HONDA AUTO RECEIVABLES 1997-A GRANTOR TRUST
[]% ASSET BACKED CERTIFICATES, CLASS A
AMERICAN HONDA RECEIVABLES CORP.
(SELLER)
AMERICAN HONDA FINANCE CORPORATION
(SERVICER)
UNDERWRITING AGREEMENT
July [], 1997
Credit Suisse First Boston Corporation
As Representative of the Several Underwriters
Eleven Madison Avenue
New York, New York 10010
Dear Sirs:
1. INTRODUCTORY. American Honda Receivables Corp., a California
corporation (the "Seller"), proposes to sell $[] principal amount of []%
Asset Backed Certificates, Class A (the "Class A Certificates"), issued by
the Honda Auto Receivables 1997-A Grantor Trust (the "Trust"). Each Class A
Certificate will represent a fractional undivided interest in the Trust. The
assets of the Trust will include, among other things, a pool of retail
installment sale contracts secured by the new Honda and Acura automobiles,
sport utility vehicles and minivans financed thereby (the "Receivables") and
certain monies due or received thereunder on or after June 1, 1997 (the
"Cutoff Date"), such Receivables to be sold to the Trust by the Seller and to
be serviced for the Trust by American Honda Finance Corporation, a California
corporation (the "Servicer"). The Class A Certificates will be issued in an
aggregate principal amount of $[], which is equal to []% of
the aggregate principal balance of the Receivables as of the Cutoff Date.
Simultaneously with the issuance and sale of the Class A Certificates as
contemplated herein, the Trust will also issue the []% Asset Backed
Certificates, Class B (the "Class B Certificates", and together with the Class A
Certificates, the "Certificates"), evidencing an undivided ownership interest of
[]% in the Trust, payments in respect of which are, to the extent specified in
the Pooling and Servicing Agreement (as defined below), subordinated to the
rights of the holders of the Class A Certificates. The Certificates will be
issued pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") to be dated as of July 1, 1997, among the Seller, the Servicer and
Bank of Tokyo-Mitsubishi Trust Company, as trustee (the "Trustee"). Credit
Suisse First Boston Corporation shall be the representative of the Underwriters
(the "Representative").
Capitalized terms used herein and not otherwise defined shall have the
meanings given them in the Pooling and Servicing Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants to and agrees with the several underwriters named in
Schedule I hereto (the "Underwriters") that:
(a) The Seller has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement on
Form S-3 (No. 333-18095), including a form of prospectus, relating to the
Certificates. The registration statement as amended has been declared
effective by the Commission. If any post-effective amendment has been filed
with respect thereto, prior to the execution and delivery of this Agreement,
the most recent such amendment has been declared effective by the Commission.
Such registration statement, as amended at the time of effectiveness,
including all material incorporated by reference therein and including all
information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Act, is referred to in
this Agreement as the "Registration Statement." The Seller proposes to file
with the Commission pursuant to Rule 424(b) ("Rule 424(b)") under the Act
form of
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the prospectus included in the Registration Statement relating to the Class A
Certificates and the method of distribution thereof, such prospectus in the
form in which it is filed pursuant to Rule 424(b) being hereinafter referred
to as the "Prospectus."
(b) The Registration Statement on Form S-3, including such
amendments thereto as may be required, relating to the Certificates, has been
filed with the Commission and such Registration Statement as amended has
become effective. The conditions to the use of a shelf registration
statement on Form S-3 under the Act, as set forth in the General Instructions
to Form S-3, have been satisfied with respect to the Seller and the
Registration Statement;
(c) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Seller, threatened by the Commission,
and on the effective date of the Registration Statement, the Registration
Statement and the Prospectus conformed in all respects to the requirements of
the Act and the rules and regulations of the Commission 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 filing of the Prospectus pursuant to Rule 424(b) such documents will
conform in all respects to the requirements of the Act and the Rules and
Regulations, and on the Closing Date 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 will include on the
date of this Agreement and on the Closing Date 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; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information
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relating to any Underwriter furnished to the Seller in writing by such
Underwriter through the Representative expressly for use therein.
(d) The consummation of the transactions contemplated by this
Agreement, the Receivables Purchase Agreement and the Pooling and Servicing
Agreement, and the fulfillment of the terms 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 Seller or the Servicer pursuant to the terms of,
any indenture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement, or other agreement or instrument under which the Seller or
the Servicer is a debtor or guarantor or to which any of their respective
property or assets may be subject.
(e) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required to be obtained or made by
the Seller or the Servicer for the consummation of the transactions contemplated
by this Agreement except such as have been obtained and made under the Act or
the Rules and Regulations, such as may be required under state securities laws
and filing of any financing statements required to perfect the transfer of the
Receivables.
(f) Neither the Seller nor the Servicer 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, in the Receivables Purchase Agreement or in the Pooling and
Servicing Agreement.
(g) The execution, delivery and performance of this Agreement, the
Receivables Purchase Agreement and the Pooling and Servicing Agreement and the
issuance and sale of the Certificates and compliance with the terms and
provisions 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,
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regulation or order of any governmental agency or body or any court having
jurisdiction over the Seller or the Servicer or any of their respective
properties or any agreement or instrument to which the Seller or the Servicer is
a party or by which the Seller or the Servicer is bound or to which any of their
respective properties is subject, or with the articles of incorporation or
by-laws of the Seller or the Servicer, and each of the Seller and the Servicer
has full corporate power and authority to enter into this Agreement, the
Receivables Purchase Agreement and the Pooling and Servicing Agreement and to
consummate the transactions contemplated hereby and thereby.
(h) Each of this Agreement and the Pooling and Servicing Agreement
has been duly authorized, executed and delivered by the Seller and the Servicer.
(i) This Agreement constitutes a valid and binding obligation of,
each of the Seller and the Servicer, enforceable against each of the Seller and
the Servicer in accordance with its terms, except as enforcement thereof may be
subject to or limited by (x) bankruptcy, insolvency, moratorium, reorganization
or other similar laws relating to or affecting the enforcement of creditors'
rights generally, (y) general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (z) rights
to indemnification and contribution which may be limited by applicable law or
equitable principles or otherwise unenforceable as against public policy.
3. PURCHASE, SALE, AND DELIVERY OF CLASS A CERTIFICATES. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Seller agrees to sell
to the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Seller, the aggregate principal amounts of the Class A
Certificates set forth opposite the names of the Underwriters in Schedule I
hereto. The Class A Certificates are to be purchased at the purchase price of
[]% of the aggregate principal amount thereof plus accrued interest at the
Pass-Through Rate calculated from (and including) June [15], 1997, to (but
excluding) the Closing Date.
Against payment of the purchase price in immediately available funds
drawn to the order of the Seller, the
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Seller will deliver the Class A Certificates to the Representative, for the
account of the Underwriters, at the office of Brown & Wood, 555 California
Street, San Francisco, CA 94104, on July [], 1997, at 10:00 a.m., California
time, or at such other time not later than seven full business days thereafter
as the Representative and the Seller determine, such time being herein referred
to as the "Closing Date." The Class A Certificates to be so delivered will be
initially represented by one or more Class A Certificates (the "DTC
Certificates") registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC") and one certificate in definitive form
representing the remaining portion of the Original Class A Certificate Balance
shall be registered in the name of and delivered to the Seller. The interests
of beneficial owners of the DTC Certificates will be represented by book entries
on the records of DTC and participating members thereof. Definitive
Certificates will be available only under the limited circumstances set forth in
the Pooling and Servicing Agreement. The Certificates will be made available
for checking at the above office of Brown & Wood 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 Trust, the Seller and the Underwriters have agreed that the
Closing Date will be not less than five business days following the date hereof.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Class A Certificates for sale to the public as
set forth in the Prospectus.
5. COVENANTS OF THE SELLER. The Seller covenants and agrees with
the several Underwriters that:
(a) The Seller will transmit the Prospectus to the Commission
pursuant to Rule 424(b) by
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a means reasonably calculated to result in the timely filing of the
Prospectus with the Commission pursuant to Rule 424(b).
(b) Before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the Registration
Statement becomes effective, the Seller will furnish to the Representative a
copy of the proposed amendment or supplement for review and will not file any
such proposed amendment or supplement to which the Representative reasonably
objects.
(c) The Seller will advise the Representative promptly, and will
confirm such advice in writing, (i) when any amendment to the Registration
Statement shall have become effective, (ii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceeding for that purpose,
and (iv) of the receipt by the Seller of any notification with respect to any
suspension of the qualification of the Certificates for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the issuance of any such stop
order or notification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(d) The Seller will arrange for the qualification of the Class A
Certificates for offering and sale under the securities laws of such
jurisdictions in the United States as the Representative may reasonably
designate and to continue such qualifications in effect so long as necessary
under such laws for the distribution of such Class A Certificates, provided that
in connection therewith the Seller 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 jurisdiction.
(e) If, at any time when the delivery of a prospectus shall be
required by law in connection with sales of any Class A Certificates, either (i)
any event shall have occurred as a result of which the Prospectus would include
any 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
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under which they were made, not misleading, or (ii) for any other reason it
shall be necessary to amend or supplement the Prospectus, the Seller will
promptly notify the Representative and will promptly prepare and file with the
Commission, at its own expense, an amendment or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance.
Neither your 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 hereof.
(f) The Seller will cause the Trust to make generally available to
Class A Certificateholders, as soon as practicable, but no later than sixteen
months after the Effective Date, an earnings statement of the Trust covering a
period of at least twelve consecutive months beginning after such Effective Date
and satisfying the provisions of Section 11(a) of the Act (including Rule 158
promulgated thereunder).
(g) The Seller will furnish to you copies of the Registration
Statement (one of which will be signed and include all exhibits), each related
preliminary prospectus, the Prospectus and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as the
Representative may from time to time reasonably request.
(h) So long as any of the Class A Certificates are outstanding, the
Seller will furnish to the Representative copies of all reports or other
communications (financial or otherwise) furnished or made available to Class A
Certificateholders, and deliver to the Representative during such same period,
(i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission and (ii) such additional
information concerning the business and financial condition of the Seller as the
Representative may from time to time reasonably request.
(i) Whether or not the transactions contemplated by this Agreement
are consummated, the Seller, subject to the provisions of Section 8 hereof, will
pay or cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including (i) any filing fees, (ii) any fees charged
by Moody's Investors Service ("Moody's") and Standard & Poor's Ratings Services,
a
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Division of the McGraw-Hill Companies, Inc. ("Standard & Poor's" and, together
with Moody's, the "Rating Agencies") for the rating of the Class A Certificates,
(iii) the expenses incurred in printing, reproducing and distributing the
registration statement as filed, the Registration Statement, preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto required pursuant to Section 5(d) hereof) and (iv) the reasonable
expenses of the Representative, including the reasonable fees and disbursements
of counsel to the Representative, in connection with the initial qualification
of the Class A Certificates for sale in the jurisdictions that the
Representative may designate pursuant to Section 5(c) hereof.
(j) On or before the Closing Date, the Seller shall cause its and the
Servicer's computer records relating to the Receivables to be marked to show the
Trust's absolute ownership of the Receivables, and from and after the Closing
Date neither the Seller nor the Servicer shall take any action inconsistent with
the Trust's ownership of such Receivables, other than as permitted by the
Pooling and Servicing Agreement.
(k) To the extent, if any, that the rating provided with respect to
the Class A Certificates by either Rating Agency is conditional upon the
furnishing of documents or the taking of any other actions by the Seller, the
Seller shall furnish such documents and take any such other actions.
(l) On or before the Closing Date, the Seller shall furnish or make
available to the Underwriters or their counsel such additional documents and
information regarding the Seller and the Servicer and their affairs as the
Underwriters may from time to time reasonably request, including any and all
documentation reasonably requested in connection with their due diligence
efforts regarding information in the Prospectus and in order to evidence the
accuracy or completeness of any of the conditions contained in this Agreement.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Class A
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Seller, to the accuracy of the statements of
officers of the Seller made pursuant to the
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provisions hereof, to the performance by the Seller of its obligations hereunder
and to the following additional conditions precedent:
(a) At the time this Agreement is executed and delivered by the
Seller and at the Closing Date, KPMG Peat Marwick shall have furnished to the
Representative letters dated, respectively, as of the date of this Agreement and
as of the Closing Date substantially in the forms of the drafts to which the
Representative previously agreed.
(b) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing by
the Rules and Regulations and in accordance with Section 5(a) of this Agreement;
and, as of the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such purpose
shall be pending before or, to the knowledge of the Seller, threatened by the
Commission; and all requests for additional information from the Commission with
respect to the Registration Statement shall have been complied with to the
satisfaction of the Representative.
(c) You shall have received an officer's certificate, dated the
Closing Date, signed by the Chairman of the Board, the President or any Vice
President and by a principal financial or accounting officer of the Seller
representing and warranting that, as of the Closing Date, the representations
and warranties of the Seller in this Agreement are true and correct, that the
Seller 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, that no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the best
of their knowledge, are contemplated by the Commission.
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Seller, Honda Motor Co. Ltd., American Honda Motor Co., Inc. ("AHMC") or the
Servicer which, in the judgment of a majority in interest of the Underwriters
ncluding the Representative, materially impairs the investment quality
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of the Class A Certificates or makes it impractical or inadvisable to proceed
with completion of the sale of and payment for the Class A Certificates; (ii)
any downgrading in the rating of any debt securities of AHMC or any of its
direct or indirect subsidiaries by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any such debt securities (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) 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; (iv) any banking moratorium declared by
Federal, California or New York authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any declaration of
war by Congress or any other 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 sale of and payment for the Class A Certificates.
(e) Brown & Wood LLP will have furnished to the Representative their
written opinion, dated the Closing Date, to the effect that:
(i) Each of the Seller and the Servicer has been duly
incorporated and is validly existing as a 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; and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or the
ownership of its property 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 this Agreement, the Receivables
Purchase Agreement or the Pooling or Servicing Agreement.
(ii) The Pooling and Servicing Agreement and the Receivables
Purchase Agreement have been duly
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authorized, executed and delivered by, and, assuming the due authorization,
execution and delivery thereof by the Trustee, each constitutes a valid and
binding obligation of, each of the Seller and the Servicer, enforceable
against each of the Seller and the Servicer in accordance with their
respective terms, except as enforcement thereof may be subject to or
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(iii) The execution, delivery and performance of this Agreement,
the Pooling and Servicing Agreement and the Receivables Purchase Agreement
by each of the Seller and the Servicer 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 properties or assets of the Seller or the
Servicer pursuant to the terms of the Articles of Incorporation or the
By-Laws of the Seller or the Servicer, or to the best of such counsel's
knowledge and information, any statute, any rule, regulation or order of
any governmental agency or body or any court having jurisdiction over the
Seller or the Servicer or any of their respective properties or, to the
best of their knowledge and information, any agreement or instrument to
which the Seller or the Servicer is a party or by which either the Seller
or the Servicer or any of their respective properties is bound.
(iv) No authorization, approval or consent of, any court or
governmental agency or authority is necessary in connection with the
execution, delivery and performance by the Seller or the Servicer of this
Agreement, the Pooling and Servicing Agreement or the Receivables Purchase
Agreement, except for (x) such as may be required under the Act or the
Rules and Regulations, (y) such as may be required under state securities
laws, and (z) except for 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.
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(v) The Class A Certificates have been duly authorized and, when
executed and authenticated by the Trustee in accordance with the Pooling
and Servicing Agreement and delivered and paid for pursuant to this
Agreement will be validly issued and outstanding and entitled to the
benefits provided by the Pooling and Servicing Agreement.
(vi) The Registration Statement has become effective under the
Act and the Prospectus has been filed with the Commission, pursuant to Rule
424(b) promulgated under the Act; to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration Statement
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 (other than the financial and statistical information
therein as to which such counsel express no opinion), as of their
respective effective date or date of issuance, complied as to form in all
material respects with the requirements of the Act and the rules and
regulations promulgated thereunder; such counsel has no reason to believe
that the Registration Statement 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, included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that such counsel need express no
opinion as to the financial, numerical, statistical and quantitative
information contained in the Registration Statement or the Prospectus.
(vii) Such counsel does not know of any contracts or documents of
a character required to be described in the Registration Statement or the
Prospectus which are not described and filed as required.
(viii) To the best of their knowledge, there are no legal or
governmental proceedings pending to which the Seller or the Servicer is a
party or of which any property of the Seller or the Servicer is
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the subject, and no such proceedings are known by such counsel to be
threatened or contemplated by governmental authorities or threatened by
others, in each case (A) that are required to be disclosed in the
Registration Statement or the Prospectus or (B) (1) asserting the
invalidity of all or part of this Agreement, the Receivables Purchase
Agreement, the Pooling and Servicing Agreement or the Certificates, (2)
seeking to prevent the issuance of the Certificates, (3) that could
materially and adversely affect the Seller's or the Servicer's obligations
under this Agreement, the Receivables Purchase Agreement or the Pooling and
Servicing Agreement or (4) seeking to affect adversely the income tax
attributes of the Trust or the Class A Certificates.
(ix) Immediately prior to the transfer of Receivables by the
Servicer pursuant to the Receivables Purchase Agreement, the Servicer was
the sole owner of all right, title and interest in the Receivables and the
other property to be transferred by it to the Seller. The Servicer has
full power and authority to sell and assign the property to be sold and
assigned to the Seller pursuant to the Receivables Purchase Agreement and
has duly authorized such sale and assignment to the Seller by all necessary
corporate action.
(x) 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.
(xi) Such counsel is familiar with the Servicer's standard
operating procedures relating to the Servicer's acquisition of a perfected
first priority security interest in the vehicles financed by the Servicer
pursuant to retail installment sale contracts in the ordinary course of the
Servicer's business. Assuming that the Servicer's standard procedures are
followed with respect to the perfection of security interests in the
Financed Vehicles (and such counsel has no reason to believe that the
Servicer has not or will not continue to follow its standard procedures in
connection with the perfection of security interests in the Financed
Vehicles), the Servicer has acquired
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or will acquire a perfected first priority security interest in the
Financed Vehicles.
(xii) The Seller has full power and authority to sell and assign
the property to be sold and assigned to the Trust pursuant to the Pooling
and Servicing Agreement and has duly authorized such sale and assignment to
the Trust by all necessary corporate action.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Seller and the Servicer.
(xiv) The statements in the Prospectus under the captions
"Certain Legal Aspects of the Receivables," to the extent they constitute
matters of law or legal conclusions, have been reviewed by such counsel and
are correct in all material respects.
(xv) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
is not required to be registered as an "investment company" under the
Investment Company Act of 1940, as amended.
(xvi) The Class A Certificates, the Pooling and Servicing
Agreement, the Receivables Purchase Agreement and this Agreement each
conform in all material respects with the descriptions thereof contained in
the Registration Statement and the Prospectus.
(xvii) The Trust created by the Pooling and Servicing Agreement
will not be classified as an association (or publically traded partnership)
taxable as a corporation for federal income tax purposes and, instead,
under subpart E, part I, of subchapter J of the Internal Revenue Code of
1986, as amended, the Trust will be treated as a grantor trust and, subject
to possible recharacterization of certain fees paid by the Trust, each
Class A Certificateholder will be treated as the owner of an undivided
interest in the income and corpus attributable to the trust fund.
(xviii) The Trust will not be classified as a separate entity
subject to California or New York
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income, franchise or other taxes measured by income, profits, capital, or
receipts.
(xix) Class A Certificateholders who would not otherwise be
subject to tax imposed by California or New York will not be subject to
California or New York income or franchise taxes with respect to interest
or other amounts (including payments from the Yield Supplement Account)
which are allocable to such Class A Certificateholders solely as a result
of such Class A Certificateholders' beneficial ownership of a Class A
Certificate.
(xx) The statements in the Registration Statement and Prospectus
under the heading "ERISA Considerations" and "Federal Income Tax
Consequences," to the extent that they constitute matters of law or legal
conclusions with respect thereto, have been prepared or reviewed by such
counsel and are correct in all material respects.
Such opinion may be made subject to the qualifications that the
enforceability of the terms of the Pooling and Servicing Agreement and the
Receivables Purchase Agreement may be subject to or limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(f) Brown & Wood LLP shall have furnished their written opinion,
dated the Closing Date, with respect to the characterization as a sale of the
transfer of the Receivables by the Servicer to the Seller and from the Seller to
the Trust and such opinion shall be in substantially the form previously
discussed with the Representative and its counsel and in any event satisfactory
in form and in substance to the Representative and its counsel.
(g) You shall have received an opinion of Skadden, Arps, Slate,
Meagher & Flom LLP, dated the Closing Date, with respect to the validity of the
Class A Certificates and such other related matters as the Representative shall
require and the Seller shall have furnished or caused to be furnished to such
counsel such documents as they may
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reasonably request for the purpose of enabling them to pass upon such matters.
(h) You shall have received an opinion addressed to you, the Seller
and the Servicer of Pryor, Cashman, Sherman & Flynn, counsel to the Trustee,
dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) The Trustee has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
New York with full corporate trust power and authority to enter into and
perform its obligations under the Pooling and Servicing Agreement.
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee, and assuming
authorization, execution and delivery thereof by the Seller and the
Servicer, the Pooling and Servicing Agreement constitutes a legal, valid
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, except (1) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights, and
(2) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
(iii) The execution and delivery by the Trustee of the Pooling
and Servicing Agreement and the performance by the Trustee of its duties
thereunder do not conflict with or result in a violation of (a) any law or
regulation of the United States of America or the State of New York, (b)
the charter or by-laws of the Trustee, (c) any order, writ, judgment or
decree or (d) any agreement, instrument, order, writ judgment or decree
known to such counsel to which the Trustee is a party or is subject.
(iv) The Class A Certificates have been duly executed,
authenticated and delivered by the Trustee.
17
(v) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body of the
United States of America or the State of New York having jurisdiction over
the trust powers of the Trustee is required for the consummation on the
part of the Trustee of any of the transactions contemplated in the Pooling
and Servicing Agreement, except such as have been obtained.
(vi) If the Trustee were acting as Servicer under the Pooling and
Servicing Agreement at the date of this Agreement, the Trustee would have
the power and authority to perform the obligations of the Servicer as
provided in the Pooling and Servicing Agreement.
(i) Sheppard, Mullin, Richter & Hampton shall have furnished to the
Representative their written opinion, dated the Closing Date, to the effect that
the blank forms of contracts reviewed by such counsel comply, or complied when
in use, in all respects with all applicable disclosure requirements under the
Federal Consumer Credit Protection Act, 15 U.S.C. Sections 1601 ET SEQ., and
Regulation Z issued pursuant thereto, as interpreted in the Official Staff
Commentary, and applicable California disclosure laws.
(j) The Representative shall have received an officer's certificate
dated the Closing Date of the Chairman of the Board, the President or any Vice
President and by a principal financial or accounting officer of each of the
Seller and the Servicer in which each such officer shall state that, to the best
of such officer's knowledge after reasonable investigation, the representations
and warranties of the Seller or the Servicer, as applicable, contained in the
Pooling and Servicing Agreement and the representations and warranties of the
Seller or the Servicer, as applicable, contained in the Receivables Purchase
Agreement are true and correct in all material respects and that the Seller or
the Servicer, 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 in all material respects.
(k) The Representative shall have received a letter or letters from
each counsel delivering any written
18
opinion to any Rating Agency in connection with the transaction described herein
which is not otherwise described in this Agreement allowing the Underwriters to
rely on such opinion as if it were addressed to the Underwriters.
(l) The Class A Certificates shall have been rated in the highest
rating category by Moody's and Standard & Poor's.
(m) The Seller 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 Seller and the Servicer
will, jointly and severally, indemnify and hold each Underwriter harmless
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 in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that neither the Seller nor the
Servicer 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 Seller 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.
19
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Seller and the Servicer against any losses, claims, damages or
liabilities to which the Seller or the Servicer 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 in the Registration
Statement, the Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Seller by such Underwriter
through the Representative specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Seller or the Servicer in
connection with investigating or defending any such action or claim as such
expenses are incurred; it being understood and agreed that the only such
information furnished by any Underwriters consists of the following information
in the Prospectus furnished on behalf of the Underwriters: [the last paragraph
at the bottom of the cover page concerning the terms of the offering by the
Underwriters, the legend concerning overallotments and stabilizing on the inside
front cover page and the concession and reallowance figures appearing under the
caption "Plan of Distribution"].
(c) Promptly after receipt by an indemnified party under this Section
of written notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. 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
20
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 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 and 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 Seller on the one hand and the Underwriters on the other from the offering
of the Class A Certificates or (ii) if the allocation provided by the
immediately preceding clause (i) is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits referred to in clause (i) above but also the relative fault of
the Seller on the one hand and the Underwriters on the other in connection with
the statement or omission which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Seller 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 Seller 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
21
the omission or alleged omission to state a material fact relates to information
supplied by the Seller or by 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). 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 Seller and the Servicer under this Section
shall be in addition to any liability which the Seller or the Servicer 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 Seller or
the Servicer, to each officer of the Seller who has signed the Registration
Statement and to each person, if any, who controls the Seller or the Servicer
within the meaning of the Act.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller or the Servicer or any of their officers and of the
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, the Seller or the Servicer or
any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Class A
Certificates. If this Agreement is terminated pursuant to Section 9 or if for
any reason the purchase of the Class A Certificates by the Underwriters is not
consummated, the Seller
22
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 hereof and the respective obligations of the Seller, the
Servicer and the Underwriters pursuant to Section 7 hereof shall remain in
effect. If the purchase of the Class A Certificates by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 9 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 6(d) hereof, the Seller and the Servicer
will reimburse the Underwriters for all out-of-pocket expenses (including the
reasonable fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Class A Certificates.
9. FAILURE TO PURCHASE THE CLASS A CERTIFICATES. If any Underwriter
or Underwriters default on its obligations to purchase Class A Certificates
hereunder on the Closing Date and the aggregate principal amount of Certificates
that such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total principal amount of Certificate that the
Underwriters are obligated to purchase on such Closing Date, the Representative
may make arrangements satisfactory to the Seller for the purchase of such
Certificates by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Certificates 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 Certificates with respect to which
such default or defaults exceeds 10% of the total principal amount of
Certificates that the Underwriters are obligated to purchase on such Closing
Date and arrangements satisfactory to the Representative and the Seller for the
purchase of such Certificates 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 Seller, except as provided in Section
8. 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 or Underwriters from liability for its default.
23
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Representative or the Underwriters, will be mailed, delivered or
sent by facsimile transmission and confirmed to Credit Suisse First Boston
Corporation, Eleven Madison Avenue, New York, New York 10010, Attention:
Investment Banking Department Transactions Advisory Group (facsimile number
(310) 787-3910); if sent to the Seller, will be mailed, delivered or sent by
facsimile transmission and confirmed to it at American Honda Receivables Corp.,
700 Van Ness Avenue, Torrance, California 90501, attention of John I. Weisickle
(facsimile number (310) 787-3910); and if sent to the Servicer, will be mailed,
delivered or sent by facsimile transmission and confirmed to it at American
Honda Finance Corporation, 700 Van Ness Avenue, Torrance, California 90501,
attention of John I. Weisickle (facsimile number (310) 787-3910).
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the Underwriters, the Seller and the Servicer 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 obligations hereunder.
12. REPRESENTATIONS OF UNDERWRITERS. The Representative will act for
the several Underwriters in connection with the transactions described in this
Agreement, and any action taken by the Representative under this Agreement will
be binding upon all the Underwriters.
13. APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York. The Seller and
the Servicer each submit to the non-exclusive 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.
14. COUNTERPARTS. This agreement may be executed by each of the
parties hereto in any number of counterparts, and by each of the parties hereto
on separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon it will
become a binding agreement among the Seller, the Servicer and the several
Underwriters in accordance with its terms.
Very truly yours,
AMERICAN HONDA RECEIVABLES CORP.,
by
----------------------------------
Name: Y. Kohama
Title: President
AMERICAN HONDA FINANCE CORPORATION
by
----------------------------------
Name: Y. Kohama
Title: President
Accepted in New York, New York,
as of the date hereof:
CREDIT SUISSE FIRST BOSTON CORPORATION
by
------------------------------
Name: Philip N. Weingord
Title: Managing Director
Acting on behalf of itself and
as the Representative of the
several Underwriters.
25
SCHEDULE I
Principal Amount
of Class A
Underwriter Certificates
- ----------- -----------------
Credit Suisse First Boston Corporation . . . . . . . . . . []
Total. . . . . . . . . . . . . . . . . . . . . $[]
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