EXECUTION COPY
AMERICAN HONDA FINANCE CORPORATION,
as Seller,
and
AMERICAN HONDA RECEIVABLES CORP.,
as Purchaser
RECEIVABLES PURCHASE AGREEMENT
Dated as of January 1, 2002
TABLE OF CONTENTS
Page
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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......................... 10
ARTICLE FOUR
TERMINATION
Section 4.01 Termination................................................... 10
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
Section 5.05 Severability of Provisions.................................... 12
Section 5.06 Assignment.................................................... 12
Section 5.07 Further Assurances............................................ 12
Section 5.08 No Waiver; Cumulative Remedies................................ 12
Section 5.09 Counterparts.................................................. 13
Section 5.10 Third-Party Beneficiaries..................................... 13
Section 5.11 Headings...................................................... 13
Section 5.12 Seller Indemnification........................................ 13
Section 5.13 Merger, Consolidation or Assumption of the Obligations
of the Seller........................................... 13
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SCHEDULES
Schedule A - Schedule of Receivables........................................ A-1
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This Receivables Purchase Agreement, dated as of January 1, 2002, is
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 Owner 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 January 29, 2002.
"Cutoff Date" means January 1, 2002.
"Delaware Trustee" means U.S. Bank Trust National Association, as
Delaware Trustee under the Trust Agreement.
"Indenture" means the Indenture, dated as of January 1, 2002, between
the Issuer and the Indenture Trustee.
"Indenture Trustee" means JPMorgan Chase Bank, as indenture trustee
under the Indenture.
"Issuer" means Honda Auto Receivables 2002-1 Owner Trust, a Delaware
business trust.
"Owner Trustee" means U.S. Bank National Association, as owner trustee
under the Trust Agreement.
"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 $2,082,211,927.51.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of January 1, 2002, among American Honda Receivables Corp., as seller,
American Honda Finance Corporation, as servicer, and the Issuer.
"Schedule of Receivables" means the schedule of receivables attached as
Schedule A hereto.
"Seller" means American Honda Finance Corporation, in its capacity as
seller of the Receivables under this Agreement, and its successors and assigns.
"Servicer" means American Honda Finance Corporation in its capacity as
servicer under the Sale and Servicing Agreement and its successors and assigns.
"Trust Agreement" means the trust agreement dated January 8, 2002, as
amended and restated on January 29, 2002 among American Honda Receivables Corp.,
as depositor, the Owner Trustee, and U.S. Bank Trust National Association, as
Delaware Trustee.
"Trustees" means the Indenture Trustee, the Owner Trustee and the
Delaware Trustee.
"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 Sale 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;
the term "proceeds" shall have the meaning set forth in the applicable UCC; and
the word "including" means including without limitation.
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01 Conveyance of Receivables.
(a) The Seller hereby sells, transfers, assigns, sets over and
otherwise conveys to the Purchaser, and the Purchaser hereby purchases from the
Seller, without recourse (subject to the Seller's obligations hereunder), all of
the right, title and interest of the Seller in, to and under 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)) on or after the Cutoff Date;
(ii) the security interests in the Financed Vehicles;
(iii) any proceeds of any 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;
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(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 Issuer; and
(vi) the proceeds of any and all 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
chattel paper (as defined in Section 9-102 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 to the Indenture Trustee 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 this
Section and all proceeds of any of the foregoing. The parties intend that this
Agreement constitute a security agreement under applicable law. Such grant is
made to secure the payment of all amounts payable hereunder, including, without
limitation, the Receivables Purchase Price.
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.
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(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 conduct of its business
(including the servicing of the Receivables as required by the Sale 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 business as such
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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.
(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
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to the Issuer. Upon discovery by the Seller or the Purchaser 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 to the Purchaser 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, and no
selection procedures believed to be adverse to the Securityholders were
utilized in selecting the Receivables from those motor vehicle
receivables of the Seller which met the selection criteria set forth in
this Agreement.
(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 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
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holder thereof 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 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 thereof, all necessary steps shall be taken so
that 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 in whole or in part from the lien granted by the
related Receivable.
(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.
(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.
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(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 applicable 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 the transfer of the Securities shall be
unlawful, void or voidable.
(xvi) All Filings Made. Both the Seller and the Purchaser,
respectively, have caused or will have caused, within ten days of the
Closing Date, the filing of all appropriate financing statements
(including UCC filings) necessary in the appropriate jurisdictions
under the applicable law the Indenture 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 "tangible
chattel paper" as defined within the meaning of the applicable 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 than 59 months; (B) each
Receivable shall provide for payment of a finance charge or shall yield
interest calculated on the basis of an APR ranging from 2.90% to
16.49%; (C) each Receivable shall have had an original principal
balance of not less than $1,957.61 nor more than $75,382.34 and, as of
the Cutoff Date, an average unpaid principal balance of $13,931.29; (D)
each Receivable was originated on or after May 23, 1997 and on or prior
to September 27, 2001; (E) each Financed Vehicle shall be a new or used
Honda or Acura motor vehicle; (F) the Obligor under each Receivable had
a current billing address in the United States as of the Cutoff Date;
and (G) no Receivable shall have a Scheduled Payment that is more than
30 days past due as of the Cutoff Date.
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(xx) Possession of Documents. The Servicer has in its possession
all original copies of the agreements that constitute or evidence the
Receivables. The agreements that constitute or evidence the Receivables
do not have any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the
Indenture Trustee (pursuant to and as provided in the Sale and
Servicing Agreement and the Indenture). All financing statements filed
or to be filed against the Seller in favor of Purchaser and assigned to
the Indenture Trustee in connection herewith describing the Receivables
contain a statement to the following effect: "A purchase of or security
interest in any collateral described in this financing statement will
violate the rights of the Indenture Trustee."
(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 the Sale and
Servicing Agreement. The Purchaser, the Seller, the Issuer, the Owner Trustee or
the Indenture 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 Noteholders in 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 Noteholders 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 the 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 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 Noteholders 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, the Issuer, the
Owner Trustee or the Indenture Trustee, as applicable, shall execute 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, the
Issuer, the Trustees or the Securityholders 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.
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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 Noteholders 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 Sale 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) 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 Sale and
Servicing Agreement, reschedule, revise or defer payments due on any Receivable.
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) $2,014,244,815.41, the net cash proceeds from
the public offering by the Purchaser of the Notes and (ii) $11,981,085.11, 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 Issuer as provided in the Trust Agreement.
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ARTICLE FIVE
MISCELLANEOUS PROVISIONS
Section 5.01 Amendment.
(a) This Agreement may be amended from time to time by the Purchaser
and the Seller, without the consent of the Securityholders, 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 Sale and Servicing
Agreement; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel to the Purchaser delivered to the Indenture Trustee,
adversely affect in any material respect the interests of the Securityholders.
(b) This Agreement may also be amended from time to time by the
Purchaser and the Seller with the consent of the Indenture Trustee, the consent
of the Holders of Notes evidencing at least a majority of the Outstanding Amount
of the Notes and the consent of the Holders (as such term is defined in the
Trust Agreement) of Certificates evidencing at least a majority of all the
percentage interests evidenced by the Certificates, 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.
(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 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 9-507(c) 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
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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 CALIFORNIA, 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, in the case
of (i) the Purchaser, to American Honda Receivables Corp., 700 Van Ness Avenue,
Building 300, Torrance, California 90501, Attention: President; (ii) the Seller,
to American Honda Finance Corporation, 700 Van Ness Avenue, Building 300,
Torrance, California 90501, Attention: President; and (iii) the Indenture
Trustee, to JPMorgan Chase Bank, 450 West 33rd Street, 14th Floor, New York, New
York 10001, Attention: Institutional Trust Services, Honda 2002-1; 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 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 covenants, agreements, provisions or terms of
this Agreement or any amendment or supplement hereto.
Section 5.06 Assignment. This Agreement may not be assigned by the
Purchaser or the Seller except as contemplated by this Section and the Sale 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 Issuer, which in turn, will pledge its rights
to the Indenture Trustee for the benefit of the Noteholders as provided in
Section 2.01 of the Sale and Servicing Agreement, to which the Seller hereby
expressly consents. The Seller agrees to perform its obligations hereunder for
the benefit of the Issuer and that the Indenture 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 Issuer or the Indenture 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 Issuer or the Seller,
any right, remedy, power or
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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, the Issuer and the
Indenture Trustee for the benefit of the Noteholders, both of which shall be
considered to be third-party beneficiaries hereof. Except as otherwise provided
in this Agreement, no other Person will have any right or obligation hereunder.
Section 5.11 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 5.12 Seller Indemnification.
(a) Purchaser, Issuer and Securityholders. The Seller shall indemnify
and hold harmless the Purchaser, the Issuer and the Securityholders 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
Issuer or the Securityholders if such acts, omissions or alleged acts or
omissions constitute negligence or willful misconduct by the Purchaser, the
Issuer or the Securityholders.
(b) Trustees. The Seller shall indemnify, defend and hold harmless the
Trustees 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 Trustees 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 5.13 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
13
the United States, any state thereof 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 Indenture Trustee, in form satisfactory to the
Purchaser and the Indenture 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
Indenture 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.
(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: /s/ Y. Kohama
-----------------------------------
Name: Y. Kohama
Title: President
AMERICAN HONDA RECEIVABLES CORP.,
as Purchaser
By: /s/ Y. Kohama
-----------------------------------
Name: Y. Kohama
Title: President
SCHEDULE A
SCHEDULE OF RECEIVABLES
Omitted -- originals on file at the offices
of the Seller, the Purchaser and the Indenture Trustee
A-1