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AMERICAN HONDA FINANCE CORPORATION,
as Seller
and
AMERICAN HONDA RECEIVABLES CORP.,
as Purchaser
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RECEIVABLES PURCHASE AGREEMENT
Dated as of July 1, 1997
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TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitional Provisions . . . . . . . . . . . . . . . 2
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables . . . . . . . . . . . . . . . . . 2
Section 2.02. Representations and Warranties of the Seller and the
Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.03. Representations and Warranties as to the Receivables. . . . 6
Section 2.04. Covenants of the Seller . . . . . . . . . . . . . . . . . . 10
ARTICLE THREE
PAYMENT OF RECEIVABLES PURCHASE PRICE
Section 3.01. Payment of Receivables Purchase Price . . . . . . . . . . . 11
ARTICLE FOUR
TERMINATION
Section 4.01. Termination . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
Section 5.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.02. Protection of Right, Title and Interest to Receivables . . 11
Section 5.03. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(i)
Section 5.05. Severability of Provisions. . . . . . . . . . . . . . . . . 12
Section 5.06. Assignment . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.07. Further Assurances . . . . . . . . . . . . . . . . . . . . 13
Section 5.08. No Waiver; Cumulative Remedies. . . . . . . . . . . . . . . 13
Section 5.09. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.10. Third-Party Beneficiaries . . . . . . . . . . . . . . . . . 13
Section 5.11. Merger and Integration . . . . . . . . . . . . . . . . . . 13
Section 5.12. Headings . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.13. Seller Indemnification. . . . . . . . . . . . . . . . . . . 14
Section 5.14. Merger, Consolidation or Assumption of the Obligations of the
Seller . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SCHEDULES
Schedule A - Schedule of Receivables . . . . . . . . . . . . . . . . . . . A-1
(ii)
RECEIVABLES PURCHASE AGREEMENT, dated as of July 1, 1997, between American
Honda Finance Corporation, a California corporation, as seller, and American
Honda Receivables Corp., a California corporation, as purchaser.
In consideration of the premises and mutual agreements herein contained,
each party agrees as follows for the benefit of the other party and for the
benefit of the Trustee:
ARTICLE ONE
DEFINITIONS
Section 1.01. DEFINITIONS. Whenever used in this Agreement, the following
words and phrases shall have the following meanings:
"AGREEMENT" means this Receivables Purchase Agreement and all amendments
hereof and supplements hereto.
"CLOSING DATE" means July __, 1997.
"CUTOFF DATE" means July 1, 1997.
"POOLING AND SERVICING AGREEMENT" means the Pooling and Servicing Agreement
dated as of the date hereof, among American Honda Receivables Corp., as seller,
American Honda Finance Corporation, as servicer, and the Trustee.
"PURCHASER" means American Honda Receivables Corp., in its capacity as
purchaser of the Receivables under this Agreement, and its successors and
assigns.
"RECEIVABLES PURCHASE PRICE" means $________________.
"SELLER" means American Honda Finance Corporation, in its capacity as
seller of the Receivables under this Agreement, and its successors and assigns.
"STANDARD TERMS AND CONDITIONS" means the Standard Terms and Conditions of
Agreement (Senior/Subordinated), for Honda Auto Receivables Grantor Trust dated
as of July 1, 1997.
"SCHEDULE OF RECEIVABLES" means the schedule of receivables attached as
Schedule A hereto.
"TRUSTEE" means Bank of Tokyo-Mitsubishi Trust Company, as trustee under
the Pooling and Servicing Agreement, or any successor trustee thereunder.
"WARRANTY RECEIVABLE" means a Receivable purchased by the Seller pursuant
to Section 2.03(c).
Section 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) All capitalized terms not otherwise defined in this Agreement shall
have the defined meanings used in the Pooling and Servicing Agreement.
(b) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, subsection and
Schedule references contained in this Agreement are references to Sections,
subsections and Schedules in or to this Agreement unless otherwise specified;
and the word "including" means including without limitation.
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. CONVEYANCE OF RECEIVABLES.
(a) On the Closing Date the Seller agrees to sell, transfer, assign and
otherwise convey to the Purchaser, and the Purchaser agrees to purchase from the
Seller, without recourse (subject to the Seller's obligations hereunder) all of
the right, title and interest of the Seller in and to the following:
(i) the Receivables listed in the Schedule of Receivables and
all monies due thereon or paid thereunder or in respect thereof (including
proceeds of the repurchase of Receivables by the Seller pursuant to Section
2.03(c) hereof) on or after the Cutoff Date;
(ii) the security interests in the Financed Vehicles and any
accessions thereto;
(iii) any proceeds from physical damage insurance policies
covering the Financed Vehicles and in any proceeds of any credit life or
credit disability insurance policies relating to the Receivables or the
Obligors;
(iv) any proceeds of Dealer Recourse;
(v) the right to realize upon any property (including the right
to receive future Liquidation Proceeds) that shall have secured a
Receivable and have been repossessed by or on behalf of the Trustee; and
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(vi) any and all proceeds of the foregoing.
(b) In connection with the foregoing conveyance, the Seller agrees to
record and file, at its own expense, one or more financing statements with
respect to the Receivables now existing and hereafter created for the sale of
accounts (as defined in Section 9106 of the UCC as in effect in the State of
California) meeting the requirements of applicable state law in such manner as
is necessary to perfect the sale of the Receivables to the Purchaser, and the
proceeds thereof (and any continuation statements as are required by applicable
state law), and to deliver a file-stamped copy of each such financing statement
(or continuation statement) or other evidence of such filings (which may, for
purposes of this Section, consist of telephone confirmation of such filings with
the file stamped copy of each such filings to be provided to the Purchaser in
due course), as soon as is practicable after receipt by the Seller thereof.
In connection with the foregoing conveyance, the Seller further agrees, at
its own expense, on or prior to the Closing Date (i) to annotate and indicate in
its computer files that the Receivables have been transferred to the Purchaser
pursuant to this Agreement, (ii) to deliver to the Purchaser a computer file or
printed or microfiche list containing a true and complete list of all such
Receivables, identified by account number and by the Principal Balance of each
Receivable as of the Cutoff Date, which file or list shall be marked as
Schedule A to this Agreement and is hereby incorporated into and made a part of
this Agreement and (iii) to deliver the Receivable Files to or upon the order of
the Purchaser.
The parties hereto intend that the conveyance hereunder be a sale. In the
event that the conveyance hereunder is not for any reason considered a sale, the
Seller hereby grants to the Purchaser a first priority perfected security
interest in, all of its right, title and interest in, to and under the
Receivables, and all other property conveyed hereunder and listed in
Section 2.01 hereof and all proceeds of any of the foregoing and the parties
intend that this Agreement constitute a security agreement under applicable law.
Section 2.02. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE
PURCHASER.
(a) The Seller hereby represents and warrants to the Purchaser as of
the date of this Agreement and the Closing Date that:
(i) ORGANIZATION AND GOOD STANDING. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
State of California, and has power and authority to own its properties and
to conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and shall
have, power, authority and legal right to acquire, own and sell the
Receivables.
(ii) DUE QUALIFICATION. The Seller is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease
of property or the
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conduct of its business (including the servicing of the Receivables as
required by the Pooling and Servicing Agreement) shall require such
qualifications.
(iii) POWER AND AUTHORITY. The Seller shall have the power and
authority to execute and deliver this Agreement and to carry out its terms;
and the execution, delivery and performance of this Agreement shall have
been duly authorized by the Seller by all necessary corporate action.
(iv) BINDING OBLIGATION. This Agreement constitutes a legal, valid
and binding obligation of the Seller, enforceable against it in accordance
with its terms, except as enforceability may be subject to or limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation or other
similar laws affecting the enforcement of creditors' rights in general and
by general principles of equity, regardless of whether such enforceability
shall be considered in a proceeding in equity or at law.
(v) NO VIOLATION. The execution, delivery and performance by the
Seller of this Agreement and the consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time) a
default under, the articles of incorporation or bylaws of the Seller, or
conflict with or breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default under, any
indenture, agreement or other instrument to which the Seller is a party or
by which it may be bound or any of its properties are subject; nor result
in the creation or imposition of any lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than this Agreement); nor violate any law or, to the knowledge of
the Seller, any order, rule or regulation applicable to it or its
properties of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or any of its properties.
(vi) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the knowledge of the Seller, threatened against the Seller,
before any court, regulatory body, administrative agency or other tribunal
or governmental instrumentality (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that, in the reasonable judgment of the Seller,
would materially and adversely affect the performance by the Seller of its
obligations under this Agreement.
(b) The Purchaser hereby represents and warrants to the Seller as of the
date of this Agreement and the Closing Date that:
(i) ORGANIZATION AND GOOD STANDING. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of California, and has power and authority to own its properties and
to conduct its
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business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and shall have, power,
authority and legal right to acquire, own and sell the Receivables.
(ii) DUE QUALIFICATION. The Purchaser is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall require
such qualifications.
(iii) POWER AND AUTHORITY. The Purchaser shall have the power and
authority to execute and deliver this Agreement and to carry out its terms;
and the execution, delivery and performance of this Agreement shall have
been duly authorized by the Purchaser by all necessary corporate action.
(iv) BINDING OBLIGATION. This Agreement constitutes a legal, valid
and binding obligation of the Purchaser, enforceable against it in
accordance with its terms, except as enforceability may be subject to or
limited by bankruptcy, insolvency, reorganization, moratorium, liquidation
or other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at law.
(v) NO VIOLATION. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof shall not conflict with,
result in any breach of any of the terms and provisions of, nor constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or bylaws of the Purchaser, or conflict with or breach any of
the material terms or provisions of, or constitute (with or without notice
or lapse of time) a default under, any indenture, agreement or other
instrument to which the Purchaser is a party or by which it may be bound or
any of its properties are subject; nor result in the creation or imposition
of any lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this Agreement); nor
violate any law or, to the knowledge of the Purchaser, any order, rule or
regulation applicable to it or its properties of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Purchaser or any
of its properties.
(vi) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the knowledge of the Purchaser, threatened against the
Purchaser, before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality (i) asserting the invalidity
of this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any
determination or ruling that, in the reasonable judgment of the Purchaser,
would materially and adversely affect the performance by the Purchaser of
its obligations under this Agreement.
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(c) The representations and warranties set forth in this Section shall
survive the sale of the Receivables by the Seller to the Purchaser and the sale
of the Receivables by the Purchaser to the Trust. Upon discovery by the Seller,
the Purchaser or the Trustee of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the others.
Section 2.03. REPRESENTATIONS AND WARRANTIES AS TO THE RECEIVABLES.
(a) ELIGIBILITY OF RECEIVABLES. The Seller hereby represents and
warrants as of the Cutoff Date that:
(i) CHARACTERISTICS OF RECEIVABLES. Each Receivable (A) shall have
been originated in the United States by a Dealer for the retail sale of the
related Financed Vehicle in the ordinary course of such Dealer's business,
shall have been fully and properly executed by the parties thereto, shall
have been purchased by the Seller from such Dealer under an existing
agreement with the Seller and shall have been validly assigned by such
Dealer to the Seller in accordance with its terms, (B) shall have created
or shall create a valid, subsisting and enforceable first priority security
interest in favor of the Seller in the related Financed Vehicle, (C) shall
contain customary and enforceable provisions such that the rights and
remedies of the holder thereof shall be adequate for realization against
the collateral of the benefits of the security, (D) shall provide for level
Monthly Payments (provided that the payment in the first or last month in
the life of the Receivable may be minimally different from the level
payment) that fully amortize the Amount Financed over its original term and
shall provide for a finance charge or shall yield interest at its APR, (E)
shall provide for, in the event that such Receivable is prepaid, a
prepayment that fully pays the Principal Balance and includes accrued but
unpaid interest at least through the date of prepayment in an amount
calculated by using an interest rate at least equal to its APR, (F) shall
have an Obligor that is not a federal, state or local governmental entity
and (G) is a retail installment contract.
(ii) SCHEDULE OF RECEIVABLES. The information set forth in the
Schedule of Receivables shall be true and correct in all material respects
as of the opening of business on the Cutoff Date, the Receivables were
selected at random from the retail installment sale contracts included in
the portfolio of the Seller meeting the selection criteria set forth in
this Section and no selection procedures believed to be adverse to the
Certificateholders shall have been utilized in selecting the Receivables.
(iii) COMPLIANCE WITH LAW. Each Receivable and each sale of the
related Financed Vehicle shall have complied at the time it was originated
or made, and shall comply at the time of execution of this Agreement in all
material respects with all requirements of applicable federal, state and
local laws, and regulations thereunder, including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Magnuson-Moss
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Warranty Act, Federal Reserve Board Regulations B and Z, state adaptations
of the National Consumer Act and of the Uniform Consumer Credit Code and
other consumer credit, equal credit opportunity and disclosure laws.
(iv) BINDING OBLIGATION. Each Receivable shall constitute the
genuine, legal, valid and binding payment obligation in writing of the
related Obligor, enforceable by the holder there of in accordance with
its terms, except as enforceability may be subject to or limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of
equity, regardless of whether such enforceability shall be considered in a
proceeding in equity or at law.
(v) NO BANKRUPT OBLIGORS. According to the records of the Seller
as of the Cutoff Date, no Obligor is the subject of a bankruptcy
proceeding.
(vi) SECURITY INTEREST IN FINANCED VEHICLES. According to the
records of the Seller, as of the Cutoff Date no Financed Vehicle has been
repossessed and not reinstated and immediately prior to the sale,
assignment and transfer there of, each Receivable shall be secured by a
validly perfected first priority security interest in the related Financed
Vehicle in favor of the Seller as secured party or all necessary and
appropriate action with respect to such Receivable shall have been taken
to perfect a first priority security interest in such Financed Vehicle in
favor of the Seller as secured party.
(vii) RECEIVABLES IN FORCE. No Receivable shall have been satisfied,
subordinated or rescinded, nor shall any Financed Vehicle have been
released from the lien granted by the related Receivable in whole or in
part.
(viii) NO WAIVERS. No provision of a Receivable shall have been
waived in such a manner that such Receivable fails to meet all of the other
representations and warranties made by the Seller herein with respect
thereto.
(ix) NO AMENDMENTS. No Receivable shall have been amended in such a
manner that the number of Scheduled Payments has been increased or that the
related Amount Financed has been increased or such Receivable fails to meet
all of the other representations and warranties made by the Seller herein
with respect thereto.
(x) NO DEFENSES. No facts shall be known to the Seller which would
give rise to any right of rescission, setoff, counterclaim or defense, nor
shall the same have been asserted or threatened, with respect to any
Receivable.
(xi) NO LIENS. To the knowledge of the Seller, no liens or claims
shall have been filed, including liens for work, labor or materials
relating to a Financed Vehicle, that shall be liens prior to, or equal or
coordinate with, the security interest in such Financed Vehicle granted by
the related Receivable.
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(xii) NO DEFAULTS. Except for payment defaults continuing for a
period of not more than 30 days as of the Cutoff Date, no default, breach,
violation or event permitting acceleration under the terms of any
Receivable shall have occurred and no continuing condition that with notice
or the lapse of time would constitute a default, breach, violation or event
permitting acceleration under the terms of any Receivable shall have
arisen; and the Seller shall not have waived any of the foregoing except as
otherwise permitted hereunder.
(xiii) INSURANCE. Pursuant to the Receivables, each Obligor has been
required to obtain physical damage insurance covering the related Financed
Vehicle and the Obligor is required under the terms of the related
Receivable to maintain such insurance.
(xiv) GOOD TITLE. It is the intention of the Seller that the transfer
and assignment herein contemplated, taken as a whole, constitute a sale of
the Receivables from the Seller to the Purchaser and that the beneficial
interest in and title to the Receivables not be part of the debtor's estate
in the event of the filing of a bankruptcy petition by or against the
Seller under any bankruptcy law. No Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the Purchaser,
and no provision of a Receivable shall have been waived, except as provided
in clause (viii) above; immediately prior to the transfer and assignment
herein contemplated, the Seller had good and marketable title to each
Receivable, free and clear of all Liens and rights of others; immediately
upon the transfer and assignment thereof, the Purchaser shall have good and
marketable title to each Receivable, free and clear of all Liens and rights
of others; and the transfer and assignment herein contemplated has been
perfected under the UCC.
(xv) LAWFUL ASSIGNMENT. No Receivable shall have been originated in,
or shall be subject to the laws of, any jurisdiction under which the sale,
transfer and assignment of such Receivable under this Agreement or pursuant
to transfers of the Certificates shall be unlawful, void or voidable.
(xvi) ALL FILINGS MADE. All filings (including UCC filings) necessary
in any jurisdiction to give the Trustee a first priority perfected
ownership interest in the Receivables shall have been made.
(xvii) ONE ORIGINAL. There shall be only one original executed copy
of each Receivable.
(xviii) CHATTEL PAPER. Each Receivable constitutes "chattel paper"
as defined in the UCC.
(xix) ADDITIONAL REPRESENTATIONS AND WARRANTIES. (A) Each
Receivable shall have an original maturity of at least 12 months and not
more than 60 months and, as of the Cutoff Date, a remaining maturity of not
less than 6 months nor greater
8
than 60 months; (B) each Receivable shall provide for payment of a finance
charge or shall yield interest calculated on the basis of the Rule of 78s,
the simple interest method or the actuarial method and the APR of each
Receivable shall, if based on (1) the Rule of 78s, be equal to or greater
than ____% and equal to or less than ____%, (2) the actuarial method, be
equal to or greater than ____% and equal to or less than ____% and (3) the
simple interest method, be equal to or greater than ____% and equal to or
less than ____%; (C) each Receivable shall have had an original principal
balance of not less than $__________ nor more than $__________ and, as of
the Cutoff Date, a principal balance of not less than $__________ and not
more than $__________; (D) each Receivable was originated on or before
__________; (E) each Financed Vehicle shall be a new Honda or Acura motor
vehicle; and (F) the Obligor under each Receivable had a current billing
address in the United States as of the Cutoff Date.
(b) NOTICE OF BREACH. The representations and warranties set forth in
this Section shall speak as of the execution and delivery of this Agreement,
but shall survive the sale, transfer and assignment of the Receivables to the
Purchaser and any subsequent assignment or transfer pursuant to Article Three of
the Pooling and Servicing Agreement. The Purchaser, the Seller or the Trustee,
as the case may be, shall inform the other parties promptly, in writing, upon
discovery of any breach of the Seller's representations and warranties pursuant
to this Section which materially and adversely affects the interests of the
Certificateholders on any Receivable.
(c) REPURCHASE OF RECEIVABLES. In the event of a breach of any
representation or warranty set forth in Section 2.03(a) which materially and
adversely affects the interests of the Certificateholders in any Receivable and
unless the breach shall have been cured by the last day of the second Collection
Period following the Collection Period in which the discovery of the breach is
made or notice is received, as the case may be (or, at option of the Seller, the
last day in the first Collection Period following the Collection Period in which
such discovery is made), the Seller shall repurchase such Receivable. In
consideration of the purchase of any such Receivable, the Seller shall remit an
amount equal to the Warranty Purchase Payment in respect of such Receivable to
the Purchaser and shall be entitled to receive the Released Warranty Amount. In
the event that, as of the date of execution and delivery of this Agreement, any
Liens or claims shall have been filed, including Liens for work, labor or
materials relating to a Financed Vehicle, that shall be liens prior to, or equal
or coordinate with, the lien granted by the related Receivable (whether or not
the Seller has knowledge thereof), and such breach materially and adversely
affects the interests of the Certificateholders in such Receivable, the Seller
shall repurchase such Receivable on the terms and in the manner specified above.
Upon any such repurchase, the Purchaser shall, without further action, be deemed
to transfer, assign, set-over and otherwise convey to the Seller, without
recourse, representation or warranty, all the right, title and interest of the
Purchaser in, to and under such repurchased Receivable, all monies due or to
become due with respect thereto and all proceeds thereof. The Purchaser or the
Trustee, as applicable, shall execute
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such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be requested by the Seller to effect the
conveyance of such Receivable pursuant to this Section. The sole remedy of
the Purchaser with respect to a breach of the Seller's representations and
warranties pursuant to Section 2.03(a) or with respect to the existence of
any such Liens or claims shall be to require the Seller to repurchase the
related Receivables pursuant to this Section.
Section 2.04. COVENANTS OF THE SELLER. The Seller hereby covenants
that:
(a) SECURITY INTERESTS. Except for the conveyances hereunder,
the Seller will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on
any Receivable, whether now existing or hereafter created, or any
interest therein; the Seller will immediately notify the Purchaser of
the existence of any Lien on any Receivable and, in the event that the
interests of the Certificateholders in such Receivable are materially
and adversely affected, such Receivable shall be repurchased from the
Purchaser by the Seller in the manner and with the effect specified in
Section 2.03(c), and the Seller shall defend the right, title and
interest of the Purchaser in, to and under the Receivables, whether
now existing or hereafter created, against all claims of third parties
claiming through or under the Seller; provided, however, that nothing
in this subsection shall prevent or be deemed to prohibit the Seller
from suffering to exist upon a Receivable any Lien for municipal or
other local taxes if such taxes shall not at the time be due and
payable or if the Seller shall currently be contesting the validity of
such taxes in good faith by appropriate proceedings and shall have set
aside on its books adequate reserves with respect thereto.
(b) DELIVERY OF PAYMENTS. The Seller agrees to deliver in kind
upon receipt to the Servicer under the Pooling and Servicing Agreement
(if other than the Seller) all payments received by the Seller in
respect of the Receivables as soon as practicable after receipt
thereof by the Seller.
(c) CONVEYANCE OF RECEIVABLES. The Seller covenants and agrees
that it will not convey, assign, exchange or otherwise transfer the
Receivables to any Person prior to the termination of this Agreement
pursuant to Article Four hereof.
(d) NO IMPAIRMENT. The Seller shall take no action, nor omit to
take any action, which would impair the rights of the Purchaser in any
Receivable, nor shall it, except as otherwise provided in this
Agreement or the Pooling and Servicing Agreement, reschedule, revise
or defer payments due on any Receivable.
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ARTICLE THREE
PAYMENT OF RECEIVABLES PURCHASE PRICE
Section 3.01. PAYMENT OF RECEIVABLES PURCHASE PRICE. In consideration of
the sale of the Receivables from the Seller to the Purchaser as provided in
Section 2.01, on the Closing Date the Purchaser agrees to pay the Seller an
amount equal to the Receivables Purchase Price. The Receivables Purchase Price
shall be paid in the form of (i) $____________, the net cash proceeds from the
public offering by the Purchaser of the Class A Certificates and
(ii) $____________, being deemed paid and returned to the Purchaser as a capital
contribution.
ARTICLE FOUR
TERMINATION
Section 4.01. TERMINATION. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall terminate,
except for the indemnity obligations of the Seller as provided herein, upon the
termination of the Trust as provided in Article Twenty of the Standard Terms and
Conditions.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
Section 5.01. AMENDMENT.
(a) This Agreement may be amended from time to time by the Purchaser and
the Seller to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein or to add any other
provision with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement or the
Pooling and Servicing Agreement; provided, however, that such action shall not,
as evidenced by an Opinion of Counsel to the Purchaser delivered to the Trustee,
adversely affect in any material respect the interests of the Trust.
(b) This Agreement may also be amended from time to time by the Purchaser
and the Seller with the consent of the Trustee for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement.
Section 5.02. PROTECTION OF RIGHT, TITLE AND INTEREST TO RECEIVABLES.
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(a) The Seller, at its expense, shall cause this Agreement and/or all
financing statements and continuation statements and any other necessary
documents covering the Purchaser's right, title and interest to the Receivables
and other property conveyed by the Seller to the Purchaser hereunder to be
promptly recorded, registered and filed, and at all times to be kept recorded,
registered and filed, all in such manner and in such places as may be required
by law fully to preserve and protect the right, title and interest of the
Purchaser hereunder to all of the Receivables and such other property. The
Seller shall deliver to the Purchaser file-stamped copies of, or filing receipts
for, any document recorded, registered or filed as provided above, as soon as
available following such recording, registration or filing. The Purchaser and
the Trustee shall cooperate fully with the Seller in connection with the
obligations set forth above and will execute any and all documents reasonably
required to fulfill the intent of this subsection.
(b) Within 30 days after the Seller makes any change in its name, identity
or corporate structure which would make any financing statement or continuation
statement filed in accordance with Section 5.02(a) seriously misleading within
the meaning of Section 9402(7) of the UCC as in effect in the applicable state,
the Seller shall give the Purchaser notice of any such change and shall execute
and file such financing statements or amendments as may be necessary to continue
the perfection of the Purchaser's security interest in the Receivables and the
proceeds thereof.
(c) The Seller will give the Purchaser prompt written notice of any
relocation of any office from which the Seller keeps records concerning the
Receivables or of its principal executive office and whether, as a result of
such relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation statement or
of any new financing statement and shall execute and file such financing
statements or amendments as may be necessary to continue the perfection of the
interest of the Purchaser in the Receivables and the proceeds thereof.
Section 5.03. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of New York, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 5.04. NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to (a) in
the case of the Purchaser, to American Honda Receivables Corp., 700 Van Ness
Avenue, Building 300, Torrance, California 90501, Attention: President; (b) in
the case of American Honda Finance Corporation, 700 Van Ness Avenue, Building
300, Torrance, California 90501, Attention: President; and (c) in the case of
the Trustee, to the 1251 Avenue of the Americas, 10th Floor, New York, New York
10020-1104, Attention: _____________; or, as to any of such Persons, at such
other address as shall be designated by such Person in a written notice to the
other Persons.
Section 5.05. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held
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invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions and terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
Section 5.06. ASSIGNMENT. This Agreement may not be assigned by the
Purchaser or the Seller except as contemplated by this Section and the Pooling
and Servicing Agreement; provided, however, that simultaneously with the
execution and delivery of this Agreement, the Purchaser shall assign all of its
right, title and interest herein to the Trustee for the benefit of the
Certificateholders as provided in Section 2.01 of the Pooling and Servicing
Agreement, to which the Seller hereby expressly consents. The Seller agrees to
perform its obligations hereunder for the benefit of the Trust and that the
Trustee may enforce the provisions of this Agreement, exercise the rights of the
Purchaser and enforce the obligations of the Seller hereunder without the
consent of the Purchaser.
Section 5.07. FURTHER ASSURANCES. The Seller and the Purchaser agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party hereto
or by the Trustee more fully to effect the purposes of this Agreement,
including, without limitation, the execution of any financing statements,
amendments, continuation statements or releases relating to the Receivables for
filing under the provisions of the UCC or other law of any applicable
jurisdiction.
Section 5.08. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Purchaser, the Trustee or the Seller,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
Section 5.09. COUNTERPARTS. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
Section 5.10. THIRD-PARTY BENEFICIARIES. This Agreement will inure to the
benefit of and be binding upon the parties hereto, and the Trustee for the
benefit of the Certificateholders, which shall be considered to be a third-party
beneficiary hereof. Except as otherwise provided in this Agreement, no other
Person will have any right or obligation hereunder.
Section 5.11. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
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Section 5.12. HEADINGS. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
Section 5.13. SELLER INDEMNIFICATION.
(a) PURCHASER AND TRUST. The Seller shall indemnify and hold harmless the
Purchaser, the Trust and the Certificateholders from and against any loss,
liability, expense or damage suffered or sustained by reason of any acts,
omissions or alleged acts or omissions arising out of activities of the Seller
pursuant to this Agreement or as a result of the transactions contemplated
hereby, including, but not limited to, any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim;
provided, however, that the Seller shall not indemnify the Purchaser, the Trust
or the Certificateholders if such acts, omissions or alleged acts or omissions
constitute negligence or willful misconduct by the Purchaser or the
Certificateholders.
(b) TRUSTEE. The Seller shall indemnify, defend and hold harmless the
Trustee from and against any and all costs, expenses, losses, claims, damages
and liabilities to the extent that such cost, expense, loss, claim, damage or
liability arose out of, and was imposed upon the Trustee through the negligence,
willful misfeasance or bad faith of the Seller in the performance of its duties
under this Agreement or by reason of reckless disregard of its obligations and
duties under this Agreement.
Section 5.14. MERGER, CONSOLIDATION OR ASSUMPTION OF THE OBLIGATIONS OF
THE SELLER.
(a) The Seller shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the corporation formed by such consolidation or into which
the Seller is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Seller substantially as an entirety shall
be organized and existing under the laws of the United States, any State or
the District of Columbia, and, if the Seller is not the surviving entity,
shall expressly assume, by an agreement supplemental hereto, executed and
delivered to the Purchaser and the Trustee, in form satisfactory to the
Purchaser and the Trustee, the performance of every covenant and obligation
of the Seller hereunder and shall benefit from all the rights granted to
the Seller hereunder; and
(ii) the Seller shall have delivered to the Purchaser and the
Trustee an Officer's Certificate of the Seller and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer and
such supplemental agreement comply with this Section and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
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(b) The obligations of the Seller hereunder shall not be assignable nor
shall any Person succeed to the obligations of the Seller hereunder except in
each case in accordance with the provisions of Section 5.06 and this Section.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
AMERICAN HONDA FINANCE
CORPORATION,
as Seller
By:
--------------------------------
Y. Kohama
President
AMERICAN HONDA RECEIVABLES CORP.,
as Purchaser
By:
--------------------------------
Y. Kohama
President
ACCEPTED:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
as Trustee
By:
-----------------------------------
Name:
Title:
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SCHEDULE A
SCHEDULE OF RECEIVABLES
Omitted -- originals on file at the offices
of the Seller, the Purchaser and the Trustee
A-1