSET BACKED NOTES, CLASS A-3
$129,270,000 6.670% ASSET BACKED NOTES, CLASS A-4
AMERICAN HONDA RECEIVABLES CORP.
UNDERWRITING AGREEMENT
October 17, 2000
J.P. Morgan Securities Inc.,
As Representative of the Several Underwriters
60 Wall Street
New York, NY 10260
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 2000-1 Owner Trust (the
"TRUST") to issue and sell $298,000,000 aggregate principal amount of
6.71125% Asset Backed Notes, Class A-1 (the "CLASS A-1 NOTES"), $240,000,000
aggregate principal amount of 6.650% Asset Backed Notes, Class A-2 (the
"CLASS A-2 NOTES"), $386,000,000 aggregate principal amount of 6.620% Asset
Backed Notes, Class A-3 (the "CLASS A-3 NOTES") and $129,270,000 aggregate
principal amount of 6.670% 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 October 1, 2000 (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 $46,755,487.15 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 as of October 1, 2000 (the "TRUST
AGREEMENT"), between the Company and Bankers Trust (Delaware), 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
October 1, 2000 (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 October 1, 2000 (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 October 1, 2000 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. 333-92827),
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;" a "preliminary
prospectus" means any form of prospectus, including any prospectus
supplement, relating to the Notes used prior to date of this
Agreement that is subject to completion.
(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 and the preliminary prospectus conform, and at the time of
the filing of the Prospectus in accordance with Rule 424(b), the
Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes or will include
any untrue statement of a material fact or omits or will omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading. The preceding
sentence does not apply to statements in or omissions from the
Registration Statement or the Prospectus based upon written
information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(b).
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(c) The Notes are "asset backed securities" within the
meaning of, and satisfy the requirements for use of, Form S-3 under
the Act.
(d) The documents incorporated by reference in the
Registration Statement and Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations of the Commission thereunder.
(e) The Company filed the preliminary prospectus
supplement relating to the Notes pursuant to and in accordance with
Rule 424(b).
(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
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which any of the properties of the Company or AHFC is subject, or
the Articles of Incorporation or By-laws of the Company and AHFC,
and the Company has full power and authority to authorize the
issuance of the Notes and the Certificates and to sell the Notes as
contemplated by this Agreement, the Indenture and the Trust
Agreement, and each of the Company and AHFC has full power and
authority to enter into this Agreement and the Basic Documents and
to consummate the transactions contemplated hereby and thereby.
(i) On the Closing Date, the Company will have directed
the Owner Trustee to authenticate and execute the Certificates and,
when delivered and paid for pursuant to the Trust Agreement, the
Certificates will have been duly issued and delivered and will
constitute valid and legally binding obligations of the Trust,
entitled to the benefits provided in the Trust Agreement and
enforceable in accordance with their terms.
(j) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Company or AHFC or any of their respective properties that, if
determined adversely to the Company or AHFC, would individually or
in the aggregate have a material adverse effect on the condition
(financial or other), business or results of operations of the
Company or AHFC, respectively, or would materially and adversely
affect the ability of the Company or AHFC to perform its obligations
under this Agreement or the other Basic Documents to which it is a
party, or which are otherwise material in the context of the
issuance and sale of the Notes or the issuance of the Certificates;
and no such actions, suits or proceedings are threatened or, to the
Company's or AHFC's knowledge, contemplated.
(k) As of the Closing Date, the representations and
warranties of the Company and AHFC contained in the Basic Documents
will be true and correct.
(l) This Agreement has been duly authorized, executed and
delivered by each of the Company and AHFC.
(m) The Company has authorized the conveyance of the
Receivables to the Trust, and, as of the Closing Date, the Company
has directed the Trust to execute and issue the Notes and the
Certificates and to sell the Notes.
(n) The Company's assignment and delivery of the
Receivables to the Trust as of the Closing Date will vest in the
Trust all of the Company's right, title and interest therein,
subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
(o) The Trust's assignment of the Receivables to the
Indenture Trustee pursuant to the Indenture will vest in the
Indenture Trustee, for the benefit of the 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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(p) The computer tape of the Receivables created as of
October 1, 2000, and made available to the Representative by the
Servicer was complete and accurate as of the date thereof and
includes an identifying description of the Receivables that are
listed on Schedule A to the Sale and Servicing Agreement.
(q) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of this
Agreement, the Basic Documents, the Notes and the Certificates and
any other agreements contemplated herein or therein shall have been
paid or will be paid by the Company at or prior to the Closing Date
to the extent then due.
(r) The consummation of the transactions contemplated by
this Agreement and the Basic Documents, and the fulfillment of the
terms hereof and thereof, will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, or result in the creation of any lien, charge or encumbrance
upon any of the property or assets of the Company or AHFC pursuant
to the terms of, any indenture, mortgage, deed of trust, loan
agreement, guarantee, lease financing agreement or similar agreement
or instrument under which the Company or AHFC is a debtor or
guarantor.
(s) The Company is not and, after giving effect to the
issuance of the Certificates and the offering and sale of the Notes
and the application of the proceeds thereof as described in the
Prospectus, will not be required to be registered as an "investment
company" as defined in the Investment Company Act of 1940, as
amended (the "INVESTMENT COMPANY ACT").
(t) In connection with the offering of the Notes in the
State of Florida, the Company and AHFC hereby certify that they have
complied with all provisions of Section 5.17.075 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, 99.875000% of the principal amount thereof; (ii) the Class
A-2 Notes, 99.821415% of the principal amount thereof; (iii) the Class A-3
Notes, 99.763969% of the principal amount thereof; and (iv) the Class A-4
Notes, 99.727383% 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
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account in New York previously designated to the Representative by the
Company at a bank acceptable to the Representative at the offices of Dewey
Ballantine LLP, Los Angeles, California, at 10:00 A.M., New York time, on
October 25, 2000, 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 Dewey Ballantine LLP at least 24 hours prior to the Closing
Date.
The Company will deliver the Certificates to the above office of
Dewey Ballantine 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 Dewey Ballantine 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 October 25, 2000, 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.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters:
(a) The Company will file the Prospectus, properly
completed, with the Commission pursuant to and in accordance with
subparagraph (2) (or, if applicable and if consented to by the
Representative, subparagraph (5)) of Rule 424(b) no later than the
second business day following the date it is first used. The Company
will advise the Representative promptly of any such filing pursuant
to Rule 424(b).
(b) The Company will advise the Representative promptly, in
writing, of any proposal to amend or supplement the Registration
Statement or the Prospectus and will not effect such amendment or
supplementation without the Representative's reasonable consent; and
the Company will also advise the Representative promptly of any
amendment or supplementation of the Registration Statement or the
Prospectus and of the institution by the Commission of any stop
order proceedings in respect of the Registration Statement and will
use its best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes
is required to be delivered under the Act in connection with sales
by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made not misleading, or
if it is necessary at any time to amend the Prospectus
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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 preliminary prospectus, 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
Indenture Trustee, the Owner Trustee or the Noteholders under the
Indenture, the Sale and Servicing Agreement or the other Basic
Documents.
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(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 preliminary prospectuses 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 Moody's Investors Service, Inc. ("MOODY'S"),
Standard & Poor's, a division of The McGraw-Hill 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:
(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
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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 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
Dewey Ballantine 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 to be so qualified
and in good standing would not have a material adverse
effect on its obligations under the Basic Documents;
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(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 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
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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
(xii) immediately prior to the sale of
Receivables by AHFC to the Company pursuant to the
Receivables Purchase Agreement, AHFC was the sole
-11-
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
Dewey Ballantine 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 9-306 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 9-306 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 9-306 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 9-306 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 9-306 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;
(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;
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(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;
(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
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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
Dewey Ballantine 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
Dewey Ballantine 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 Stroock &
Stroock & Lavan 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 or AHFC, as applicable, has complied with all
agreements and satisfied all conditions on
-14-
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
Dorsey & 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, to the effect that:
(i) the Indenture Trustee is a banking
association duly incorporated and validly existing under
the laws of the United States of America;
(ii) the Indenture Trustee has the full
corporate trust power to accept the office of indenture
trustee under the Indenture and to enter into and perform
its obligations under the Indenture, the Sale and
Servicing Agreement, the Control Agreement and the
Administration Agreement;
(iii) the execution and delivery of the
Indenture, the Control Agreement and the Administration
Agreement and the acceptance of the Sale and Servicing
Agreement and the performance by the Indenture Trustee of
its obligations under the Indenture, the Sale and
Servicing Agreement and the Administration Agreement have
been duly authorized by all necessary corporate action of
the Indenture Trustee, and each has been duly executed and
delivered on behalf of the Indenture Trustee;
(iv) the Indenture, the Sale and Servicing
Agreement, the Control Agreement and the Administration
Agreement constitute valid and binding obligations of the
Indenture Trustee enforceable against the Indenture
Trustee in accordance with their terms under the laws of
the State of New York and Illinois and the federal laws of
the United States;
(v) each of the Notes has been duly
authenticated by the Indenture Trustee; and
(vi) neither the consummation by the Indenture
Trustee of the transactions contemplated in the Sale and
Servicing Agreement, the Indenture, the Control Agreement
or the Administration Agreement nor the fulfillment of the
terms thereof by the Indenture Trustee will conflict with,
result in a breach or violation of, or constitute a
default under any law or the charter or By-laws of the
Indenture Trustee.
-15-
(k) The Representative shall have received an opinion of
Richards, Layton & 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 banking corporation in good
standing under the laws of the State of Delaware;
(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 Certificate of
Incorporation or By-laws of the Owner Trustee;
(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.
(vi) the Trust Agreement constitutes the legal,
valid and binding obligation of the Company, enforceable
against the Company 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 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
-16-
(vii) for Delaware state franchise and income tax
purposes, (A) the Notes will be characterized as debt and
(B) the Trust will not be classified as an association (or
publicly traded partnership) taxable as a corporation.
(l) The Representative shall have received an opinion
Richards, Layton & 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,
deliver and perform its obligations under the Sale and
Servicing Agreement, the Indenture, the Administration
Agreement, the Note Depository Agreement, the Control
Agreement, the Notes and the Certificates;
(iii) assuming that the security interest created
by the Indenture in the Receivables has been duly created
and has attached, upon the filing of a financing statement
with the Secretary of State of Delaware the Indenture
Trustee will have a perfected security interest in the
Trust's rights in such Receivables and the proceeds
thereof, and such security interest will be prior to any
other security interest granted by the Trust that is
perfected solely by the filing of financing statements
under the UCC as in effect in the State of Delaware (the
"DELAWARE UCC"), excluding purchase money security
interests under Section 9-312(4) of the Delaware UCC and
temporarily perfected security interests in proceeds under
Section 9-306(3) of the Delaware UCC;
(iv) assuming that the Receivables are in
substantially one of the forms attached to such opinion,
the Receivables are "chattel paper" as defined in the
Delaware UCC;
(v) no re-filing 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;
(vi) the Certificates have been duly authorized
and executed by the Trust and, when authenticated by the
Owner Trustee on behalf of the Trust and issued and
delivered by the Trust upon the order of the Company in
accordance with the Trust Agreement, the Certificates will
be validly issued and entitled to the benefits of the
Trust Agreement; and
(vii) under 12 DEL. C. Section 3805(b), no
creditor of any Certificateholder (including any creditor
of the Company in its capacity as Certificateholder) shall
have any right to obtain possession of, or otherwise
exercise legal or equitable
-17-
remedies with respect to, the property of the Trust except
in accordance with the terms of the Trust Agreement.
(m) The Representative shall have received an opinion of
Dewey Ballantine LLP, counsel to the Company, dated the Closing Date
and satisfactory in form and substance to the Representative and
counsel for the Underwriters, (i) with respect to the
characterization of the transfer of the Receivables by AHFC to the
Company and (ii) to the effect that should AHFC become the debtor in
a case under Title 11 of the United States Code (the "BANKRUPTCY
CODE") and the Company would not otherwise properly be a debtor in a
case under the Bankruptcy Code, and if the matter were properly
briefed and presented to a court exercising bankruptcy jurisdiction,
the court, exercising reasonable judgment after full consideration
of all relevant factors, should not order, over the objection of the
Certificate holders or the Noteholders, the substantive
consolidation of the assets and liabilities of the Company with
those of AHFC and such opinion shall be in substantially the form
previously discussed with the Representative and counsel for the
Underwriters and in any event satisfactory in form and in substance
to the Representative and counsel for the Underwriters.
(n) 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.
(o) The Representative shall have received an opinion of
Dewey Ballantine 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.
(p) Each Class of the Notes shall have been rated in the
highest rating category by each of Moody's, Fitch and Standard &
Poor's.
(q) On or prior to the Closing Date, the Certificates
shall have been issued to the Company.
(r) The Representative shall have received from Dewey
Ballantine LLP and each other counsel for the Company, a letter
dated the Closing Date to the effect that the Underwriters
-18-
may rely upon each opinion rendered by such counsel to either
Standard & Poor's, Moody's or Fitch in connection with the rating of
any Class of the Notes, as if each such opinion were addressed to
the Underwriters.
(s) The Representative shall have received an opinion of
Scott Shea, Esq., counsel to the Company and AHFC, dated the Closing
Date, to the effect that, to the best knowledge of such counsel
after due inquiry, there are no actions, proceedings or
investigations to which the Company or AHFC is a party or that are
threatened before any court, administrative agency or other tribunal
having jurisdiction over AHFC or the Company, (i) that are required
to be disclosed in the Registration Statement, (ii) asserting the
invalidity of this Agreement, any Basic Document, the Notes or the
Certificates, (iii) seeking to prevent the issuance of the Notes or
the Certificates or the consummation of any of the transactions
contemplated by this Agreement or the Basic Documents, (iv) which
might materially and adversely affect the performance by the Company
or AHFC of its obligations under, or the validity or enforceability
of, this Agreement, any Basic Document, the Notes or the
Certificates or (v) seeking adversely to affect the federal income
tax attributes of the Notes as described in the Prospectus under the
heading "MATERIAL FEDERAL INCOME TAX CONSEQUENCES".
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 Prospectus, or any
amendment or supplement thereto, or any related preliminary
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 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
-19-
or omission made in any preliminary prospectus, the indemnity
agreement contained in this subsection (a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Notes
concerned, to the extent that the untrue statement or omission or
alleged untrue statement or omission was eliminated or remedied in
the Prospectus, which Prospectus was required to be delivered by
such Underwriter under the Act to such person and was not so
delivered if the Company or AHFC had previously furnished copies
thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly
indemnify and hold harmless the Company and AHFC against any losses,
claims, damages or liabilities to which the Company or AHFC may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained or incorporated in the
Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, 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
-20-
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or
could have been a party if indemnity could have been sought
hereunder by such indemnified party unless such settlement includes
an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the
offering of the Notes or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or 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
-21-
Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each director
of the Company or AHFC, to each officer of the Company and AHFC who
has signed the Registration Statement and to each person, if any,
who controls the Company or AHFC within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters
default in their obligations to purchase Notes hereunder on the Closing Date
and the aggregate principal amount of Notes that such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the
total principal amount of Notes that the Underwriters are obligated to
purchase on such Closing Date, the Representative may make arrangements
satisfactory to the Company for the purchase of such Notes by other persons,
including any of the Underwriters, but if no such arrangements are made by
such Closing Date, the nondefaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to
purchase the Notes that such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default
and the aggregate principal amount of Notes with respect to which such
default or defaults occur exceeds 10% of the total principal amount of Notes
that the Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to the Representative and the Company for the
purchase of such Notes by other persons are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of
any non-defaulting Underwriter or the Company, except as provided in Section
9. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
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 60 Wall Street, New York, New York
10260, Attention: Asset Finance Group (facsimile:
-22-
(212) 648-5251) or, if sent to the Company, will be mailed, delivered or sent
by facsimile transmission and confirmed to it at 700 Van Ness Avenue,
Torrance, California 90501, Attention: John I. Weisickle, (facsimile: (310)
787-3910), and if to AHFC, will be mailed, delivered or sent by facsimile
transmission and confirmed to it at 700 Van Ness Avenue, Torrance, California
90501, Attention: John I. Weisickle, (facsimile: (310) 787-3910); PROVIDED
that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telecopied and confirmed to such Underwriter.
11. NO BANKRUPTCY PETITION. Each Underwriter agrees that, prior to
the date which is one year and one day after the payment in full of all
securities issued by the Company or by a trust for which the Company was the
depositor which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other person in instituting against, the Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7, and
no other person will have any right or obligation hereunder.
13. REPRESENTATION OF UNDERWRITERS. The Representative will act for
the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representative will be binding upon all the
Underwriters.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all such
counterparts shall together constitute one and the same Agreement.
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.
-23-
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/ John I. Weisickle
-----------------------------------
Name: John I. Weisickle
Title: Treasurer
AMERICAN HONDA
FINANCE CORPORATION
By: /s/ John I. Weisickle
-----------------------------------
Name: John I. Weisickle
Title: Vice President, Finance
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written:
J.P. MORGAN SECURITIES INC., acting on behalf of itself
and as the Representative of the several Underwriters
By: /s/ Richard V. Lawrence
----------------------------------
Name: Richard V. Lawrence
Title: Vice President
-25-
SCHEDULE A
- ----------------------------------- ---------------- ------------------ ------------------ -----------------
Underwriter Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4
NOTES NOTES NOTES NOTES
- ----------------------------------- ---------------- ------------------ ------------------ -----------------
Chase Securities Inc. $104,300,000 $84,000,000 $135,250,000 $45,135,000
- ----------------------------------- ---------------- ------------------ ------------------ -----------------
J.P. Morgan Securities Inc. 104,300,000 84,000,000 135,250,000 45,135,000
- ----------------------------------- ---------------- ------------------ ------------------ -----------------
Banc of America Securities LLC 29,800,000 24,000,000 38,500,000 13,000,000
- ----------------------------------- ---------------- ------------------ ------------------ -----------------
Banc One Capital Markets, Inc. 29,800,000 24,000,000 38,500,000 13,000,000
- ----------------------------------- ---------------- ------------------ ------------------ -----------------
Salomon Smith Barney Inc. 29,800,000 24,000,000 38,500,000 13,000,000
- ----------------------------------- ---------------- ------------------ ------------------ -----------------
Total: $298,000,000 $240,000,000 $386,000,000 $129,270,000
- ----------------------------------- ---------------- ------------------ ------------------ -----------------
A-1