EXHIBIT 1.1
EXECUTION COPY
$1,507,849,000
HONDA AUTO RECEIVABLES 2001-1 OWNER TRUST
$441,500,000 5.270% ASSET BACKED NOTES, CLASS A-1
$416,000,000 5.150% ASSET BACKED NOTES, CLASS A-2
$441,000,000 5.360% ASSET BACKED NOTES, CLASS A-3
$209,349,000 5.560% ASSET BACKED NOTES, CLASS A-4
AMERICAN HONDA RECEIVABLES CORP.
UNDERWRITING AGREEMENT
February 21, 2001
Chase Securities Inc.,
As Representative of the Several Underwriters
270 Park Avenue
New York, NY 10017
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 2001-1 Owner Trust (the
"TRUST") to issue and sell $441,500,000 aggregate principal amount of 5.270%
Asset Backed Notes, Class A-1 (the "CLASS A-1 NOTES"), $416,000,000 aggregate
principal amount of 5.150% Asset Backed Notes, Class A-2 (the "CLASS A-2
NOTES"), $441,000,000 aggregate principal amount of 5.360% Asset Backed Notes,
Class A-3 (the "CLASS A-3 NOTES") and $209,349,000 aggregate principal amount of
5.560% 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 February
1, 2001 (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 $58,747,937.34 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 February 28, 2001 (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 February 1, 2001 (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 February
1, 2001 (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 February 1,
2001 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."
(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).
-2-
(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 has caused to be filed with the Commission on
February 22, 2001 the Current Report on Form 8-K with respect to the
Term Sheet dated February 16, 2001 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
-3-
respective properties, or any agreement or instrument to which the
Company or AHFC is a party or by which the Company or AHFC is bound
or to which any of the properties of the Company or AHFC is subject,
or the Articles of Incorporation or By-laws of the Company and AHFC,
and the Company has full power and authority to authorize the
issuance of the Notes and the Certificates and to sell the Notes as
contemplated by this Agreement, the Indenture and the Trust
Agreement, and each of the Company and AHFC has full power and
authority to enter into this Agreement and the Basic Documents and
to consummate the transactions contemplated hereby and thereby.
(i) On the Closing Date, the Company will have directed the
Owner Trustee to authenticate and execute the Certificates and, when
delivered and paid for pursuant to the Trust Agreement, the
Certificates will have been duly issued and delivered and will
constitute valid and legally binding obligations of the Trust, entitled
to the benefits provided in the Trust Agreement and enforceable in
accordance with their terms.
(j) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company
or AHFC or any of their respective properties that, if determined
adversely to the Company or AHFC, would individually or in the
aggregate have a material adverse effect on the condition (financial or
other), business or results of operations of the Company or AHFC,
respectively, or would materially and adversely affect the ability of
the Company or AHFC to perform its obligations under this Agreement or
the other Basic Documents to which it is a party, or which are
otherwise material in the context of the issuance and sale of the Notes
or the issuance of the Certificates; and no such actions, suits or
proceedings are threatened or, to the Company's or AHFC's knowledge,
contemplated.
(k) As of the Closing Date, the representations and warranties
of the Company and AHFC contained in the Basic Documents will be true
and correct.
(l) This Agreement has been duly authorized, executed and
delivered by each of the Company and AHFC.
(m) The Company has authorized the conveyance of the
Receivables to the Trust, and, as of the Closing Date, the Company has
directed the Trust to execute and issue the Notes and the Certificates
and to sell the Notes.
(n) The Company's assignment and delivery of the Receivables
to the Trust as of the Closing Date will vest in the Trust all of the
Company's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(o) The Trust's assignment of the Receivables to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture
Trustee, for the benefit of the Noteholders, a first priority
perfected security interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
-4-
(p) The computer tape of the Receivables created as of
February 1, 2001, 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,
99.819808% of the principal amount thereof; (iii) the Class A-3 Notes,
99.763976% of the principal amount thereof; and (iv) the Class A-4 Notes,
99.728722% 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
-5-
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
February 28, 2001, 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 February 28, 2001, 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 will not offer or sell, prior to the date six months after their
date of issuance, any Notes to persons in the United Kingdom, except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted in and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995; (ii) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 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 issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issuance of the Notes to a person who is of a kind described
in Article 11(3) of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1997 or is a person to whom the document can otherwise
lawfully be issued or passed on.
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
-6-
not effect such amendment or supplementation without the
Representative's reasonable consent; and the Company will also
advise the Representative promptly of any amendment or
supplementation of the Registration Statement or the Prospectus and
of the institution by the Commission of any stop order proceedings
in respect of the Registration Statement and will use its best
efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify the Representative of such event and
will promptly prepare and file with the Commission (subject to the
Representative's prior review pursuant to Section 5(b)), at its own
expense, an amendment or supplement which will correct such statement
or omission, or an amendment which will effect such compliance. Neither
the Representative's consent to, nor the Underwriters delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) The Company will cause the Trust to make generally
available to Noteholders, as soon as practicable, but no later than
sixteen months after the date hereof, an earnings statement of the
Trust covering a period of at least twelve consecutive months beginning
after the later of (i) the effective date of the registration statement
relating to the Notes and (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and, in each case,
satisfying the provisions of Section 11(a) of the Act (including Rule
158 promulgated thereunder).
(e) The Company will furnish to the Underwriters copies of the
Prospectus, the Registration Statement and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Representative reasonably requests. The
Prospectus shall be furnished on or prior to 3:00 P.M., New 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.
-7-
(g) For a period from the date of this Agreement until the
retirement of the Notes (i) the Company will furnish to the
Representative and, upon request, to each of the other Underwriters,
copies of each certificate and the annual statements of compliance
delivered to the Indenture Trustee pursuant to Section 3.09 of the
Indenture and Sections 3.10 and 3.11 of the Sale and Servicing
Agreement and the annual independent certified public accountant's
servicing reports furnished to the Indenture Trustee pursuant to
Section 3.12 of the Sale and Servicing Agreement, by first-class mail
as soon as practicable after such statements and reports are furnished
to the Indenture Trustee, and (ii) such other forms of periodic
certificates or reports as may be delivered to the Indenture Trustee,
the Owner Trustee or the Noteholders under the Indenture, the Sale and
Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Company will
furnish to the Representative by first-class mail as soon as
practicable, (i) all documents distributed, or caused to be
distributed, by the Company to the Noteholders, (ii) all documents
filed or caused to be filed by the Company with the Commission pursuant
to the Exchange Act or any order of the Commission thereunder and (iii)
such other information in the possession of the Company concerning the
Trust as the Representative from time to time may reasonably request.
(i) Subject to the provisions of Section 9 hereof, the Company
will pay all expenses incident to the performance of its obligations
under this Agreement and will reimburse the Underwriters (if and to the
extent incurred by them) for any filing fees and other expenses
(including fees and disbursements of counsel) incurred by them in
connection with qualification of the Notes for sale in jurisdictions
that the Representative may designate pursuant to Section 5(f) hereof
and determination of their eligibility for investment under the laws of
such jurisdictions as the Representative reasonably designates and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Notes, for any travel
expenses of the officers and employees of the Underwriters and any
other expenses of the Underwriters in connection with attending or
hosting meetings with prospective purchasers of the Notes and for
expenses incurred in distributing the Term Sheets and the Prospectus
(including any amendments and supplements thereto).
(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
-8-
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 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.
-9-
(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;
(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
-10-
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 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
-11-
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 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
-12-
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;
(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;
-13-
(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 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
-14-
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 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
-15-
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.
(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 national 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; and
(v) the execution, delivery and performance by the
Owner Trustee of the Trust Agreement does not require any
consent, approval or authorization of, or any registration or
filing with, any Delaware or United States federal
governmental authority having jurisdiction over the banking or
trust powers of the Owner Trustee, other than those consents,
approvals or authorizations as have been obtained and the
filing of the Certificate of Trust with the Secretary of State
of the State of Delaware, which have been duly filed.
-16-
(l) The Representative shall have received an opinion
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) 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;
(v) 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
(vi) 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 remedies with respect to, the property of the Trust
except in accordance with the terms of the Trust Agreement.
(vii) 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
-17-
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
(viii) 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, 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.
(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
-18-
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 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 Term Sheet, the Prospectus, or any amendment or supplement thereto
or arise out of or are based upon the
-19-
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that neither the Company nor AHFC will be liable in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any
of such documents in reliance upon and in conformity with written
information furnished to the Company or AHFC by any Underwriter
through the Representative specifically for use therein, it being
understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in
subsection (b) below; and PROVIDED, FURTHER that with respect to any
untrue statement or omission or alleged untrue statement or omission
made in the Term Sheet, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or
liabilities purchased the Notes concerned, to the extent that the
untrue statement or omission or alleged untrue statement or omission
was eliminated or remedied in the Prospectus, which Prospectus was
required to be delivered by such Underwriter under the Act to such
person and was not so delivered if the Company or AHFC had
previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company and AHFC against any losses, claims,
damages or liabilities to which the Company or AHFC may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement
of any material fact contained or incorporated in the Registration
Statement, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representative specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company or AHFC
in connection with investigating or defending any such loss, claim,
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
-20-
the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under subsection
(a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof and after acceptance by the indemnified
party of such counsel, the indemnifying party will not be liable to
such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any indemnified
party is or could have been a party if indemnity could have been
sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or 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
-21-
exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations
and not joint.
(e) The obligations of the Company or AHFC under this Section shall
be in addition to any liability which the Company or AHFC may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the
Act; and the obligations of the Underwriters under this Section shall
be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company or AHFC, to each officer of the Company
and AHFC who has signed the Registration Statement and to each person,
if any, who controls the Company or AHFC within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters
default in their obligations to purchase Notes hereunder on the Closing Date
and the aggregate principal amount of Notes that such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the
total principal amount of Notes that the Underwriters are obligated to
purchase on such Closing Date, the Representative may make arrangements
satisfactory to the Company for the purchase of such Notes by other persons,
including any of the Underwriters, but if no such arrangements are made by
such Closing Date, the nondefaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to
purchase the Notes that such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default
and the aggregate principal amount of Notes with respect to which such
default or defaults occur exceeds 10% of the total principal amount of Notes
that the Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to the Representative and the Company for the
purchase of such Notes by other persons are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of
any non-defaulting Underwriter or the Company, except as provided in Section
9. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
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
-22-
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 270 Park Avenue, New York, New York 10017,
Attention: Global Securitized Finance Group (facsimile: (212) 834-6562), 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.
-23-
(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/ Y. Kohama
-----------------------
Name: Y. Kohama
Title: President
AMERICAN HONDA
FINANCE CORPORATION
By: /s/ Y. Kohama
-----------------------
Name: Y. Kohama
Title: President
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written:
CHASE 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
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
- ------------------------------------------- -------------------- ------------------ ---------------- ------------------
Banc of America Securities LLC $154,550,000 $145,600,000 $154,500,000 $73,674,500
- ------------------------------------------- -------------------- ------------------ ---------------- ------------------
Chase Securities Inc. 154,550,000 145,600,000 154,500,000 73,674,500
- ------------------------------------------- -------------------- ------------------ ---------------- ------------------
Banc One Capital Markets, Inc. 33,100,000 31,200,000 33,000,000 15,500,000
- ------------------------------------------- -------------------- ------------------ ---------------- ------------------
Barclays Capital Inc. 33,100,000 31,200,000 33,000,000 15,500,000
- ------------------------------------------- -------------------- ------------------ ---------------- ------------------
Merrill Lynch, Pierce, Fenner &
Smith Incorporated 33,100,000 31,200,000 33,000,000 15,500,000
- ------------------------------------------- -------------------- ------------------ ---------------- ------------------
Morgan Stanley & Co. Incorporated 33,100,000 31,200,000 33,000,000 15,500,000
- ------------------------------------------- -------------------- ------------------ ---------------- ------------------
Total: $441,500,000 $416,000,000 $441,000,000 $209,349,000
- ------------------------------------------- -------------------- ------------------ ---------------- ------------------