$1,014,853,000
HONDA AUTO RECEIVABLES 2003-5 OWNER TRUST
$234,000,000 1.14% ASSET BACKED NOTES, CLASS A-1
$250,000,000 1.57% ASSET BACKED NOTES, CLASS A-2
$305,000,000 2.30% ASSET BACKED NOTES, CLASS A-3
$225,853,000 2.96% ASSET BACKED NOTES, CLASS A-4
AMERICAN HONDA RECEIVABLES CORP.
UNDERWRITING AGREEMENT
December 8, 2003
Banc of America Securities LLC,
as Representative of the Several Underwriters
231 S. LaSalle Street, 16th Floor
Chicago, Illinois 60697
Ladies and Gentlemen:
1. Introductory. American Honda Receivables Corp., a California
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to cause the Honda Auto Receivables 2003-5 Owner Trust (the
"Trust") to issue and sell $234,000,000 aggregate principal amount of 1.14%
Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), $250,000,000 aggregate
principal amount of 1.57% Asset Backed Notes, Class A-2 (the "Class A-2 Notes")
$305,000,000 aggregate principal amount of 2.30% Asset Backed Notes, Class A-3
(the "Class A-3 Notes") and $225,853,000 aggregate principal amount of 2.96%
Asset Backed Notes, Class A-4 (the "Class A-4 Notes" and together with the Class
A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the "Notes"). The Notes
will be issued pursuant to the Indenture, to be dated as of December 1, 2003
(the "Indenture"), between the Trust and The Bank of New York (the "Indenture
Trustee").
Concurrently with the issuance and sale of the Notes as contemplated
herein, the Trust will issue $28,697,894.52 aggregate principal amount of
certificates of beneficial interest (the "Certificates"), each representing an
interest in the Owner Trust Estate. The Company will retain the Certificates.
The Certificates will be issued pursuant to the Amended and Restated Trust
Agreement, to be dated December 16, 2003 (the "Trust Agreement"), between the
Company and Deutsche Bank Trust Company Delaware, as owner trustee (the "Owner
Trustee"). The Certificates are subordinated to the Notes.
The assets of the Trust will include, among other things, a pool of
retail installment sale and conditional sale contracts secured by new and used
Honda and Acura motor vehicles (the "Receivables"), with respect to Actuarial
Receivables, certain monies due
thereunder on or after December 1, 2003 (the "Cutoff Date"), and with respect to
Simple Interest Receivables, certain monies due or received thereunder on or
after the Cutoff Date, such Receivables to be sold to the Trust by the Company
and to be serviced for the Trust by American Honda Finance Corporation ("AHFC"
or, in its capacity as servicer, the "Servicer"). Capitalized terms used but not
defined herein have the meanings ascribed thereto in the Sale and Servicing
Agreement, to be dated as of December 1, 2003 (the "Sale and Servicing
Agreement"), by and among the Trust, the Company and the Servicer or, if not
defined therein, in the Indenture, the Trust Agreement or the Receivables
Purchase Agreement, to be dated as of December 1, 2003 between AHFC and the
Company (the "Receivables Purchase Agreement"), as the case may be. As used
herein, "Basic Documents" shall have the meaning specified in the Sale and
Servicing Agreement. The Company hereby agrees with the several Underwriters
named in Schedule A hereto (collectively, the "Underwriters") as follows:
2. Representations and Warranties of the Company and AHFC. The Company
and AHFC, jointly and severally, represent and warrant to, and agree with, the
several Underwriters that:
(a) A registration statement on Form S-3 (No. 333-104875),
including a prospectus, relating to the Notes has been filed with the
Securities and Exchange Commission (the "Commission") and has become
effective. Such registration statement, as amended as of the date of
the Agreement is hereinafter referred to as the "Registration
Statement," and the prospectus included in such Registration Statement,
as supplemented to reflect the terms of the Notes as first filed with
the Commission after the date of this Agreement pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of
1933, as amended (the "Act"), including all material incorporated by
reference therein, is hereinafter referred to as the "Prospectus."
(b) On the effective date of the Registration Statement
relating to the Notes, such Registration Statement conformed in all
respects to the requirements of the Act and the rules and regulations
of the Commission promulgated under the Act (the "Rules and
Regulations") and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and on the
date of this Agreement, the Registration Statement conforms, and at the
time of the filing of the Prospectus in accordance with Rule 424(b),
the Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents includes or will include any untrue
statement of a material fact or omits or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The preceding sentence does not
apply to statements in or omissions from the Registration Statement or
the Prospectus based upon written information furnished to the Company
by any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such information
is that described as such in Section 7(b).
2
(c) The Notes are "asset backed securities" within the meaning
of, and satisfy the requirements for use of, Form S-3 under the Act.
(d) The documents incorporated by reference in the
Registration Statement and Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations of the Commission thereunder.
(e) The Company will cause to be filed with the Commission on
December 9, 2003 the Current Report on Form 8-K with respect to the
Term Sheet dated December 8, 2003 relating to the Notes (the "Term
Sheet").
(f) Each of the Company and AHFC has been duly incorporated
and is an existing corporation in good standing under the laws of the
State of California, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus; and each of the Company and AHFC is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(g) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company, AHFC or the Trust for the consummation
of the transactions contemplated by this Agreement and the Basic
Documents in connection with the issuance of the Notes and the
Certificates and the sale by the Company of the Notes, except such as
have been obtained and made under the Act, such as may be required
under state securities laws and the filing of any financing statements
required to perfect the Company's, the Trust's and the Indenture
Trustee's interest in the Receivables, which financing statements will
be filed in the appropriate offices prior to the Closing Date (as such
term is defined in Section 3).
(h) Neither the Company nor AHFC is in violation of its
Articles of Incorporation or By-laws or in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any agreement or instrument to which it is a party or by
which it or its properties are bound which could have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents. The execution, delivery and performance of this Agreement
and the Basic Documents by the Company and AHFC, and the issuance of
the Notes and the Certificates and the sale by the Company of the Notes
and the compliance by the Company and AHFC with the terms and
provisions hereof and thereof will not, subject to obtaining any
consents or approvals as may be required under the securities or "blue
sky" laws of various jurisdictions, result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company
or AHFC or any of their
3
respective properties, or any agreement or instrument to which
the Company or AHFC is a party or by which the Company or AHFC is bound
or to which any of the properties of the Company or AHFC is subject, or
the Articles of Incorporation or By-laws of the Company and AHFC, and
the Company has full power and authority to authorize the issuance of
the Notes and the Certificates and to sell the Notes as contemplated by
this Agreement, the Indenture and the Trust Agreement, and each of the
Company and AHFC has full power and authority to enter into this
Agreement and the Basic Documents and to consummate the transactions
contemplated hereby and thereby.
(i) On the Closing Date, the Company will have directed the
Owner Trustee to authenticate and execute the Certificates and, when
delivered and paid for pursuant to the Trust Agreement, the
Certificates will have been duly issued and delivered and will
constitute valid and legally binding obligations of the Trust, entitled
to the benefits provided in the Trust Agreement and enforceable in
accordance with their terms.
(j) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company
or AHFC or any of their respective properties that, if determined
adversely to the Company or AHFC, would individually or in the
aggregate have a material adverse effect on the condition (financial or
other), business or results of operations of the Company or AHFC,
respectively, or would materially and adversely affect the ability of
the Company or AHFC to perform its obligations under this Agreement or
the other Basic Documents to which it is a party, or which are
otherwise material in the context of the issuance and sale of the Notes
or the issuance of the Certificates; and no such actions, suits or
proceedings are threatened or, to the Company's or AHFC's knowledge,
contemplated.
(k) As of the Closing Date, the representations and warranties
of the Company and AHFC contained in the Basic Documents will be true
and correct.
(l) This Agreement has been duly authorized, executed and
delivered by each of the Company and AHFC.
(m) The Company has authorized the conveyance of the
Receivables to the Trust, and, as of the Closing Date, the Company has
directed the Trust to execute and issue the Notes and the Certificates
and to sell the Notes.
(n) The Company's assignment and delivery of the Receivables
to the Trust as of the Closing Date will vest in the Trust all of the
Company's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(o) The Trust's assignment of the Receivables to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture Trustee,
for the benefit of the
4
Noteholders, a first priority perfected security interest therein,
subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
(p) The computer tape of the Receivables created as of
December 1, 2003, and made available to the Representative by the
Servicer was complete and accurate as of the date thereof and includes
an identifying description of the Receivables that are listed on
Schedule A to the Sale and Servicing Agreement.
(q) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of this
Agreement, the Basic Documents, the Notes and the Certificates and any
other agreements contemplated herein or therein shall have been paid or
will be paid by the Company at or prior to the Closing Date to the
extent then due.
(r) The consummation of the transactions contemplated by this
Agreement and the Basic Documents, and the fulfillment of the terms
hereof and thereof, will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, or result
in the creation of any lien, charge or encumbrance upon any of the
property or assets of the Company or AHFC pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or similar agreement or instrument under which the
Company or AHFC is a debtor or guarantor.
(s) The Company is not and, after giving effect to the
issuance of the Certificates and the offering and sale of the Notes and
the application of the proceeds thereof as described in the Prospectus,
will not be required to be registered as an "investment company" as
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(t) In connection with the offering of the Notes in the State
of Florida, the Company and AHFC hereby certify that they have complied
with all provisions of Section 517.075 of the Florida Securities and
Investor Protection Act.
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of, in the case of (i) the Class A-1
Notes, 99.87500% of the principal amount thereof; (ii) the Class A-2 Notes,
99.81923% of the principal amount thereof; (iii) the Class A-3 Notes, 99.76312%
of the principal amount thereof; and (iv) the Class A-4 Notes, 99.74796% of the
principal amount thereof, the respective principal amounts of each Class of the
Notes set forth opposite the names of the Underwriters in Schedule A hereto.
5
The Company will deliver against payment of the purchase price, the
Notes of each Class in the form of one or more permanent global securities in
definitive form (the "Global Notes") deposited with the Indenture Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Notes will be
held only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Notes shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account in New York previously designated to the Representative
by the Company at a bank acceptable to the Representative at the offices of
McKee Nelson LLP, New York, New York at 10:00 A.M., New York City time, on
December 16, 2003, or at such other time not later than seven full business days
thereafter as the Representative and the Company determine, such time being
herein referred to as the "Closing Date", against delivery to the Indenture
Trustee as custodian for DTC of the Global Notes representing all of the Notes.
The Global Notes will be made available for checking at the above office of
McKee Nelson LLP at least 24 hours prior to the Closing Date.
The Company will deliver the Certificates to the above office of McKee
Nelson LLP on the Closing Date. The certificate for the Certificates so to be
delivered will be in definitive form, in authorized denominations and registered
in the name of the Company and will be made available for checking at the above
office of McKee Nelson LLP at least 24 hours prior to the Closing Date.
Pursuant to Rule 15c6-1(d) under the Exchange Act, the parties hereto
have agreed that the Closing Date will be not later than December 16, 2003,
unless otherwise agreed to as described above.
4. Offering by Underwriters. It is understood that, the several
Underwriters propose to offer the Notes for sale to the public as set forth in
the Prospectus, and each Underwriter represents, warrants and covenants,
severally and not jointly, to the Company and AHFC that: (i) it has not offered
or sold and, prior to the expiry of the period of six months from the Closing
Date, will not offer or sell any Notes to persons in the United Kingdom except
to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or who it is reasonable to expect will acquire, hold, manage or
dispose of investments (as principal or agent) for the purposes of their
businesses, or otherwise in circumstances that have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995, as amended, (ii) it has complied
and will comply with all applicable provisions of the Financial Services and
Markets Act 2000 with respect to anything done by it in relation to the Notes
in, from or otherwise involving the United Kingdom, (iii) it is a person of a
kind described in Articles 19 or 49 of the Financial Services and Markets Act
2000 (Financial Promotion) Order 2001, as amended (the "Financial Promotion
Order") and (iv) it has only communicated or caused to be communicated, and will
only communicate or cause to be communicated, in the United Kingdom any document
received by it in connection with the issue of the Notes to a person who is of a
kind described in Articles 19 or 49 of the Financial Promotion Order or who is a
person to whom such document may otherwise lawfully be communicated.
6
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters:
(a) The Company will file the Prospectus, properly completed,
with the Commission pursuant to and in accordance with subparagraph (2)
(or, if applicable and if consented to by the Representative,
subparagraph (5)) of Rule 424(b) no later than the second business day
following the date it is first used. The Company will advise the
Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Representative promptly, in
writing, of any proposal to amend or supplement the Registration
Statement or the Prospectus and will not effect such amendment or
supplementation without the Representative's reasonable consent; and
the Company will also advise the Representative promptly of any
amendment or supplementation of the Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify the Representative of such event and
will promptly prepare and file with the Commission (subject to the
Representative's prior review pursuant to Section 5(b)), at its own
expense, an amendment or supplement which will correct such statement
or omission, or an amendment which will effect such compliance. Neither
the Representative's consent to, nor the Underwriters delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) The Company will cause the Trust to make generally
available to Noteholders, as soon as practicable, but no later than
sixteen months after the date hereof, an earnings statement of the
Trust covering a period of at least twelve consecutive months beginning
after the later of (i) the effective date of the registration statement
relating to the Notes and (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and, in each case,
satisfying the provisions of Section 11(a) of the Act (including Rule
158 promulgated thereunder).
(e) The Company will furnish to the Underwriters copies of the
Prospectus, the Registration Statement and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Representative reasonably requests. The
Prospectus shall be furnished on or prior to 3:00 P.M., New
7
York time, on the business day following the execution and delivery of
this Agreement. All other such documents shall be so furnished as soon
as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Notes for offering and sale and the determination of their eligibility
for investment under the laws of such jurisdictions as the
Representative may reasonably designate and will continue such
qualifications in effect so long as required for the distribution of
the Notes; provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation to do business or to
file a general consent to service of process in any such jurisdiction.
(g) For a period from the date of this Agreement until the
retirement of the Notes (i) the Company will furnish to the
Representative and, upon request, to each of the other Underwriters,
copies of each certificate and the annual statements of compliance
delivered to the Indenture Trustee pursuant to Section 3.09 of the
Indenture and Sections 3.10 and 3.11 of the Sale and Servicing
Agreement and the annual independent certified public accountant's
servicing reports furnished to the Indenture Trustee pursuant to
Section 3.12 of the Sale and Servicing Agreement, by first-class mail
as soon as practicable after such statements and reports are furnished
to the Indenture Trustee, and (ii) such other forms of periodic
certificates or reports as may be delivered to the Indenture Trustee,
the Owner Trustee or the Noteholders under the Indenture, the Sale and
Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Company will
furnish to the Representative by first-class mail as soon as
practicable, (i) all documents distributed, or caused to be
distributed, by the Company to the Noteholders, (ii) all documents
filed or caused to be filed by the Company with the Commission pursuant
to the Exchange Act or any order of the Commission thereunder and (iii)
such other information in the possession of the Company concerning the
Trust as the Representative from time to time may reasonably request.
(i) Subject to the provisions of Section 9 hereof, the Company
will pay all expenses incident to the performance of its obligations
under this Agreement and will reimburse the Underwriters (if and to the
extent incurred by them) for any filing fees and other expenses
(including fees and disbursements of counsel) incurred by them in
connection with qualification of the Notes for sale in jurisdictions
that the Representative may designate pursuant to Section 5(f) hereof
and determination of their eligibility for investment under the laws of
such jurisdictions as the Representative reasonably designates and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Notes, for any travel
expenses of the officers and employees of the Underwriters and any
other expenses of the Underwriters in connection with attending or
hosting meetings with prospective purchasers of the Notes and for
expenses incurred in distributing the Term Sheets and the Prospectus
(including any amendments and supplements thereto).
8
(j) To the extent, if any, that the rating provided with
respect to the Notes by Moody's Investors Service, Inc. ("Moody's"),
Standard & Poor's, a division of The McGraw-Hill Companies, Inc.
("Standard & Poor's"), and Fitch Ratings ("Fitch" and, together with
Standard & Poor's and Moody's, the "Rating Agencies") is conditional
upon the furnishing of documents or the taking of any other action by
the Company, the Company shall furnish such documents and take any such
other action.
(k) On or before the Closing Date, the Company and AHFC shall
annotate and indicate unambiguously in the computer records of the
Company and AHFC relating to the Receivables to show the Trust's
absolute ownership of the Receivables, and from and after the Closing
Date neither the Company nor AHFC shall take any action inconsistent
with the Trust's ownership of such Receivables, other than as permitted
by the Sale and Servicing Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Notes on the Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Company and AHFC herein on the Closing Date, to the accuracy of
the statements of Company and AHFC officers made pursuant to the provisions
hereof, to the performance by the Company and AHFC of their respective
obligations hereunder and to the following additional conditions precedent:
(a) The Representative shall have received a letter, dated the
date hereof or the Closing Date, of KPMG LLP, in form and substance
satisfactory to the Representative and counsel for the Underwriters,
confirming that they are independent public accountants within the
meaning of the Act and the applicable Rules and Regulations and stating
in effect that (i) they have performed certain specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Trust, AHFC and the Company) set
forth in the Registration Statement, the Term Sheet and the Prospectus
(and any supplements thereto), agrees with the accounting records of
the Trust, AHFC and the Company, excluding any questions of legal
interpretation, and (ii) they have performed certain specified
procedures with respect to the Receivables.
(b) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representative, shall be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in or affecting
particularly the business, properties, condition (financial or
otherwise) or results of operations of the Company or AHFC which, in
the judgment of a majority in interest of the Underwriters (including
the Representative), materially impairs the investment quality of each
Class of the Notes or makes it
9
impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for each Class of the Notes;
(ii) any suspension or limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange; (iii) any banking moratorium declared by
Federal, California or New York authorities; or (iv) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters (including the Representative), the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for each
Class of the Notes.
(d) The Representative shall have received an opinion of
Sheppard, Mullin, Richter & Hampton LLP, special California counsel to
the Company and AHFC, dated the Closing Date and satisfactory in form
and substance to the Representative and in form and scope to counsel
for the Underwriters, to the effect that:
(i) each Basic Document to which AHFC or the Company is a
party has been duly authorized by all necessary corporate action on
the part of AHFC or the Company, as applicable, and has been duly
executed and delivered by each of AHFC and the Company;
(ii) each of the direction by the Company to the Indenture
Trustee to authenticate the Notes, as set forth in a letter to be
dated as of the Closing Date, and the direction by the Company to
the Owner Trustee to execute the Notes, as set forth in a letter to
be dated as of the Closing Date, has been duly authorized by all
necessary corporate action on the part of the Company;
(iii) the direction by the Company to the Owner Trustee to
authenticate and deliver the Certificates, as set forth in a letter
to be dated as of the Closing Date, has been duly authorized by all
necessary corporate action on the part of the Company;
(iv) AHFC has the corporate authority to execute, deliver and
perform its obligations under the Receivables Purchase Agreement;
(v) the Company has the corporate authority to execute,
deliver and perform its obligations under the Sale and Servicing
Agreement;
(vi) each of AHFC and the Company has the corporate authority
to conduct its business as described in the Prospectus; and
(vii) assuming that AHFC's standard procedures as set forth in
an officer's certificate dated the Closing Date and executed by
AHFC stating that
10
AHFC follows the procedures set forth therein in order to obtain a
perfected first priority security interest in Financed Vehicles in
the ordinary course of AHFC's business (and relying solely on such
officer's certificate with respect to such facts) are followed with
respect to the perfection of security interests in the Financed
Vehicles (and such counsel has no reason to believe that AHFC has
not or will not continue to follow its standard procedures in
connection with the perfection of security interests in the
Financed Vehicles), AHFC has acquired or will acquire a perfected
first priority security interest in the Financed Vehicles.
(e) The Representative shall have received an opinion of McKee
Nelson LLP, special counsel to the Company and AHFC, dated the Closing
Date and satisfactory in form and substance to the Representative and
in form and scope to counsel for the Underwriters, to the effect that:
(i) each of the Company and AHFC is validly existing and in
good standing under the laws of the State of California;
(ii) when the Notes have been validly executed, authenticated
and delivered in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters pursuant to this
Agreement, the Notes will constitute valid and binding obligations
of the Trust enforceable in accordance with their terms and
entitled to the benefits of the Indenture, except that
enforceability thereof may be subject to (a) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity regardless of
whether such enforceability is considered in a proceeding at law or
in equity;
(iii) the execution, delivery and performance by each of the
Company and AHFC of the Basic Documents to which it is a party will
not violate or result in a material breach of any of the terms of
or constitute a material default under or (except as contemplated
in the Basic Documents) result in the creation of any lien, charge
or encumbrance on any property or assets of the Company or AHFC,
pursuant to the terms of any indenture, mortgage, deed of trust or
other agreement described in an Officer's Certificate or
Certificates and schedules attached to such opinion (collectively,
the "Material Agreements"). As those Material Agreements which by
their terms are or may be governed by the laws of a jurisdiction
other than New York, such counsel may assume that such Material
Agreements are governed by the laws of the State of New York for
purposes of such opinion. In addition, and in reliance upon a
certificate of AHFC's Chief Financial Officer or other accounting
officer as to compliance with financial covenants, such counsel may
exclude from the scope of such opinion any potential violation of
financial covenants contained in such Material Agreements.
(iv) no consent, approval, authorization or order of, or
filing with any New York or federal governmental entity is required
for the execution and
11
delivery by each of the Company or AHFC of the Basic Documents to
which it is a party or the performance by each of the Company or
AHFC of the transactions contemplated thereby where the failure to
make or obtain such consent or approval of, notice to, filing with,
or other action by, or take such action would reasonably be
expected to have a material adverse effect on the ability of such
entity to perform its obligations under the Basic Documents, except
for (i) the filing of UCC financing statements, (ii) filings and
other actions required pursuant to state securities or blue sky
laws, as to which such counsel shall express no opinion, and (iii)
those that have already been obtained, made or taken;
(v) the execution and delivery by each of the Company and AHFC
of the Basic Documents to which it is a party, the consummation of
the transactions contemplated thereby and compliance with any of
the provisions thereof by each of AHFC and the Company will not
violate (i) any of the terms, conditions or provisions of the
certificate of incorporation or bylaws of AHFC or the Company, each
as amended, (ii) any federal or State of New York statute, rule or
regulation applicable to AHFC or the Company (other than federal
and state securities or blue sky laws, as to which such counsel
shall express no opinion) or (iii) any judgment, written
injunction, decree, order or ruling of any court or governmental
authority binding on AHFC or the Company of which such counsel has
knowledge;
(vi) such counsel has no reason to believe that the
Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing
Date, contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(vii) the Registration Statement and the Prospectus complies
in all material respects with the requirements of the Act and the
rules and regulations promulgated thereunder; and such counsel does
not know of any contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such
counsel need express no opinion as to the financial statements or
other financial, numerical, statistical and quantitative
information contained in the Registration Statement or the
Prospectus;
(viii) the statements in the Prospectus under the heading
"Certain Legal Aspects of the Receivables," "Summary - ERISA
Considerations" and "ERISA Considerations," to the extent that they
constitute matters of federal or State of New York law, or federal
or State of
12
New York legal conclusions provide a fair and accurate summary
of such law or conclusions; and
(ix) assuming that the Receivables are in substantially one of
the forms attached to such opinion, the Receivables constitute
tangible "chattel paper" within the meaning of the California UCC.
(f) The Representative shall have received an opinion of McKee
Nelson LLP, special counsel to the Company and AHFC, dated the Closing
Date and satisfactory in form and substance to the Representative and
in form and scope to counsel for the Underwriters, to the effect that:
(i) the Receivables Purchase Agreement creates a valid
security interest in favor of the Company in AHFC's right, title
and interest in and to the Receivables transferred to the Company
pursuant to the Receivables Purchase Agreement;
(ii) the Sale and Servicing Agreement creates a valid security
interest in favor of the Trust in the Company's right, title and
interest in and to the Receivables transferred to the Trust
pursuant to the Sale and Servicing Agreement;
(iii) the Indenture creates a valid security interest in favor
of the Indenture Trustee in the Trust's right, title and interest
in and to the Receivables pledged to the Indenture Trustee pursuant
to the Indenture;
(iv) the filing of the financing statements of Form UCC-1
naming (a) AHFC as debtor in favor of the Company, (b) the Company
as debtor in favor of the Trust, and (c) the Trust as debtor in
favor of the Indenture, in the respective offices, will be
effective to perfect the security interests described in paragraphs
(i), (ii) and (iii) above, and each such security interest will be
prior to any security interest in the Receivables of any other
creditor of AHFC, the Company or the Trust, respectively;
(v) the Trust Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act");
(vi) the Indenture has been duly qualified under the Trust
Indenture Act;
(vii) the Registration Statement is effective under the Act
and, to the best of such counsel's knowledge and information, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings therefor
have been initiated or threatened by the Commission;
13
(viii) each Basic Document (other than the Trust Agreement) to
which it is a party is, when executed and delivered, a valid and
binding obligation of each of the Company and AHFC, enforceable
against each such party in accordance with its terms, except as
enforceability thereof may be limited by (x) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally, (y) general principles of equity regardless of whether
such enforceability is considered in a proceeding at law or in
equity and (z) with respect to rights or indemnity thereunder,
limitations of public policy under applicable securities laws;
(ix) assuming due authorization, execution and delivery by the
Indenture Trustee and the Owner Trustee, not in its individual
capacity but solely as Owner Trustee on behalf of the Trust, the
Indenture constitutes the legal, valid and binding agreement of the
Trust, enforceable against the Trust in accordance with its terms
(subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting
creditors' rights generally from time to time in effect, and
subject, as to enforceability, to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law) except, as applicable, that such
counsel need not express an opinion with respect to indemnification
or contribution provisions which may be deemed to be in violation
of the public policy underlying any law or regulation; and
(x) neither the Trust nor the Company is an "investment
company" or under the "control" of an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act") and neither the Trust nor the Seller
is required to register under the Investment Company Act.
(g) The Representative shall have received an opinion of McKee
Nelson LLP, tax counsel for the Company, dated the Closing Date and
satisfactory in form and scope to the Representative and counsel for
the Underwriters, to the effect that for federal income tax purposes
(i) the Notes will be characterized as indebtedness, (ii) the Trust
will not be classified as an association (or publicly traded
partnership) taxable as a corporation and (iii) the statements set
forth in the Prospectus Supplement under the headings "Summary of
Terms--Tax Status", "Material Income Tax Consequences" and Annex A to
the Prospectus, "Global Clearance, Settlement and Tax Documentation
Procedures-Certain U.S. Federal Income Tax Documentation Requirements"
and in the Base Prospectus under the headings "Summary of Terms--Tax
Status" and "Material Income Tax Consequences," to the extent they
constitute matters of law or legal conclusions, accurately described
the material United States federal income tax consequences to
Noteholders.
(h) The Representative shall have received an opinion of McKee
Nelson LLP, tax counsel for the Company, dated the Closing Date and
satisfactory in form and
14
scope to the Representative and counsel for the Underwriters, to the
effect that for California state franchise and California state income
tax purposes the Trust will not be classified as an association (or
publicly traded partnership) taxable as a corporation.
(i) The Representative shall have received from O'Melveny &
Myers LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the validity of the Notes, the
Registration Statement, the Prospectus and other related matters as the
Representative may require, and the Company shall have furnished to
such counsel such documents as it may request for the purpose of
enabling it to pass upon such matters.
(j) The Representative shall have received a certificate,
dated the Closing Date, of the Chairman of the Board, the President or
any Vice-President and a principal financial or accounting officer of
each of the Company and AHFC in which such officers, to the best of
their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company and AHFC in this
Agreement are true and correct in all material respects; the Company or
AHFC, as applicable, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date in all material respects; the representations
and warranties of the Company or AHFC, as applicable, in the Basic
Documents are true and correct as of the dates specified in such
agreements in all material respects; the Company or AHFC, as
applicable, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date; no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission; and, subsequent to the date of the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or otherwise), business, properties or results of operations
of the Company or AHFC or their respective businesses except as set
forth in or contemplated by the Prospectus or as described in such
certificate.
(k) The Representative shall have received an opinion of
Emmet, Marvin & Martin LLP, counsel to the Indenture Trustee, dated the
Closing Date and satisfactory in form and substance to the
Representative and in form and scope to counsel for the Underwriters,
substantially to the effect that:
(i) the Indenture Trustee is a banking corporation validly
existing under the laws of the State of New York;
(ii) the Indenture Trustee has the requisite power and
authority to execute and deliver the Indenture, the Sale and
Servicing Agreement, the Control Agreement and the Administration
Agreement and perform its obligations under each of the Agreements,
and has taken all necessary action to authorize the execution and
delivery of the Indenture, the Sale and Servicing Agreement, the
15
Control Agreement and the Administration Agreement and performance
by it of each of the Agreements;
(iii) no approval, authorization or other action by or filing
with any governmental authority of the United States of America, or
of the State of New York, having jurisdiction over the banking or
trust powers of the Indenture Trustee is required in connection
with the execution and delivery by the Indenture Trustee of the
Indenture, the Sale and Servicing Agreement, the Control Agreement
and the Administration Agreement;
(iv) the execution and delivery of the Indenture, the Sale and
Servicing Agreement, the Control Agreement and the Administration
Agreement and the performance by the Indenture Trustee of the
respective terms of the Agreements, do not conflict with or result
in a violation of the Articles of Incorporation or By-Laws of the
Indenture Trustee or the applicable federal laws of the United
States of America or of the State of New York having jurisdiction
over the banking or trust powers of the Indenture Trustee;
(v) each of the Indenture, the Sale and Servicing Agreement,
the Control Agreement and the Administration Agreement has been
duly executed and delivered by the Indenture Trustee and each of
the Agreements constitutes a legal, valid and binding obligation of
the Indenture Trustee, enforceable against the Indenture Trustee in
accordance with its respective terms, except that certain of such
obligations may be enforceable solely against the Trust Estate and
except that such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation, or other
similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(vi) the Notes delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms
of the Indenture.
(l) The Representative shall have received an opinion of
Richards, Layton & Finger, P.A., counsel to the Owner Trustee, dated
the Closing Date and satisfactory in form and substance to the
Representative and in form and scope to counsel for the Underwriters,
to the effect that:
(i) the Owner Trustee is duly formed and validly existing as a
banking corporation in good standing under the laws of the State of
Delaware;
16
(ii) the Owner Trustee has the power and authority to execute,
deliver and perform its obligations under the Trust Agreement and
to consummate the transactions contemplated thereby;
(iii) the Owner Trustee has duly authorized, executed and
delivered the Trust Agreement, and the Trust Agreement constitutes
a legal, valid and binding obligation of the Owner Trustee,
enforceable against the Owner Trustee in accordance with its terms
(subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting
creditors' rights generally from time to time in effect, and
subject, as to enforceability, to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) neither the execution, delivery and performance by the
Owner Trustee of the Trust Agreement, nor the consummation of the
transactions contemplated thereby, is in violation of the
certificate of incorporation or bylaws of the Owner Trustee or of
any law, governmental rule or regulation of the State of Delaware
or of the United States of America governing the trust powers of
the Owner Trustee; and
(v) no consent, approval or other authorization of, or
registration, declaration or filing with, any court or governmental
agency or commission of the State of Delaware or of the United
States of America governing the trust powers of the Owner Trustee
is required by or with respect to the Owner Trustee for the valid
execution and delivery of the Trust Agreement, or for the validity
or enforceability thereof, other than the filing of the Certificate
of Trust with the Delaware Secretary of State, which has been duly
filed.
(m) [Reserved]
(n) The Representative shall have received one or more
opinions of Richards, Layton & Finger, P.A., special Delaware counsel
to the Trust, dated the Closing Date and satisfactory in form and scope
to the Representative and counsel for the Underwriters, to the effect
that:
(i) the Trust has been duly formed and is validly existing and
in good standing as a statutory trust under the Delaware Statutory
Trust Statute, 12 Del. C. (section) 3801, et seq. (the "Delaware
Act");
(ii) the Trust has the power and authority under the Delaware
Act and the Trust Agreement to execute and deliver the Basic
Documents to which the Trust is a party, to issue the Notes and the
Certificates, to grant the Collateral (as such term is defined in
the Indenture) to the Indenture Trustee as security for the Notes
and to perform its obligations under each of said documents;
17
(iii) the Trust has duly authorized and executed the
Certificates and the Notes, the Owner Trustee has duly
authenticated the Certificates on behalf of the Trust, and when the
Certificates are delivered upon the order of the Depositor in
accordance with the Trust Agreement, the Certificates will be
validly issued and entitled to the benefits of the Trust Agreement;
(iv) to the extent that Article 9 of the Uniform Commercial
Code as in effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflicts of laws principles), and
assuming that the security interest created by the Indenture in the
Collateral has been duly created and has attached, upon the filing
of the financing statements set forth in such opinion (the
"Delaware Financing Statements") with the Office of the Secretary
of State (Uniform Commercial Code Division) (the "Division"), the
Indenture Trustee will have a perfected security interest in the
Trust's rights in that portion of the Collateral described in the
Delaware Financing Statements that may be perfected by the filing
of a UCC financing statement with the Division (the "Filing
Collateral") and the proceeds thereof (as defined in Section
9-102(a)(64) of the Delaware UCC);
(v) the search report referenced in such opinion will set
forth the proper filing office and the proper debtor necessary to
identify those persons who under the Delaware UCC have on file
financing statements against the Trust covering the Filing
Collateral as of the Closing Date. Such search report identifies no
secured party who has filed with the Division a financing statement
naming the Trust as debtor, and describing the Filing Collateral
prior to the Closing Date;
(vi) no refiling or other action is necessary under the
Delaware UCC in order to maintain the perfection of such security
interest except for the filing of continuation statements at five
year intervals;
(vii) assuming for federal income tax purposes that the Trust
will not be classified as an association or a publicly traded
partnership taxable as a corporation, and that the Notes will be
characterized as indebtedness for federal income tax purposes, then
the Trust will not be subject to any franchise or income tax under
the laws of the State of Delaware, and the Notes will also be
characterized as indebtedness for Delaware tax purposes;
(viii) the Trust Agreement is the legal, valid and binding
obligation of the parties thereto, enforceable against such
parties, in accordance with its terms (subject to such exclusions
and exceptions as are customary in opinions of this type);
(ix) under the Delaware Act, the Trust is a separate legal
entity and, assuming that the Sale and Servicing Agreement conveys
good title to the Trust property to the Trust as a true sale and
not as a security arrangement, the Trust
18
rather than the Certificateholders will hold whatever title to the
Trust property as may be conveyed to it from time to time pursuant
to the Sale and Servicing Agreement, except to the extent that the
Trust has taken action to dispose of or otherwise transfer or
encumber any part of the Trust property;
(x) under 3805(b) of the Delaware Act, no creditor of any
Certificateholder (as defined in the Trust Agreement) shall have
any right to obtain possession of, otherwise exercise legal or
equitable remedies with respect to, the property of the Trust
except in accordance with the terms of the Trust Agreement;
(xi) under 3805(c) of the Delaware Act, except to the extent
otherwise provided in the Trust Agreement, a Certificateholder
(including the Company in its capacity as Depositor under the Trust
Agreement) has no interest in specific Receivables;
(xii) under 3808(a) and (b) of the Delaware Act, the Trust may
not be terminated or revoked by any Certificateholder, and the
dissolution, termination or bankruptcy of any Certificateholder
shall not result in the termination or dissolution of the Trust,
except to the extent otherwise provided in the Trust Agreement.
(o) The Representative shall have received an opinion of McKee
Nelson LLP, counsel to the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and in form
and scope to counsel for the Underwriters, (i) with respect to the
characterization of the transfer of the Receivables by AHFC to the
Company and (ii) to the effect that should AHFC become the debtor in a
case under Title 11 of the United States Code (the "Bankruptcy Code")
and the Company would not otherwise properly be a debtor in a case
under the Bankruptcy Code, and in a properly presented and decided
case, a federal bankruptcy court would not use its equitable discretion
to disregard the corporate forms of the Company and AHFC so as to
substantively consolidate the assets and liabilities of the Company
with the assets and liabilities of AHFC and such opinion shall be in
substantially the form previously discussed with the Representative and
counsel for the Underwriters and in any event satisfactory in form and
in substance to the Representative and in form and scope to counsel for
the Underwriters.
(p) The Representative shall have received evidence
satisfactory to it and its counsel that, on or before the Closing Date,
UCC-1 financing statements have been or are being filed in the office
of the Secretary of State of the state of (i) California reflecting the
transfer of the interest of AHFC in the Receivables and the proceeds
thereof to the Company and the transfer of the interest of the Company
in the Receivables and the proceeds thereof to the Trust and (ii)
Delaware reflecting the grant of the security interest by the Trust in
the Receivables and the proceeds thereof to the Indenture Trustee.
19
(q) The Representative shall have received an opinion of McKee
Nelson LLP, special counsel to the Company, dated the Closing Date and
satisfactory in form and substance to the Representative and in form
and scope to counsel for the Underwriters to the effect that upon
execution and delivery of the Sale and Servicing Agreement, the
Indenture and the Control Agreement, the provisions of the Indenture
and the Control Agreement will be effective to create a valid security
interest in favor of the Indenture Trustee, to secure payment of the
Notes, in the Trust's rights in all "security entitlements" (as defined
in Section 8-102(a)(17) of the UCC) with respect to "financial assets"
(as defined in Section 8-102(a)(9) of the UCC) now or hereafter
credited to each Securities Account and in all "security entitlements"
(within the meaning of the Federal Book-Entry Regulations) with respect
to Federal Book-Entry Securities now or hereafter credited to each
Securities Account (such security entitlements, collectively, the
"Security Entitlements"); the provisions of the Indenture and the
Control Agreement will be effective to perfect the security interest of
the Indenture Trustee in the Security Entitlements; and no security
interest of any other creditor of the Trust will be prior to the
security interest of the Indenture Trustee in the Security
Entitlements.
(r) Each Class of the Notes shall have been rated in the
highest rating category by each of Moody's, Fitch and Standard &
Poor's.
(s) On or prior to the Closing Date, the Certificates shall
have been issued to the Company.
(t) The Representative shall have received from McKee Nelson
LLP and each other counsel for the Company, a letter dated the Closing
Date to the effect that the Underwriters may rely upon each opinion
rendered by such counsel to either Standard & Poor's, Moody's or Fitch
in connection with the rating of any Class of the Notes, as if each
such opinion were addressed to the Underwriters.
(u) The Representative shall have received an opinion of Scott
Shea, Esq., counsel to the Company and AHFC, dated the Closing Date, to
the effect that to the best knowledge of such counsel after due
inquiry, there are no actions, proceedings or investigations to which
the Company or AHFC is a party or that are threatened before any court,
administrative agency or other tribunal having jurisdiction over AHFC
or the Company, (i) that are required to be disclosed in the
Registration Statement, (ii) asserting the invalidity of this
Agreement, any Basic Document, the Notes or the Certificates, (iii)
seeking to prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by this Agreement
or the Basic Documents, (iv) which might materially and adversely
affect the performance by the Company or AHFC of its obligations under,
or the validity or enforceability of, this Agreement, any Basic
Document, the Notes or the Certificates or (v) seeking adversely to
affect the federal income tax attributes of the Notes as described in
the Prospectus under the heading "MATERIAL INCOME TAX CONSEQUENCES."
20
(v) As of the Closing Date, the representations and warranties
of the Company and AHFC contained in the Basic Documents will be true
and correct.
The Company will furnish the Representative with such conformed copies
of such opinions, certificates, letters and documents as the Representative
reasonably requests.
The Representative may, in its sole discretion, waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Company and AHFC will, jointly and severally, indemnify
and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such underwriter may become
subject, under the Act, or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained or incorporated in the Registration Statement,
the Term Sheet, the Prospectus, or any amendment or supplement thereto
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that neither the Company nor
AHFC will be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company or AHFC by any
Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in
subsection (b) below; and provided, further that with respect to any
untrue statement or omission or alleged untrue statement or omission
made in the Term Sheet, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or
liabilities purchased the Notes concerned, to the extent that the
untrue statement or omission or alleged untrue statement or omission
was eliminated or remedied in the Prospectus, which Prospectus was
required to be delivered by such Underwriter under the Act to such
person and was not so delivered if the Company or AHFC had previously
furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company and AHFC against any losses, claims, damages
or liabilities to which the Company or AHFC may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained or incorporated in the Registration Statement, the
Prospectus, or any
21
amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representative specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by
the Company or AHFC in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in
the Prospectus furnished on behalf of each Underwriter: the concession
and reallowance figures appearing in the third paragraph under the
caption "Underwriting" and the information contained in the third
paragraph, the second sentence of the fifth paragraph, and the seventh
paragraph under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof, but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof and after acceptance by the indemnified party of such counsel,
the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party if
indemnity could have been sought hereunder by such indemnified party
unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the
22
relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Notes underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company or AHFC under this Section
shall be in addition to any liability which the Company or AHFC may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the meaning of
the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters
may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company or AHFC, to each officer of
the Company and AHFC who has signed the Registration Statement and to
each person, if any, who controls the Company or AHFC within the
meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Notes hereunder on the Closing Date and the
aggregate principal amount of Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Notes that the Underwriters are obligated to purchase on
such Closing Date, the Representative may make arrangements satisfactory to the
Company for the purchase of such Notes by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
nondefaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Notes that such defaulting
Underwriters agreed but failed to purchase on such
23
Closing Date. If any Underwriter or Underwriters so default and the aggregate
principal amount of Notes with respect to which such default or defaults occur
exceeds 10% of the total principal amount of Notes that the Underwriters are
obligated to purchase on such Closing Date and arrangements satisfactory to the
Representative and the Company for the purchase of such Notes by other persons
are not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Company,
except as provided in Section 9. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or AHFC or their respective officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or the Company or AHFC or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Notes. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the Notes
by the Underwriters is not consummated, the Company shall remain responsible for
the expenses to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company, AHFC and the Underwriters pursuant to
Section 7 shall remain in effect. If the purchase of the Notes by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (ii), (iii) or (iv) of Section 6(c), the Company and
AHFC, jointly and severally, will reimburse the Underwriters for all out-of
pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Notes.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or sent by facsimile and
confirmed to the Representative at 231 S. LaSalle Street, 16th Floor, Chicago,
Illinois 60697, Attention: Global Structured Finance, (facsimile: (312)
974-8578), or, if sent to the Company, will be mailed, delivered or sent by
facsimile transmission and confirmed to it at 700 Van Ness Avenue, Torrance,
California 90501, Attention: John I. Weisickle, (facsimile: (310) 787-3910), and
if to AHFC, will be mailed, delivered or sent by facsimile transmission and
confirmed to it at 700 Van Ness Avenue, Torrance, California 90501, Attention:
John I. Weisickle, (facsimile: (310) 787-3910); provided that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telecopied and
confirmed to such Underwriter.
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to the
date which is one year and one day after the payment in full of all securities
issued by the Company or by a trust for which the Company was the depositor
which securities were rated by any nationally recognized statistical rating
organization, it will not institute against, or join any other person in
instituting against, the Company any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any Federal or
state bankruptcy or similar law.
24
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 9, and no other
person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law; Submission to Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) Each of the Company and AHFC hereby submits to the nonexclusive
jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated
hereby.
[Remainder of Page Intentionally Left Blank]
25
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to each of the Company
and AHFC one of the counterparts hereof, whereupon it will become a binding
agreement between the Company, AHFC and the several Underwriters in accordance
with its terms.
Very truly yours,
AMERICAN HONDA
RECEIVABLES CORP.
BY:/s/ Y. Takahashi
------------------------
NAME: Y. Takahashi
TITLE: President
AMERICAN HONDA
FINANCE CORPORATION
BY:/s/ Y. Takahashi
------------------------
NAME: Y. Takahashi
TITLE: President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
Banc of America Securities LLC, acting on behalf of itself
and as the Representative of the several Underwriters
BY:/s/ Alan Johannsen
-----------------------------
NAME: Alan Johannsen
TITLE: Vice President
S-1
Amount of Amount of
Amount of Class Class A-2 Amount of Class A-4
Underwriter A-1 Notes Notes Class A-3 Notes Notes
- --------------------------------------------- ------------------ --------------- ----------------- ---------------
Banc of America Securities LLC $93,600,000 $100,000,000 $122,000,000 $90,341,200
Barclay's Capital Inc. $93,600,000 $100,000,000 $122,000,000 $90,341,200
ABN AMRO Incorporated $15,600,000 $16,666,667 $20,333,333 $15,056,867
Deutsche Bank Securities Inc. $15,600,000 $16,666,667 $20,333,333 $15,056,867
Banc One Capital Markets, Inc. $15,600,000 $16,666,667 $20,333,333 $15,056,867
Total: $234,000,000 $250,000,000 $305,000,000 $225,853,000
A-1