HONDA AUTO RECEIVABLES 2009-2
OWNER TRUST
$351,000,000 1.31785% ASSET
BACKED NOTES, CLASS A-1
$400,000,000 2.22% ASSET BACKED NOTES, CLASS A-2
$520,000,000 2.79% ASSET BACKED NOTES, CLASS A-3
$229,000,000 4.43% ASSET BACKED NOTES, CLASS A-4
AMERICAN HONDA RECEIVABLES
CORP.
J.P. Morgan
Securities Inc.
As Representative of the Several
Underwriters
270 Park Avenue, 10 th Floor
New York, New York 10017
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 2009-2 Owner Trust (the “Trust”)
to issue and sell $351,000,000 aggregate principal amount of
1.31785% Asset Backed Notes, Class A-1 (the
“Class A-1 Notes”) , $400,000,000 aggregate
principal amount of 2.22% Asset Backed Notes, Class A-2 (the
“Class A-2 Notes”), $520,000,000 aggregate
principal amount of 2.79% Asset Backed Notes, Class A-3 (the
“Class A-3 Notes) and $229,000,000 aggregate principal
amount of 4.43% 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, the “Notes”). The Notes will be issued
pursuant to the Indenture, to be dated as of May 1, 2009 (the
“Indenture”), between the Trust and Deutsche Bank Trust
Company Americas (the “Indenture Trustee”).
Certain of the
Underwriters (as defined herein) are financial institutions
appearing on the Federal Reserve Bank of New York’s list of
Primary Government Securities Dealers Reporting to the Government
Securities Dealers Statistics Unit of the Federal Reserve Bank of
New York (a “Primary Dealer”), and may be a party to
that certain Master Loan and Security Agreement among the Federal
Reserve Bank of New York (the “FRBNY”), as Lender,
various Primary Dealers party thereto, the Bank of New York Mellon,
as Administrator, and the Bank of New York Mellon, as Custodian
(the “MLSA”), in connection with the Term Asset-Backed
Securities Loan Facility (the “TALF”). It is expressly
intended by the parties hereto that all rights, benefits and
remedies of the Underwriters under this Agreement shall be for the
benefit of, and shall be enforceable by, each Underwriter that is
also a Primary Dealer not only in its capacity as an Underwriter
but also in its capacity as a Primary Dealer and as a signatory to
the MLSA.
Concurrently with
the issuance and sale of the Notes as contemplated herein, the
Trust will issue $66,582,876.59 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 May 12, 2009 (the “Trust
Agreement”), among the Company, Citibank, N.A., as owner
trustee (in such capacity, the “Owner Trustee”) and
Citigroup Trust-Delaware, National Association, as Delaware trustee
(in such capacity, the “Delaware 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”)
and certain monies due thereunder on or after May 1, 2009 (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 May 1, 2009
(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 May 1, 2009 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.
At or prior to the
time when sales to investors of the Notes were first made to
investors by the several Underwriters named in Schedule A
hereto (collectively, the “Underwriters”) for which
J.P. Morgan Securities Inc. is acting as representative (in such
capacity, the “Representative”), which was
approximately 12:00 p.m. on May 5, 2009 (the “Time
of Sale”), the Company had prepared the following information
(collectively, the “Time of Sale Information”): the
preliminary prospectus supplement dated April 29, 2009, as
amended and supplemented by a supplement to such preliminary
prospectus supplement dated May 4, 2009, relating to the Notes
and containing all information to be included in the Final
Prospectus (as defined below) other than pricing related
information and accompanied by the base prospectus dated
June 18, 2008 (together, along with information referred to
under the caption “Static Pools” therein regardless of
whether it is deemed a part of the Registration Statement or Final
Prospectus, the “Preliminary Prospectus”). If,
subsequent to the Time of Sale and prior to the Closing Date (as
defined below), the Company wishes to convey additional or changed
information in order to make the Time of Sale Information, in light
of the circumstances under which statements in the Time of Sale
Information were made, not misleading, and as a result investors in
the Notes elect to terminate their old “Contracts of
Sale” (within the meaning of Rule 159 under the
Securities Act of 1933, as amended (the “Act”)) for any
Notes and enter into new Contracts of Sale with the Underwriters,
then “Time of Sale Information” will refer to the
information conveyed to investors at the time of entry into the
first such new Contract of Sale, in an amended Preliminary
Prospectus approved by the Company and the Representative that
corrects such material misstatements or omissions (a
“Corrected Prospectus”) and “Time of Sale”
will refer to the time and date on which such new Contracts of Sale
were entered into.
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The
Company hereby agrees with the several 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. 333-150095),
including a prospectus, relating to the Notes has been filed with
the Securities and Exchange Commission (the
“Commission”) and has become effective and is still
effective as of the date hereof. A Preliminary Prospectus was filed
with the Commission pursuant to Rule 424(b) of the Act and the
rules and regulations thereunder (the “Rules and
Regulations”). A final prospectus supplement dated the date
hereof, containing the same information as the Preliminary
Prospectus, but including the pricing related information and
accompanied by the base prospectus dated June 18, 2008
(together, along with information referred to under the caption
“Static Pools” therein regardless of whether it is
deemed a part of the Registration Statement or Final Prospectus,
the “Final Prospectus”, and together with the
Preliminary Prospectus and any Corrected Prospectus, the
“Prospectus”) will be filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations
(“Rule 424(b)”) within the time period required
thereby. Such registration statement, as amended as of its
effective date (including without limitation each deemed effective
date with respect to the Company and the Underwriters pursuant to
Rule 430B(f)(2) of the Rules and Regulations) is hereinafter
referred to as the “Registration Statement.” Except as
described in Section 5A(b), no “issuer free writing
prospectus” as defined in Rule 433 of the Rules and
Regulations relating to the Notes has been or will be used by or on
behalf of the Company.
(b)
On the effective date of the Registration Statement (including
without limitation each deemed effective date with respect to the
Company and the Underwriters pursuant to Rule 430B(f)(2) of the
Rules and Regulations) relating to the Notes, such Registration
Statement conformed and on the Closing Date will conform in all
respects to the requirements of the Act and 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 as of each such date, such Registration Statement conforms in
all respects to the requirements contained in the Act and the Rules
and Regulations. With regard to the Preliminary Prospectus, as of
the date of the Preliminary Prospectus and as of the Time of Sale,
and with regard to the Final Prospectus, as of the date of the
Final Prospectus and as of the Closing Date, each Prospectus will
conform in all respects to the requirements of the Act and the
Rules and Regulations, and none of such documents includes or will
include any untrue statement of a material fact or omits or will
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The two preceding sentences do not apply
with respect to any statements or omissions made in reliance upon
and in conformity with the Underwriter Information (as defined
herein).
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(c)
The Time of Sale Information, at the Time of Sale, did not, and at
the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity
with the Underwriter Information (as defined herein).
(d)
(i) The Notes are “asset backed securities” within
the meaning of, and satisfy the requirements for use of, Form S-3
under the Act, (ii) the Notes shall, on the Closing Date,
constitute eligible collateral under TALF, (iii) the Notes and
Receivables shall, on the Closing Date, satisfy all applicable
criteria for securities relating to “prime retail auto
loans” under TALF and (iv) the Trust and AHFC have
satisfied, or by the Closing Date shall have satisfied, all
requirements under TALF applicable to it with respect to the Notes
and related matters required to be satisfied as of such date. The
Preliminary Prospectus contains, and the Final Prospectus will
contain, all applicable information required to be included therein
under TALF in order for the Notes to be eligible
collateral.
(e)
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 to the requirements of the Act or the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), as
applicable, and the rules and regulations thereunder; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the Rules and
Regulations.
(f)
The Company is not, and on the date on which the first bona fide
offer of the Notes is made, will not be an “ineligible
issuer” as defined in Rule 405. The Company has caused
to be filed with the Commission on April 30, 2009 the
Preliminary Prospectus.
(g)
Each of the Company and AHFC has been duly incorporated and is a
validly existing corporation in good standing under the laws of the
State of California, with full 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.
(h)
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
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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).
(i)
Neither the Company nor AHFC is (i) in breach or violation of
its Articles of Incorporation or By-laws, (ii) 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, or
(iii) in violation of any applicable law, statute, regulation
or ordinance or any governmental body having jurisdiction over it,
in each case, that 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 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.
(j)
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.
(k)
Except as disclosed in each 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
5
issuance of the
Certificates; and no such actions, suits or proceedings are
threatened or, to the Company’s or AHFC’s knowledge,
contemplated.
(l)
As of the Closing Date, the representations and warranties of the
Company and AHFC contained both (i) in the Basic Documents and
(ii) in the Certification as to TALF Eligibility attached as
Annex B to the Final Prospectus (the “TALF
Certification”) will be true and correct.
(m)
This Agreement has been duly authorized, executed and delivered by
each of the Company and AHFC.
(n)
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.
(o)
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.
(p)
The Trust’s assignment of the Receivables to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture
Trustee, for the benefit of the Noteholders, a first priority
perfected security interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(q)
The computer tape of the Receivables created as of May 1,
2009, 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.
(r)
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.
(s)
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.
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(t)
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”).
(u)
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.
(v)
Except for the Underwriters, neither the Company nor AHFC has
employed or retained a broker, finder, commission agent or other
person in connection with the sale of the Notes, and neither the
Company nor AHFC is under any obligation to pay any broker’s
fee or commission in connection with such sale.
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, 99.88000% of the principal amount thereof, (ii) the
Class A-2 Notes, 99.75551% of the principal amount thereof,
(iii) the Class A-3 Notes, 99.69672% of the principal
amount thereof and (iv) the Class A-4 Notes, 99.62211% of
the principal amount thereof, the respective principal amounts of
each Class of the Notes set forth opposite the names of the
Underwriters in Schedule A hereto.
The
Company will deliver against payment of the purchase price, the
Notes of each Class in the form of one or more permanent global
securities in definitive form (the “Global Notes”)
deposited with the Indenture Trustee as custodian for The
Depository Trust Company (“DTC”) and registered in the
name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Notes will be held only in book-entry form through
DTC, except in the limited circumstances described in the
Prospectus. Payment for the Notes shall be made by the Underwriters
in Federal (same day) funds by official check or checks or wire
transfer to an account 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 May 12, 2009 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.
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Pursuant
to Rule 15c6-1(d) under the Exchange Act, the parties hereto
have agreed that the Closing Date will be not later than
May 12, 2009, 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.
5A.
Certain Agreements of the Company . The Company agrees with
the several Underwriters:
(a)
The Company will file the Final 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 shall file the final pricing information, which may be
posted on a Bloomberg screen or distributed via Bloomberg, as a
free writing prospectus.
(c)
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.
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(d)
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 5A(c), 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.
(e)
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).
(f)
The Company will furnish to the Underwriters copies of each
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 Final Prospectus shall be furnished on or prior to 3:00 P.M.,
New York time, on the business day following the execution and
delivery of this Agreement. All other such documents shall be so
furnished as soon as available. The Company will pay the expenses
of printing and distributing to the Underwriters all such
documents.
(g)
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.
(h)
For a period from the date of this Agreement until the retirement
of the Notes, the Company will furnish to the Representative and,
upon request, to each of the other Underwriters, (i) 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
9
public
accountant’s servicing reports furnished to the Trust
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 or the Trust, as
the case may be, 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.
(i)
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.
(j)
Subject to the provisions of Section 10 hereof, the Company
will pay (A) all costs and expenses of Underwriters’
counsel in excess of $45,000 and (B) 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 5A(g) 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 Prospectus
(including any amendments and supplements thereto).
(k)
To the extent, if any, that the rating provided with respect to the
Notes by Fitch Ratings (“Fitch”) or Standard &
Poor’s Ratings Services, a division of the McGraw-Hill
Companies, Inc. (“S&P”) 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.
(l)
On or before the Closing Date, the Company shall annotate and
indicate unambiguously in the computer records of the Company
relating to the Receivables to show the Trust’s absolute
ownership of the Receivables, and from and after the Closing Date
the Company shall not take any action inconsistent with the
Trust’s ownership of such Receivables, other than as
permitted by the Sale and Servicing Agreement.
(m)
In the event that Company shall determine that any statement set
forth in Item (2) of Annex B to the Final Prospectus either was
incorrect when made or has
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ceased to be
correct, (i) immediately notify each Underwriter of such
determination, (ii) notify the FRBNY and all registered
holders of the Notes in writing of such determination no later than
9:00 a.m. New York City time on the fourth Business Day following
such determination, and (iii) issue a press release regarding
such determination no later than 9:00 a.m. New York City time on
the fourth Business Day following such determination; provided,
that the Company will provide same Business Day notice of any
change in credit ratings issued by any major nationally recognized
statistical rating organization (including any change in the final
rating compared to a preliminary rating) that occurs after pricing
of the Notes and on or prior to the Closing Date.
5B.
Certain Agreements of the Underwriters . Each of the several
Underwriters, for itself only, represents, warrants and agrees with
the Company as follows:
Other than the
Preliminary Prospectus and the Final Prospectus, each Underwriter
has not conveyed and will not convey, without the Company’s
prior written approval, to any potential investor in the Notes any
other written material of any kind relating to any “issuer
information” as defined in Rule 433(h)(2) of the Act, or
the Notes that would constitute a “prospectus” or a
“free writing prospectus,” each as defined in the Act
(“Prohibited Materials”), including, but not limited to
the materials constituting a “road show” presentation
to Potential Investors (other than use of such materials as part of
the road show itself) and any “ABS informational and
computational materials” within the meaning of Item 1101(a)
of Regulation AB promulgated by the Commission under the Act
and the Securities Exchange Act of 1934, as amended; provided,
however, that you may convey to one or more of your Potential
Investors (the following, collectively, “Permitted
Information”): (i) information permitted in
Rule 134 under the Act or previously included in the
Preliminary Prospectus, and (ii) a free writing prospectus, as
defined in Rule 405 under the Act, containing only:
(a) syndicate structure and a column or other entry showing
the status of the subscriptions for each class of the Notes (both
for the issuance as a whole and for each Underwriters’
specific retention) and confirmation information, (b) expected
settlement date and expected and actual pricing parameters of the
Notes, (c) information relating to the class, size, rating,
price, CUSIP, coupon, yield, spread, benchmark, status of the
Notes, the expected final payment date, the trade date and payment
window of one or more classes of Notes, the weighted average life
of any class of Notes, pricing prepayment speeds and clean up call
information, the eligibility of the Notes under TALF, and any
credit enhancement expected to be provided or any derivatives
entered into in connection with the Notes, (d) expected
maturities of any class of Notes, (e) the eligibility of the
Notes to be purchased by ERISA plans and (f) Intex.cdi files
containing data derived from information available in the
Prospectus; provided further, that, in the case of the Permitted
Information contained in clauses (i) and (ii), such Permitted
Information is posted on a Bloomberg screen or distributed via
Bloomberg and, in the case of clause (ii), other than the final
pricing terms, which will be posted on a Bloomberg screen or
distributed via Bloomberg, such free writing prospectus shall not
contain information that would require the issuer to file such free
writing prospectus pursuant to Rule 433 under the
Act.
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
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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 Preliminary Prospectus, each 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 and certain static pool
data (within the meaning of Item 1105 of Regulation AB under
the Act) included on the website listed in the Preliminary
Prospectus and the Prospectus.
(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 any
Class of the Notes or makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for any 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 any Class of the Notes.
(d)
The Representative shall have received an opinion of Luce, Forward,
Hamilton & Scripps LLP, special California counsel to the
Company and AHFC, or of such other California counsel satisfactory
to the Representative, dated the Closing Date
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and
satisfactory in form and substance to the Representative and in
form and scope to counsel for the Representative, to the effect
that:
(i) Each of AHFC
and the Company has the corporate power and corporate authority to
execute and deliver the Receivables Purchase Agreement, and to
incur its obligations set forth therein.
(ii) Each of AHFC
and the Company has the corporate power and corporate authority to
execute and deliver the Sale and Servicing Agreement, and to incur
its obligations set forth therein.
(iii) Each of AHFC
and the Company has the corporate power and corporate authority to
carry on its business as described in the Prospectus.
(iv) The execution
and delivery by AHFC of each of the Basic Documents to which AHFC
is a party, and the incurring by AHFC of the obligations of AHFC
thereunder, have been duly authorized by all necessary corporate
action on the part of AHFC, and each of the Basic Documents to
which AHFC is a party has been duly executed and delivered by AHFC.
The execution and delivery by the Company of each of the Basic
Documents to which the Company is a party, and the incurring by the
Company of the obligations of the Company thereunder, have been
duly authorized by all necessary corporate action on the part of
the Company, and each of the Basic Documents to which the Company
is a party has been duly executed and delivered by the
Company.
(v) The direction
by the Company to the Indenture Trustee to authenticate the Notes,
as set forth in a letter dated as of the Closing Date, and the
direction by the Company to the Owner Trustee to execute and
deliver to the Indenture Trustee for authentication the Notes, as
set forth in a letter dated as of the Closing Date, have been duly
authorized by all necessary corporate action on the part of the
Company.
(vi) The direction
by the Company to the Owner Trustee to authenticate and deliver the
Certificates, as set forth in a letter dated as of the Closing
Date, has been duly authorized by all necessary corporate action on
the part of the Company.
(vii) The
execution and delivery by AHFC of each of the Basic Documents to
which AHFC is a party, and the incurring by AHFC of the obligations
of AHFC thereunder, do not violate any federal or California
statute, rule or regulation applicable to AHFC. The execution and
delivery by the Company of each of the Basic Documents to which the
Company is a party, and the incurring by the Company of the
obligations of the Company thereunder, do not violate any federal
or California statute, rule or regulation applicable to the
Company.
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(viii) Assuming
that AHFC follows its standard operating procedures for creating
and perfecting security interests in California Financed Vehicles,
as described in an Officers’ Certificate executed by AHFC and
attached hereto, and relying solely on such
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