Exhibit 1.1
EXECUTION COPY
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HYUNDAI AUTO RECEIVABLES TRUST 2003-A
$753,347,000 ASSET BACKED NOTES
HYUNDAI ABS FUNDING CORPORATION
(DEPOSITOR)
HYUNDAI MOTOR FINANCE COMPANY
(SELLER AND SERVICER)
UNDERWRITING AGREEMENT
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October 29, 2003
Banc One Capital Markets, Inc.,
as Representative of the
Several Underwriters
1 Bank One Plaza
Mail Suite IL1-0463
Chicago, Illinois 60670
Ladies and Gentlemen:
SECTION 1. Introduction. Hyundai ABS Funding Corporation (the "Depositor")
proposes to cause Hyundai Auto Receivables Trust 2003-A (the "Trust") to issue
and sell $170,000,000 principal amount of its 1.11% Class A-1 Notes (the "Class
A-1 Notes"), $241,000,000 principal amount of its 1.56% Class A-2 Notes (the
"Class A-2 Notes"), $130,000,000 principal amount of its 2.33% Class A-3 Notes
(the "Class A-3 Notes"), and $120,618,000 principal amount of its 3.02% Class
A-4 Notes (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 "Class A Notes"), $39,034,000
principal amount of its 2.99% Class B Notes (the "Class B Notes"), $11,710,000
principal amount of its 3.19% Class C Notes (the "Class C Notes"), and
$40,985,000 principal amount of its 4.06% Class D Notes (the "Class D Notes" and
together with the Class A Notes, the Class B Notes and the Class C Notes, the
"Notes") to the several underwriters set forth on Schedule I (each, an
"Underwriter"), for whom you are acting as representative (the
"Representative"). The Notes will be issued pursuant to an Indenture, to be
dated as of November 7, 2003 (the "Indenture"), between the Trust and Wells
Fargo Bank Minnesota, N.A., as indenture trustee (in such capacity, the
"Indenture Trustee"). The assets of the Trust will include, among other things,
a pool of motor vehicle retail installment sale contracts acquired by Hyundai
Motor Finance Company ("HMFC") and sold to the Trust on the Closing Date (the
"Receivables") secured by new and used automobiles and light-duty trucks and
financed thereby (the "Vehicles"), certain monies received thereunder after the
close of business on September 30, 2003 (the "Cutoff Date"), and the other
property and the proceeds thereof to be conveyed to the Trust pursuant to the
Sale and Servicing Agreement to be dated as of November 7, 2003 (the "Sale and
Servicing Agreement") among the Trust, HMFC, as servicer, the Depositor and the
Indenture Trustee. Pursuant to the Sale and Servicing Agreement, the Depositor
will sell the Receivables to the Trust and HMFC will service the Receivables on
behalf of the Trust. In addition, pursuant to the Owner Trust Administration
Agreement to be dated as of November 7, 2003 (the "Administration Agreement")
among the Trust, HMFC, and the Indenture Trustee, HMFC will agree to perform
certain administrative tasks on behalf of the Trust. The Depositor formed the
Trust pursuant to a trust agreement, and it will be governed by an Amended and
Restated Trust Agreement (the "Trust Agreement") to be dated as of November 7,
2003 between the Depositor and Wilmington Trust Company, as owner trustee (the
"Owner Trustee"). The owner trust certificate (the "Certificate"), representing
a fractional undivided interest in the Trust, will be issued to the Depositor
pursuant to the Trust Agreement.
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The Depositor will acquire the Receivables from HMFC pursuant to the terms
of the Receivables Purchase Agreement (the "Receivables Purchase Agreement") to
be dated as of November 7, 2003 between the Depositor and HMFC. HMFC has
acquired the Receivables from franchised dealers (the "Hyundai Dealers")
pursuant to certain dealer retail agreements between each Hyundai Dealer and
HMFC (collectively, the "Dealer Retail Agreements").
Capitalized terms used but not otherwise defined in this Underwriting
Agreement (this "Agreement") shall have the meanings set forth in the Sale and
Servicing Agreement or if not defined therein, then as defined in the Prospectus
Supplement (as defined below). As used herein, the term "Transaction Documents"
refers to the Sale and Servicing Agreement, Indenture, Trust Agreement,
Receivables Purchase Agreement and Administration Agreement.
SECTION 2. Representations and Warranties. (a) As a condition of the
several obligations of the Underwriters to purchase the Notes, each of the
Depositor and HMFC makes the representations and warranties set forth below to
the Representative and each of the Underwriters. To the extent a representation
or warranty specifically relates to the Depositor, such representation or
warranty is made by the Depositor and HMFC jointly, and to the extent a
representation or warranty specifically relates solely to HMFC, such
representation or warranty is only made by HMFC and not by the Depositor.
(i) The registration statement on Form S-3 (No. 333-108545), including
the exhibits thereto, has been filed with the Securities and Exchange
Commission (the "Commission") for registration under the Securities Act of
1933, as amended (the "Securities Act"), which registration statement has
been declared effective by the Commission. Such registration statement,
including the exhibits thereto, as amended to the date hereof, is
hereinafter called the "Registration Statement"; the prospectus included in
the Registration Statement, at the time the Registration Statement became
effective, or as subsequently filed with the Commission pursuant to Rule
424(b) under the Securities Act is hereinafter called the "Base
Prospectus"; a prospectus supplement relating to the Notes, in the form
first filed after the date hereof pursuant to Rule 424(b) under the
Securities Act, including the Base Prospectus as so supplemented is
hereinafter called the "Prospectus Supplement"; and the Base Prospectus
together with the Prospectus Supplement are hereinafter called the
"Prospectus." Any preliminary form of the Prospectus that has heretofore
been filed pursuant to Rule 424(b) is hereinafter called a "Preliminary
Prospectus." Any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Base
Prospectus or the Prospectus Supplement, shall be deemed to refer to and
include the filing of any document under the Securities Exchange Act of
1934, as amended (the "Exchange Act") after the Effective Date or the issue
date of the Base Prospectus or Prospectus Supplement, as the case may be,
deemed to be incorporated therein by reference pursuant to Item 12 of Form
S-3 under the Securities Act.
(ii) The Registration Statement as of the effective date thereof (the
"Effective Date"), and the Prospectus, as of the date of the Prospectus
Supplement, complied in all material respects to the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder (the "Rules and Regulations");
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and the information in the Registration Statement, as of the Effective
Date, will conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations and did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and the Prospectus, and any amendments thereof and supplements
thereto, as of the date of the Prospectus Supplement and as of the Closing
Date, will conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations and will not include any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading; provided, however, that neither
HMFC nor the Depositor makes any representations or warranties as to the
information contained in or omitted from such Registration Statement or
such Prospectus (or any supplement thereto) in reliance upon and in
conformity with written information furnished to HMFC by or on behalf of
the Underwriters specifically for use in the preparation thereof which
information consists of the information set forth in the chart following
the first paragraph, the second paragraph, the selling concession and
reallowance chart at the end of the second paragraph, the third paragraph
and the fourth paragraph under the heading "Underwriting" in the Prospectus
Supplement (the "Underwriters' Information").
(iii) Since the respective dates as of which information is given in
the Prospectus there has not been any material adverse change, or, to the
best of our knowledge, any development involving a prospective material
adverse change, in or affecting the condition, financial or otherwise,
earnings, business or operations of any of HMFC or its subsidiaries,
including the Depositor and its subsidiaries, taken as a whole, except as
disclosed to the Representative in writing prior to the date hereof.
(iv) The Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act").
(v) The Trust Agreement is not required to be qualified under the
Trust Indenture Act.
(vi) The Trust is not required to register under the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(vii) The issuance and sale of the Notes have been duly authorized by
all necessary corporate action of the Depositor and, when executed,
authenticated and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement and the Indenture, the Notes
will be valid and binding obligations of the Trust, enforceable in
accordance with their terms, and entitled to the benefits of the Indenture.
(viii) Each of the Depositor and HMFC has been duly incorporated and
is validly existing as a corporation in good standing under the law of its
jurisdiction of incorporation with full power and authority to own, lease
and operate its properties and assets and conduct its business as described
in the Prospectus, is duly qualified to transact
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business and is in good standing in each jurisdiction in which its
ownership, leasing or operation of its properties or assets or the conduct
of its business requires such qualification, and has full power and
authority to execute and perform its obligations under this Agreement and
the Transaction Documents to which it is a party.
(ix) The execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Depositor and HMFC, and
this Agreement has been duly executed and delivered by the Depositor and
HMFC and when duly executed and delivered by the other parties hereto will
be the legal, valid and binding agreement of the Depositor and HMFC,
enforceable against the Depositor and HMFC in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights, and subject to general equity principles.
(x) The execution and delivery of the Transaction Documents to which
it is a party have been duly authorized by all necessary corporate action
of the Depositor or HMFC, as applicable, and, when duly executed and
delivered by the Depositor, HMFC and the other parties thereto, will be
legal, valid and binding agreements of the Depositor and HMFC, enforceable
against the Depositor or HMFC in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights, and subject to general equity principles.
(xi) The execution and delivery by each of the Depositor and HMFC of,
and the performance by each of the Depositor and HMFC of its obligations
under, this Agreement, each of the Transaction Documents to which it is a
party and the Depositor under the Notes, the issuance and sale of the Notes
to the Underwriters by the Depositor pursuant to this Agreement, the
compliance by the Depositor and HMFC with the other provisions of this
Agreement and the consummation of the other transactions herein
contemplated do not (x) require the consent, approval, authorization,
registration or qualification of or with any governmental authority, except
such as have been obtained or made, or (y) conflict with or result in a
breach or violation or acceleration of, or constitute a default under, any
term or provision of the organizational documents of the Depositor or HMFC,
any indenture mortgage, deed of trust, lease or other agreement or
instrument to which the Depositor or HMFC is a party or by which any of
them or their properties is bound or result in a violation of or contravene
the terms of any statute, order or regulation applicable to the Depositor
or HMFC of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Depositor or HMFC, or
result in the creation of any lien upon any property or assets of the
Depositor or HMFC (other than pursuant to the Transaction Documents).
(xii) None of the Depositor or HMFC is in violation of any term or
provision of its charter documents or by-laws, or in breach of or in
default under any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
applicable to the Depositor or HMFC, the consequence of which violation,
breach or default would have (a) a materially adverse effect on or
constitute a
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materially adverse change in the condition (financial or otherwise),
earnings, properties, business affairs, net worth or results of operations
of the Depositor or HMFC or (b) a material and adverse effect on its
ability to perform its obligations under this Agreement or any of the
Transaction Documents, in each case, to which it is a party.
(xiii) None of the Depositor, HMFC nor anyone acting on their behalf
has taken any action that would require registration of the Depositor or
the Trust under the Investment Company Act; nor will the Depositor nor HMFC
act, nor has either of them authorized nor will either of them authorize
any person to act, in such manner.
(xiv) The Depositor and HMFC each possess all consents, licenses,
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses, and none of the Depositor or HMFC has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a materially adverse effect on or constitute a materially
adverse change in the condition (financial or otherwise), earnings,
properties, business affairs, net worth or results of operations of the
Depositor or HMFC, except as described in or contemplated by the
Prospectus.
(xv) No legal or governmental proceedings are pending or threatened to
which the Depositor or HMFC is a party or to which the property of the
Depositor or HMFC is subject except for such proceedings that would not, if
the subject of any unfavorable decision, ruling or finding, singly or in
the aggregate, have a material adverse effect on the condition (financial
or otherwise), earnings, properties, business affairs, net worth or results
of operations of the Depositor or HMFC or the Depositor's or HMFC's ability
to perform its obligations under this Agreement, the Transaction Documents
to which it is a party or the Notes.
(xvi) No default exists, and no event has occurred which, with notice
or lapse of time or both, would constitute a default in the due performance
and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which
the Depositor or HMFC is a party or by which the Depositor or HMFC or any
of its respective properties is bound.
(xvii) The Notes and the Transaction Documents conform in all material
respects to the descriptions thereof contained in the Prospectus.
(xviii) Each of the Depositor's and HMFC's representations and
warranties in the Transaction Documents are true and correct as of the date
they are given therein and will be true and correct on the Closing Date,
and such representations and warranties are incorporated herein by
reference.
(xix) Other than as contemplated by this Agreement or as disclosed in
the Prospectus, there is no broker, finder or other party that is entitled
to receive from the
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Depositor or any of its Affiliate or the Underwriters, any brokerage or
finder's fee or other fee or commission as a result of any of the
transactions contemplated by this Agreement.
(xx) None of the Depositor, HMFC nor any of their Affiliates has
entered into, nor will it enter into, any contractual arrangement with
respect to the distribution of the Notes except for this Agreement.
(xxi) Assuming that the Notes are issued in accordance with the
provisions of the Indenture and distributed in accordance with the terms of
the Agreement and as described in the Prospectus, the Notes are "asset
backed securities" within the meaning of, and satisfy the requirements for
use of, Form S-3 under the Securities Act.
(xxii) The Notes, when duly and validly executed by the Indenture
Trustee, authenticated and delivered in accordance with the Indenture, and
delivered and paid for pursuant hereto will be validly issued and
outstanding and entitled to the benefits of the Indenture.
(xxiii) The Certificates, when duly and validly executed by the Owner
Trustee, authenticated and delivered in accordance with the Trust
Agreement, will be validly issued and outstanding and entitled to the
benefits of the Trust Agreement.
(xxiv) Any taxes, fees and other governmental charges due on or prior
to the Closing Date (including, without limitation, sales taxes) in
connection with the execution, delivery and performance of this Agreement
and the Transaction Documents and the issuance of the Notes have been or
will have been paid at or prior to the Closing Date.
(xxv) Under generally accepted accounting principles, HMFC will report
its transfer of the Receivables to the Depositor as a sale of the
Receivables, and the Depositor will report its transfer of the Receivables
to the Trust as a sale of the Receivables.
(xxvi) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of
the Notes) will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including, without
limitation, Regulations T, U, and X of the Board of Governors of the
Federal Reserve System.
(xxvii) Prior to the date hereof, none of HMFC, the Depositor nor any
of their Affiliates (including, without limitation, all officers and
directors thereof) has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security in connection
with the offering of the Notes.
(b) The above representations and warranties shall be deemed to be repeated
in their entirety at and as of the Closing Date.
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SECTION 3. Purchase, Sale and Delivery of Notes. (a) On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Depositor agrees to cause the Trust
to sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Trust the respective principal amount of the Notes
set forth opposite the name of such Underwriter on Schedule I, at a purchase
price (the "Purchase Price") equal to "Price $" as specified on Schedule II
hereto. Delivery of and payment for the Notes shall be made at the offices of
Latham & Watkins, 885 Third Avenue, Suite 1000, New York, New York 10022 at
10:00 a.m. (New York time) on November 7, 2003 (or at such other place and time
on the same or other date as shall be agreed to in writing by the Representative
and the Depositor, the "Closing Date"). Delivery of one or more global notes
representing the Notes shall be made against payment of the aggregate purchase
price in immediately available funds drawn to the order of the Depositor. The
global notes to be so delivered shall be registered in the name of Cede & Co.,
as nominee of The Depository Trust Company ("DTC"). The interests of beneficial
owners of the Notes will be represented by book entries on the records of DTC
and participating members thereof. Definitive Notes representing the Notes will
be available only under limited circumstances.
(b) The Depositor hereby acknowledges that the payment of monies pursuant
to Section 3(a) hereof (a "Payment") by or on behalf of the Underwriters of the
aggregate Purchase Price for the Notes does not constitute closing of a purchase
and sale of the Notes. Only (1) the execution and delivery, by facsimile or
otherwise, of a receipt for Notes by the Representative, and (2) the release of
all Permitted Liens, as listed on Schedule IV hereto, by 4:00 p.m. (New York
time) on the Closing Date, indicates completion of the closing of a purchase of
the Notes from the Depositor. Furthermore, in the event that the Underwriters
make a Payment to the Depositor prior to the completion of the closing of a
purchase of Notes, the Depositor hereby acknowledges that until the
Representative executes and delivers such receipt for the Notes and until all
Permitted Liens have been released by or before 4:00 p.m. (New York time) on the
Closing Date, the Depositor will not be entitled to the Payment and shall return
the Payment to the Underwriters as soon as practicable (by wire transfer of
same-day funds) upon demand. In the event that the closing of a purchase of
Notes is not completed and the Payment is not returned by the Depositor to the
Underwriters on the same day the Payment was received by the Depositor, the
Depositor agrees to pay to the Underwriters in respect of each day the Payment
is not returned by it, in same-day funds, interest on the amount of such Payment
in an amount representing the Underwriters' cost of financing as reasonably
determined by the Representative.
(c) It is understood that the Representative or any Underwriter,
individually, may (but shall not be obligated to) make Payment on behalf of any
Underwriter or Underwriters for any of the Notes to be purchased by such
Underwriter or Underwriters. No such Payment shall relieve such Underwriter or
Underwriters from any of its or their obligations hereunder.
SECTION 4. Offering by Underwriters. Upon the authorization by the
Representative of the release of the Notes, the several Underwriters propose to
offer the Notes for sale upon the terms and conditions set forth in this
Agreement and the Prospectus.
SECTION 5. Covenants of the Depositor and HMFC. The Depositor and HMFC each
covenant and agree with the Underwriters as set forth below.
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(a) To file the Prospectus, properly completed, with the Commission
pursuant to and in accordance with Rule 424(b) no later than the second business
day following the day it is first used. The Company will advise the
Representative promptly of any such filing pursuant to Rule 424(b).
(b) To furnish to the Underwriters and counsel for the Underwriters,
without charge, as many copies of the Registration Statement, Preliminary
Prospectus and the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Underwriters reasonably request. The Prospectus shall be furnished on or prior
to 3:00 P.M., New York time, on or prior to the third business day preceding the
Closing Date. All other documents shall be so furnished as soon as available and
in such quantities as the Representative may reasonably request. The Depositor
or HMFC will pay the expenses of printing, reproducing and distributing to the
Underwriters all such documents.
(c) To advise the Representative promptly, in writing, of any proposal to
amend or supplement the Registration Statement or the Prospectus and will not
effect any such amendment or supplement to which the Representative shall
reasonably object; and to also advise the Representative promptly of the
effectiveness of each Registration Statement and of any amendment or supplement
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.
(d) To furnish the Underwriters with copies of the Preliminary Prospectus
and the Prospectus and each amendment or supplement, during the period when any
Underwriter is required to deliver a Prospectus under the Securities Act, at the
cost and expense of the Depositor, each in such quantities as the Representative
may from time to time reasonably request (and subsequent to such period, to
assist the Underwriters in obtaining sufficient additional copies of the
Prospectus, at the cost and expense of the Underwriters requesting such
additional copies); and if, at any time prior to the expiration of the
Prospectus delivery period under the Securities Act, any event shall have
occurred 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 when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary or desirable
during such same period to amend or supplement the Prospectus, to notify the
Representative and promptly prepare and file with the Commission (subject to the
Representative's prior review pursuant to Section 5(c)), at its own expense, an
amendment or supplement which will correct such statement or omission, or an
amendment which will effect such compliance. Upon the Representative's request,
the Depositor will prepare and furnish without charge to each Underwriter and to
any dealer in securities as many written and electronic copies as the
Representative may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or omission
or effect such compliance. Neither the Underwriters' consent to, nor the
Underwriters' distribution of any amendment or supplement to the Prospectus
shall constitute a waiver of any of the conditions set forth in Section 7
hereof.
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(e) The Depositor will arrange for the qualification of the Notes for
offering and sale in each jurisdiction as the Representative shall designate
including, but not limited to, pursuant to applicable state securities ("Blue
Sky") laws of certain states of the United States of America or other U. S.
jurisdictions so designated, and the Depositor shall maintain such
qualifications in effect for so long as may be necessary in order to complete
the placement of the Notes; provided, however, that the Depositor shall not be
obliged to file any general consent to service of process or to qualify as a
foreign corporation or as a securities dealer in any jurisdiction or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. The Depositor will promptly advise the
Representative of the receipt by the Depositor of any notification with respect
to the suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose.
(f) The Depositor will cooperate with the Representative and use its best
efforts to permit the Notes to be eligible for clearance and settlement through
DTC.
(g) HMFC and the Depositor shall (i) furnish or make available to the
Underwriters or their counsel such additional documents and information
regarding HMFC, the Depositor and their respective affairs as the Underwriters
may from time to time reasonably request prior to the Closing Date, including
any and all documentation reasonably requested in connection with its due
diligence efforts regarding information in the Registration Statement and the
Prospectus and in order to evidence the accuracy or completeness of any of the
conditions contained in this Agreement, (ii) provide the Underwriters or their
advisors, or both, prior to acceptance of its subscription, the opportunity to
ask questions of, and receive answers with respect to such matters.
(h) From the date hereof until the Closing Date, none of the Depositor,
HMFC, nor any of their respective Affiliates will, without the prior written
consent of the Representative, directly or indirectly, offer, sell or contract
to sell or announce the offering of, in a public or private transaction, any
other collateralized securities similar to the Notes.
(i) During the period beginning on the Closing Date and continuing until
and including the date that is six months after the Closing Date, none of the
Depositor, HMFC or any of their Affiliates shall offer, sell, contract to sell
or otherwise dispose of any securities of the Trust, the Depositor or HMFC in a
public offering that are substantially similar to the Notes, without first
furnishing to the Representative an opinion of counsel (in form and from such
firm as is reasonably satisfactory to the Representative and counsel to the
Representative) stating that such public offering of securities would not result
in any violation of federal or state securities laws with respect to the Notes.
(j) Until the retirement of the Notes, neither the Depositor nor HMFC
shall, nor cause the Trust to, be or become an open-end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act.
(k) Until the retirement of the Notes, or until none of the Underwriters
maintains a secondary market in the Notes, whichever occurs first, HMFC shall
cause the Depositor to and
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the Depositor shall deliver to each of the Underwriters, through the
Representative, the annual statement of compliance and any annual independent
certified public accountants' report furnished to the Indenture Trustee pursuant
to the Sale and Servicing Agreement, as soon as such statements and reports are
furnished to the Indenture Trustee.
(l) So long as any of the Notes are outstanding, HMFC shall cause the
Depositor to and the Depositor shall deliver to each of the Underwriters,
through the Representative: (i) all documents distributed to Noteholders and
(ii) from time to time, any other information concerning HMFC, the Depositor or
the Trust as the Underwriters may reasonably request only insofar as such
information reasonably relates to the Registration Statement, the Prospectus or
the transactions contemplated by the Transaction Documents.
(m) On or before the Closing Date, HMFC and the Depositor (to the extent
applicable) shall each cause their computer records relating to the Receivables
to be marked to show the Trust's absolute ownership of the Receivables, and from
and after the Closing Date neither the Depositor nor HMFC shall take any action
inconsistent with the Trust's ownership of such Receivables, other than as
permitted by the Indenture or Sale and Servicing Agreement.
(n) To the extent, if any, that any of the ratings assigned to the Notes by
any of the rating agencies that initially rate the Notes are conditional upon
the furnishing of documents or the taking of any other actions by the Depositor
or HMFC, as the case may be, the relevant party shall furnish, or cause to be
furnished, such documents and take any such other actions as promptly as
possible.
(o) The Depositor or HMFC 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.
SECTION 6. Payment of Expenses. HMFC will pay all expenses incident to the
transactions contemplated by this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 8 hereof, including: (a) the preparation, printing and distribution of
the Registration Statement, the Preliminary Prospectus and the Prospectus
Supplement and each amendment or supplement thereto and delivery of copies
thereof to the Underwriters, (b) the preparation of this Agreement, (c) the
preparation, issuance and delivery of the Notes to the Underwriters (or any
appointed clearing organizations), (d) the fees and disbursements of HMFC's and
the Depositor's accountants, (e) the qualification of the Notes under state
securities laws including filing fees and the fees and disbursements of counsel
to the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky survey (including the printing and delivery thereof
to the Underwriters), (f) any fees charged by rating agencies for the rating (or
consideration of the rating) of the Notes, (g) the fees and expenses incurred
with respect to any filing with, and review by, DTC or any similar
organizations, (h) the fees and disbursements of the Indenture Trustee and its
counsel, if any, (i) the fees and disbursements of the Owner Trustee and its
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counsel, if any, (j) the fees and expenses of Richards Layton & Finger, Delaware
counsel to the Trust, and (k) the reasonable fees and expenses of HMFC's and the
Depositor's counsel. Notwithstanding clause (k) above, to the extent that the
transactions contemplated by this Agreement are consummated, HMFC shall only pay
the fees and expenses described in clause (k) to the extent that such fees and
expenses exceed $150,000 and the Underwriters shall pay such fees and expenses
in an aggregate amount of up to $150,000. In addition, if for any reason the
purchase of the Notes by the Underwriters is not consummated (other than
pursuant to Section 10 hereof), HMFC will reimburse the Representative and the
Underwriters for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel to the Representative and the Underwriters) incurred by
them in connection with the offering of the Notes.
SECTION 7. Conditions of the Obligations of the Underwriters. The several
obligations of the Underwriters to purchase and pay for the Notes will be
subject to the accuracy of the representations and warranties made herein, to
the accuracy of the statements of officers made pursuant hereto, to the
performance by the Depositor and HMFC of their obligations hereunder, and to the
following additional conditions precedent:
(a) On the Closing Date, each of the Transaction Documents, the Notes and
the Certificates shall have been duly authorized, executed and delivered by the
parties thereto, shall be in full force and effect and no default shall exist
thereunder, and the Owner Trustee and the Indenture Trustee shall have received
a fully executed copy thereof or, with respect to the Notes and Certificates, a
conformed copy thereof. The Transaction Documents, the Notes and the
Certificates shall be substantially in the forms heretofore provided to the
Representative.
(b) Both at or before the date hereof, and on or before the Closing Date,
the Representative shall have received letters, dated as of the date hereof and
as of the Closing Date, respectively, of KPMG LLP, independent certified public
accountants, substantially in the form of the drafts to which the Representative
has agreed previously and otherwise substantially in form and substance
reasonably satisfactory to the Representative and counsel to the Underwriters.
(c) The Prospectus shall have been filed with the Commission in accordance
with Rule 424(b) of the Securities Act and Section 5(a) hereof.
(d) (i) None of the Depositor, HMFC nor any of their subsidiaries shall
have sustained, since the date of the latest audited financial statements
provided to the Representative, any material loss or interference with its
respective business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Registration Statement or the Prospectus, and (ii) since the respective dates as
of which information is given in the Registration Statement and the Prospectus
there shall not have been any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position, or
results of operations of the Depositor, HMFC, and their respective subsidiaries,
otherwise than as set forth or contemplated in the Registration Statement and
the Prospectus, the effect of which, in any such case described in clause (i) or
(ii), in the judgment of the Representative, makes it impracticable or
inadvisable to proceed with the
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offering or the delivery of the Notes on the terms and in the manner
contemplated in this Agreement and in the Prospectus.
(e) The Representative shall have received an opinion of in-house counsel
to the Depositor and HMFC, addressed to the Representative, dated the Closing
Date and satisfactory in form and substance to the Representative and counsel to
the Underwriters, to the effect that:
(i) Each of HMFC and the Depositor has been duly formed and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its formation, and has the power and authority to own its
properties and to conduct its business as presently conducted, and to enter
into and perform its obligations under this Agreement and the Transaction
Documents to which each is a party, and had at all relevant times, and now
has, the power and authority to acquire, own, sell and service the
Receivables and the related Collateral.
(ii) Each of this Agreement and each Transaction Document has been
duly authorized, executed and delivered by the Depositor and HMFC, as
applicable.
(iii) Each of the Depositor and HMFC is duly qualified to do business
and is in good standing, and has obtained all necessary licenses, in each
jurisdiction in which failure to so qualify or obtain such licenses would
(a) render any Receivable unenforceable by the Depositor or the Indenture
Trustee on behalf of any Noteholder or (b) have a material adverse affect
upon its business or the ownership of its property.
(iv) Neither: (A) the transfer of the Receivables from HMFC to the
Depositor pursuant to the Receivables Purchase Agreement, (B) the transfer
of the Receivables from the Depositor to the Trust pursuant to the Sale and
Servicing Agreement, (C) the assignment of the Collateral from HMFC to the
Depositor and thereafter to the Trust, (D) the assignment of its rights
under the Receivables Purchase Agreement by the Depositor to the Trust, (E)
the grant of the security interest in the Receivables and the Collateral by
the Trust to the Indenture Trustee pursuant to the Indenture, (F) the
execution and delivery of this Agreement and the Transaction Documents to
which it is a party by HMFC, (G) the execution and delivery of this
Agreement, the Transaction Documents to which it is a party and the Notes
by the Depositor, (H) the consummation of any transactions contemplated in
this Agreement or the Transaction Documents, nor (I) the fulfillment of the
terms of this Agreement, the Transaction Documents or the Notes by HMFC or
the Depositor, as the case may be, will (1) conflict with, or result in a
breach, violation or acceleration of, or constitute a default under, any
term or provision of the articles of incorporation or by-laws of HMFC or
the Depositor, or of any indenture or other agreement or instrument to
which either of them is a party or by which any of them or their respective
property is bound, or (2) result in a violation, or contravene the terms,
of any statute, order or regulation applicable to either of them of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over HMFC or the Depositor, in each case that would materially
and adversely affect the performance by the Depositor or HMFC of its
obligations under this Agreement or the Transaction Documents to which it
is a party.
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(v) There are no actions, proceedings or investigations pending or, to
the best of such counsel's knowledge after due inquiry, threatened before
any court, administrative agency or other tribunal: (A) asserting the
invalidity or unenforceability of this Agreement or the Transaction
Documents, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or the Transaction Documents,
or the execution and delivery thereof, (C) that could reasonably be
expected to materially and adversely affect the performance by the
Depositor of its obligations under this Agreement or the Transaction
Documents, (D) that could reasonably be expected to materially and
adversely affect the performance by HMFC of its obligations under this
Agreement or the Transaction Documents to which it is a party.
(vi) Such counsel is familiar with HMFC's standard operating
procedures relating to its acquisition of a perfected first priority
security interest in the vehicles financed by it pursuant to retail
installment sale contracts in the ordinary course of its business. Assuming
that its standard procedures are followed with respect to the perfection of
security interests in the Vehicles (and such counsel has no reason to
believe that HMFC has not followed its standard procedures in all material
respects in connection with the perfection of security interests in the
Vehicles), HMFC has acquired or will acquire a perfected first priority
security interest in the Vehicles. Neither such security interest nor the
perfection of such security interest shall be adversely affected by the
transfer of the Receivables to the Depositor, the Trust or the pledge
thereof to the Indenture Trustee.
(vii) The direction by the Trust to the Indenture Trustee to
authenticate the Notes has been duly authorized by HMFC, acting as the
administrator of the Trust under the Administration Agreement.
(viii) The Receivables are "chattel paper" as defined in the Uniform
Commercial Code as in effect in California.
(ix) Neither the Depositor nor HMFC is an "investment company" as such
term is defined in the Investment Company Act, and neither the Depositor
nor HMFC will become an "investment company" as a result of the
consummation of the transaction as contemplated herein
Such opinion may contain such assumptions, qualifications and limitations
as are usual and customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America, the
corporate laws of the State of Delaware and the laws of the State of California.
(f) The Representative shall have received an opinion of Latham & Watkins,
counsel to the Depositor, HMFC and the Trust, addressed to the Representative,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, to the effect that:
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(i) This Agreement, and each Transaction Document to which the
Depositor, the Trust and HMFC (each a "Company") is a party constitutes a
legally valid and binding obligation of such Company, enforceable against
such Company in accordance with its terms.
(ii) The Notes, when duly executed and delivered by the Owner Trustee
on behalf of the Trust, authenticated by the Indenture Trustee and
delivered and paid for pursuant to this Agreement, will constitute legally
valid and binding obligations of the Trust, enforceable against the Trust
in accordance with their terms.
(iii) The execution and delivery of this Agreement and the Transaction
Documents by each Company a party thereto, and the consummation by such
Company of the transactions contemplated by this Agreement and the
Transaction Documents to which it is a party on the date hereof do not (i)
violate the provisions of the agreements described in an exhibit to such
opinion (such agreements, the "Conduit Documents"), (ii) violate any
federal or New York statute, rule, or regulation applicable to such
Company, or (iii) require any consents, approvals, authorizations,
registrations, declarations or filings by such Company under any federal or
New York statute, rule, or regulation applicable to such Company except
filings and recordings required in order to perfect or otherwise protect
the security interests under the Transaction Documents.
(iv) The Receivables Purchase Agreement is effective to create a valid
security interest, as such term is defined in the UCC as in effect in the
State of New York (the "New York UCC"), in favor of the Depositor in that
portion of the collateral, in which HMFC has rights, as described in
Section 2.01(c) of the Receivables Purchase Agreement and the transfer of
which pursuant to Section 2.01(c) of the Receivables Purchase Agreement is
subject to Article 9 of the New York UCC (the "RPA Assets").
(v) The Sale and Servicing Agreement is effective to create a valid
security interest, as such term is defined in the New York UCC, in favor of
the Trust in that portion of the collateral, in which the Depositor has
rights, as described in Section 2.01 of the Sale and Servicing Agreement
and the transfer of which pursuant to Section 2.01 of the Sale and
Servicing Agreement, is subject to Article 9 of the New York UCC (the "SSA
Assets").
(vi) The Indenture is effective to create a valid security interest,
as such term is defined in the New York UCC, in favor of the Indenture
Trustee in the Granting Clause of the Indenture in which the Trust has
rights which is subject to Article 9 of the New York UCC (the "Indenture
Assets" and, together with the RPA Assets and the SSA Assets, the
"Transferred Assets").
(vii) The HMFC Financing Statement is in appropriate form for filing
in the California filing office specified in such opinion (the "California
Filing Office"). Insofar as Division 9 of the UCC as in effect in the State
of California (the "California UCC") is applicable (without regard to
conflicts of law principles), upon the proper filing of the release
statements in the applicable filing offices specified in such opinion and
the
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HMFC Financing Statement in the California Filing Office, the security
interest in favor of the Depositor in the RPA Assets described in the HMFC
Financing Statement will be perfected in that portion of such RPA Assets
that can be perfected under the California UCC by the filing of a financing
statement with the California Filing Office (the "Division 9 Filing RPA
Assets").
(viii) The HMFC search reports (as described in such opinion) identify
no secured party who has filed a financing statement naming HMFC as debtor
and describing the Division 9 Filing RPA Assets, other than in connection
with the Permitted Liens.
(ix) The Depositor Financing Statement is in appropriate form for
filing in the Delaware filing office specified in such opinion (the
"Delaware Filing Office"). Insofar as Article 9 of the UCC as in effect in
the State of Delaware (the "Delaware UCC") is applicable (without regard to
conflicts of law principles), upon the proper filing of the Depositor
Financing Statement in the Delaware Filing Office, the security interest in
favor of the Trust in the SSA Assets described in the Depositor Financing
Statement will be perfected under the Delaware UCC by the filing of a
financing statement with the Delaware Filing Office (the "Article 9 Filing
SSA Assets").
(x) The Depositor search reports (as described in such opinion)
identify no secured party who has filed a financing statement naming the
Depositor as debtor and describing the Article 9 Filing SSA Assets.
(xi) Assuming the Receivables are created under, and are evidenced
solely by, motor vehicle retail installment contracts in the form of the
contract attached as an exhibit to such opinion, such Receivables are
"chattel paper" as defined in Section 9-102(11) of the New York UCC.
(xii) The Registration Statement was declared effective under the
Securities Act, any required filing of the Prospectus or any supplement
thereto pursuant to Rule 424(b) has been made in the manner and in the time
period required by Rule 424, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are threatened, and the Registration Statement and the
Prospectus, and each amendment or supplement thereof, as of their
respective effective or issue dates, complies as to form in all material
respects with the requirements of the Securities Act and the Rules and
Regulations.
(xiii) The Trust Agreement is not required to be qualified under the
Trust Indenture Act.
(xiv) The Indenture has been duly qualified under the Trust Indenture
Act in the manner contemplated by the Registration Statement, the
Prospectus and this Agreement.
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(xv) The Class A-1 Notes are "eligible securities" within the meaning
of Rule 2a-7 promulgated under the Investment Company Act.
(xvi) The Trust is not an "investment company" as such term is defined
in the Investment Company Act, and the Trust will not become an "investment
company" as a result of the consummation of the transaction as contemplated
herein.
(xvii) The statements in the Prospectus under the heading "ERISA
CONSIDERATIONS" to the extent they constitute matters of law or legal
conclusions, are correct in all material respects.
Such opinion may contain such assumptions, qualifications and limitations
as are usual and customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America, the
corporate laws of the State of Delaware, the laws of the State of California,
and the laws of the State of New York.
(g) The Representative shall have received an opinion of Latham & Watkins,
counsel to the Depositor, HMFC and the Trust, addressed to the Representative,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, to the effect that:
(i) In a properly presented and argued case in a proceeding under
Title 11 of the United States Code, 11 U. S. C. Section 101 et seq. (the
"Bankruptcy Code") in which HMFC is the debtor, the bankruptcy court would
not, under applicable federal bankruptcy law, apply the doctrine of
substantive consolidation to consolidate the assets and liabilities of the
Depositor with the assets and liabilities of HMFC.
(ii) In a properly presented and argued case in a proceeding under the
Bankruptcy Code, in which either HMFC or the Depositor is the debtor, the
bankruptcy court would uphold the creation of a "true sale" with respect to
the sale of the Receivables from HMFC to the Depositor or from the
Depositor to the Trust, as applicable.
(iii) If the Depositor were to become a debtor in a case under the
Bankruptcy Code, a federal bankruptcy court, which acted reasonably and
correctly applied the law to the facts as set forth in such opinion after
full consideration of all relevant factors, would hold either that (x) (A)
no Receivables held by the Trust are property of the estate of the
Depositor under Section 541 of the Bankruptcy Code and (B) the automatic
stay arising pursuant to Section 362 of the Bankruptcy Code upon the
commencement of a bankruptcy case involving the Depositor is not applicable
to payments on the Receivables.
Such opinion may contain such assumptions, qualifications and limitations
as are usual and customary in opinions of this type and are reasonably
acceptable to counsel to the
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Underwriters. In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the federal law
of the United States of America, the laws of the State of California, and the
laws of the State of New York.
(h) The Representative shall have received an opinion of Latham & Watkins,
counsel to the Depositor, HMFC and the Trust, addressed to the Representative,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, to the effect that such counsel
has participated in conferences with officers and other representatives of HMFC,
representatives of the independent public accountants for HMFC and your
representatives at which the contents of the Registration Statement, the
Prospectus and related matters were discussed and, although such counsel is not
passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus and has not made any independent check or
verification thereof, during the course of such participation, no facts came to
their attention that caused them to believe that the Registration Statement or
any amendment thereto, as of the 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 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, it being understood that such counsel will
express no belief with respect to the financial statements, schedules or other
financial data or exhibits (including numerical information with respect to the
Receivables (as such term is defined in the Prospectus)) included in, or omitted
from, the Prospectus, the second sentence in the paragraphs under each of the
captions "The Owner Trustee" and "The Indenture Trustee".
Such opinion may contain such assumptions, qualifications and limitations
as are usual and customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of New York.
(i) Latham & Watkins, in its capacity as counsel for HMFC and the
Depositor, shall have delivered one or more opinions satisfactory in form and
substance to the Representative and their counsel, dated the Closing Date and
addressed to the Representative, subject to certain considerations set forth
therein, substantially to the effect that the provisions of the Control
Agreement are effective under the New York UCC to perfect the security interest
in favor of the Indenture Trustee in that portion of Collateral consisting of
the securities account maintained with Wells Fargo Bank Minnesota, National
Association (the "Securities Intermediary") described in the Control Agreement
(the "Securities Account") and the Indenture Trustee's security interest in the
Securities Account has priority over any other security interest in the
Securities Account granted by the Issuer assuming no other secured party has
control of, and the absence of any other control agreement with respect to, the
Securities Account. We express no opinion as to the priority of any security
interest in the Securities Account as against any security
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interest in favor of the Securities Intermediary. (Capitalized terms in this
paragraph not otherwise defined herein shall have the meanings specified in such
opinions.)
Such opinion may contain such assumptions, qualifications and limitations
as are usual and customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of New York.
(j) Latham & Watkins, in its capacity as Federal tax counsel for the
Depositor and the Trust, shall have delivered an opinion satisfactory in form
and substance to the Representative and counsel to the Underwriters, dated the
Closing Date and addressed to the Representative, to the effect that, for United
States federal income tax purposes: (A) (i) the Trust will not be treated as an
association or a publicly traded partnership, taxable as a corporation, and (ii)
the Notes will be treated as indebtedness; (B) the statements in the Prospectus
under the heading "MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES" to
the extent they constitute matters of law or legal conclusions, are correct in
all material respects.
(k) The Representative shall have received an opinion of in-house counsel
to the Indenture Trustee, addressed to the Representative, dated the Closing
Date and satisfactory in form and substance to the Representative and counsel to
the Underwriters, to the effect that:
(i) The Indenture Trustee is a national banking association duly
incorporated and validly existing under the laws of the United States.
(ii) The Indenture Trustee has the full corporate trust power to
accept the office of trustee under Indenture and to enter into and perform
its obligations under the Indenture.
(iii) The execution and delivery of the Indenture and the performance
by the Indenture Trustee of its obligations under the Indenture have been
duly authorized by all necessary action of the Indenture Trustee.
(iv) The Indenture constitutes a valid and binding obligation of the
Indenture Trustee enforceable against it in accordance with their terms
under the laws of New York and the Federal laws of the United States.
(v) The execution and delivery by the Indenture Trustee of the
Indenture does not require any consent, approval or authorization of, or
any registration or filing with, any New York or United States Federal
governmental authority.
(vi) Each of the Notes has been duly executed by the Indenture Trustee
as trustee and authenticating agent.
(l) The Representative shall have received an opinion addressed to the
Representative, of Richards Layton & Finger, counsel to the Owner Trustee, dated
the Closing
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Date and satisfactory in form and substance to the Representative and counsel to
the Underwriters, to the effect that:
(i) The Owner Trustee is duly formed and validly existing under the
laws of the State of Delaware with trust powers and with its principal
place of business in the State of Delaware.
(ii) The Owner Trustee has the full corporate trust power to accept
the office of trustee under the Trust Agreement and to enter into and
perform its obligations under the Trust Agreement.
(iii) The execution and delivery of the Trust Agreement and the
performance by the Owner Trustee of its obligations under the Trust
Agreement have been duly authorized by all necessary action of the Owner
Trustee.
(iv) The execution and delivery by the Owner Trustee of the Trust
Agreement does not require any consent, approval or authorization of, or
any registration or filing with Delaware or United States Federal
governmental authority.
(v) The Owner Trustee has duly authorized, executed and delivered the
Trust Agreement and on behalf of the Trust, the Owner Trustee has duly
executed and delivered the Transaction Documents to which the Trust is a
party.
(vi) The Notes and the Certificates have been duly executed and
delivered by the Owner Trustee, on behalf of the Trust.
(m) The Representative shall have received an opinion addressed to the
Representative, of Richards Layton & Finger, special Delaware counsel for the
Trust, dated the Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, to the effect that:
(i) The Trust Agreement constitutes the legal, valid and binding
obligation of the Owner Trustee and the Depositor enforceable against the
Owner Trustee and the Depositor in accordance with its terms subject to (i)
applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent conveyance and similar laws relating to and
affecting the rights and remedies of creditors generally, and (ii)
principles of equity (regardless of whether considered and applied in a
proceeding in equity or at law).
(ii) The Trust has been duly formed and is validly existing as a
statutory trust under the Delaware Statutory Trust Act, 12 Del. C. Section
3801, et seq. (the "Statutory Trust Act") and has the power and authority
under the Trust Agreement and the Statutory Trust Act to execute, deliver
and perform its obligations under the Transaction Documents to which the
Trust is a party.
(iii) The Transaction Documents to which the Trust is a party have
been duly authorized, executed and delivered by the Trust.
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(iv) To the extent that Article 9 of the Uniform Commercial Code as in
effect in the State of Delaware on the date hereof (the "Delaware UCC") is
applicable (without regard to conflict of laws principles), upon the filing
of the Financing Statement with the Division, the Indenture Trustee will
have a perfected security interest in the Trust's rights in that portion of
the Collateral (as defined in the Indenture) described in the Financing
Statement that may be perfected by the filing of a UCC financing statement
with the Division (the "Filing Collateral") and the proceeds (as defined in
Section 9-102(a)(64) of the Delaware UCC) thereof.
(v) The Search Report sets forth the correct filing office and the
correct debtor name that are necessary to identify those persons, under the
Delaware UCC, who have on file financing statements against the Trust
covering the Filing Collateral as of the Effective Time. The 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 Effective Time.
(vi) 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.
(vii) Under Section 3805(c) of the Statutory Trust 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 rather than the holders of the
Certificates 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.
(viii) Under Section 3805(b) of the Statutory Trust Act, no creditor
of any Certificateholder shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect to, the
property of the Trust except in accordance with the terms of the Trust
Agreement.
(ix) Under 3808(a) and (b) of the Statutory Trust Act, the Trust may
not be terminated or revoked by any holder of Certificates, and the
dissolution, termination or bankruptcy of any holders of Certificates shall
not result in the termination or dissolution of the Trust, except to the
extent otherwise provided in the Trust Agreement.
(x) The execution, delivery and performance by the Owner Trustee of
the Trust Agreement and, on behalf of the Trust, the Transaction Documents
to which the Trust is a party, do not require any consent, approval or
authorization of, or any registration or filing with, any governmental
authority of the State of Delaware, except for the filing of the
Certificate of Trust with the Secretary of State.
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(xi) Neither the consummation by the Owner Trustee of the transactions
contemplated in the Trust Agreement or, on behalf of the Trust, the
transactions contemplated in the Transaction Documents to which the Trust
is a party nor the fulfillment of the terms thereof by the Owner Trustee
will conflict with or result in a breach or violation of any law of the
State of Delaware.
Such opinion may contain such assumptions, qualifications and limitations
as are usual and customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the laws of the State of Delaware. Capitalized terms
used in the above opinion paragraphs and not otherwise defined in this Agreement
will have the meanings ascribed to such terms in the relevant opinion.
(n) The Representative shall have received from McKee Nelson LLP, counsel
for the Underwriters, such opinion or opinions, dated the Closing Date, with
respect to such matters as the Representative may require, and the Depositor and
HMFC shall have furnished to such counsel such documents as it may reasonably
request for the purpose of enabling it to pass upon such matters.
(o) The Representative shall have received copies of each opinion of
counsel delivered to any rating agency, together with a letter addressed to the
Representative, dated the Closing Date, to the effect that the Representative
and the Underwriters may rely on each such opinion to the same extent as though
such opinion was addressed to each as of its date.
(p) The Representative shall have received certificates dated the Closing
Date of any two of the President, Chief Financial Officer, any Vice President,
the Controller or the Treasurer of the Depositor and HMFC in which such officers
shall state that: (A) the representations and warranties made by such entity
contained in the Transaction Documents and this Agreement are true and correct,
that such party has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied under such agreements on or before the
Closing Date, (B) since the date of this Agreement there has not occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the condition, financial or otherwise, or in the
earnings, business or operations of the Trust, the Depositor or HMFC except as
disclosed to the Representative in writing, and (C) there are no actions,
proceedings or investigations to which the Depositor or HMFC is a party or that
are threatened before any court, administrative agency or other tribunal having
jurisdiction over HMFC or the Depositor, (i) that are required to be disclosed
in the Registration Statement, (ii) asserting the invalidity of this Agreement,
any Transaction Document or the Notes, (iii) seeking to prevent the issuance of
the Notes or the consummation of any of the transactions contemplated by this
Agreement or the Transaction Documents, (iv) which could reasonably be expected
to materially and adversely affect the performance by the Depositor or HMFC of
its obligations under, or the validity or enforceability of, this Agreement, any
Transaction Document or the Notes or (v) seeking adversely to affect the federal
income tax attributes of the Notes as described in the Prospectus under the
heading "MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES."
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(q) The Representative shall have received evidence satisfactory to the
Representative and counsel to the Underwriters that, on or before the Closing
Date, UCC-1 financing statements, have been or are being filed in all applicable
governmental offices reflecting (A) the transfer of the interest of HMFC in the
Receivables, and the proceeds thereof to the Depositor pursuant to the
Receivables Purchase Agreement, (B) the transfer of the interest of the
Depositor in the Receivables Purchase Agreement, the Receivables, and the
proceeds thereof to the Trust pursuant to the Sale and Servicing Agreement, and
(C) the grant by the Trust to the Indenture Trustee under the Indenture of a
security interest in the interest of the Trust in the Receivables Purchase
Agreement, the Receivables, the Collateral and the proceeds thereof.
(r) The Class A-1 Notes shall have been rated in the highest short-term
rating by both Standard and Poor's, a division of The McGraw-Hill Companies,
Inc. ("S&P"), Fitch Ratings ("Fitch") and Moody's Investors Service, Inc.
("Moody's"). The Class A Notes (other than the Class A-1 Notes) shall have been
rated in the highest long-term rating by each of S&P, Fitch and Moody's. The
Class B Notes shall have been rated in at least the second highest rating
category by each of S&P, Fitch and Moody's. The Class C Notes shall have been
rated in at least the third highest rating category by each of S&P, Fitch and
Moody's. The Class D Notes shall have been rated in at least the fourth highest
rating category by each of S&P, Fitch and Moody's.
(s) The Representative shall have received, from each of HMFC and the
Depositor, a certificate executed by a secretary or assistant secretary thereof
to which shall be attached certified copies of the: (i) charter, (ii) by-laws,
(iii) applicable resolutions and (iv) designation of incumbency of each such
entity.
(t) The Representative shall have received evidence of any required Lien
releases to be filed or recorded (immediately following the Closing-Date) with
respect to the Permitted Liens affecting the Receivables from all applicable
creditors of HMFC, in form and substance satisfactory to the Representative and
counsel to the Underwriters.
(u) All representations and warranties made by or on behalf of HMFC and the
Depositor in the Transaction Documents to which each is a party are true and
correct as of the Closing Date.
The Depositor will provide or cause to be provided to the Representative
conformed copies of such opinions, certificates, letters and documents as the
Representative or counsel to the Underwriters reasonably request.
SECTION 8. Termination. This Agreement shall be subject to termination in
the sole discretion of the Representative by notice to the Depositor given on or
prior to the Closing Date in the event that either the Depositor or HMFC shall
have failed, refused or been unable to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Closing Date, (a) trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited or minimum or maximum prices shall have been established by or on, as
the case may be, the Securities and Exchange Commission or the New York Stock
Exchange; (b) trading of any securities of HMFC or the Depositor shall have been
suspended on any exchange or in any over-
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the-counter market; (c) a general moratorium on commercial banking activities
shall have been declared by either federal or New York State authorities; (d) a
material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States or with respect to Clearstream or
Euroclear systems in Europe; (e) there shall have occurred (i) an outbreak or
escalation of hostilities between the United States and any foreign power, (ii)
an outbreak or escalation of any other insurrection or armed conflict involving
the United States, or (iii) any other calamity or crisis or materially adverse
change in general economic, political or financial conditions having an effect
on the U. S. financial markets that, in the sole judgment of the Representative,
makes it impractical or inadvisable to proceed with the offering or the delivery
of the Notes as contemplated by the Prospectus, as amended as of the date
hereof; (f) any change in or affecting the Receivables or particularly the
business or properties of the Trust, the Depositor or HMFC shall have occurred
which, in the judgment of the Representative, materially impairs the investment
quality of the Notes or makes it impractical or inadvisable to market the Notes;
or (g) any downgrading in the rating of any debt securities of HMFC, the
Depositor, if any, by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities Act),
or any public announcement that any such organization has under surveillance or
review its rating of any such debt securities (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating) shall have occurred. Termination of this Agreement
pursuant to this Section 8 shall be without liability of any party to any other
party except for the liability of HMFC in relation to expenses as provided in
Sections 6 hereof, the indemnity provided in Section 9 hereof and any liability
arising before or in relation to such termination.
SECTION 9. Indemnification and Contribution.
(a) The Depositor and HMFC shall, jointly and severally, indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which such Underwriter or such controlling person may become subject under the
Securities Act or otherwise, to the extent such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Depositor or HMFC in Section 2 hereof,
(ii) any untrue statement or alleged untrue statement of any material
fact contained or incorporated in the Registration Statement, the
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or
(iii) the omission or alleged omission to state in the Registration
Statement, the Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto a material fact required to be stated therein or
necessary to make the statements therein, not misleading,
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and will reimburse, as incurred, each such indemnified party for any legal or
other costs or expenses reasonably incurred by it in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that the Depositor and HMFC will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, the Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto in connection with the
Underwriters' Information; provided, further, that the Depositor and HMFC shall
not be liable to any Underwriter or any of the directors, officers, employees
and agents of an Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act with respect to any loss, claim, damage or liability that
results from the fact that the Underwriter sold Notes to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale, if
delivery thereof was required, a copy of the Prospectus or the Prospectus as
then amended or supplemented, whichever is most recent, if the Depositor has
previously furnished copies thereof to such Underwriter. The indemnity provided
for in this Section 9 shall be in addition to any liability which the Depositor
and HMFC may otherwise have. The Depositor and HMFC will not, without the prior
written consent of the Representative, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not the Representative or any person who controls the Representative is a
party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent (i) includes an unconditional release of all of the
Underwriters and such controlling persons from all liability arising out of such
claim, action, suit or proceeding and (ii) does not include a statement as to or
admission of, fault, culpability or a failure to act by or on behalf of any
Underwriter or controlling person.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless each of the Depositor and HMFC, each of its directors and officers and
each person, if any, who controls the Depositor or HMFC within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
losses, claims, damages or liabilities to which the Depositor, HMFC or any such
director, officer or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Preliminary Prospectus or the Prospectus Supplement (or any amendment or
supplement thereto) or (ii) the omission or the alleged omission to state in the
Preliminary Prospectus or the Prospectus Supplement (or any amendment or
supplement thereto) 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
the Underwriters' Information, and will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Depositor, HMFC or any such director,
officer or controlling person in connection with investigating, defending
against or appearing as a thirdparty witness in connection with any such loss,
claim, damage, liability or any action in respect thereof. The remedies provided
for in this Section 9 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
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(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to paragraph (a) or (b) of this Section 9, such person (for purposes of
this paragraph (c), the "indemnified party") shall, promptly after receipt by
such party of notice of the commencement of such action, notify the person
against whom such indemnity may be sought (for purposes of this paragraph (c),
the "indemnifying party"), but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party under this Section 9. 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 reasonably satisfactory to
such indemnified party (which may be counsel to such indemnifying party if
otherwise reasonably acceptable to the indemnified party); provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense of any such action and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 9 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel in each applicable local jurisdiction) in any one
action or separate but substantially similar actions arising out of the same
general allegations or circumstances, designated in writing by the
Representative in the case of paragraph (a) of this Section 9, representing the
indemnified parties under such paragraph (a) who are parties to such action or
actions), (ii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party, or (iii) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest. All fees and
expenses reimbursed pursuant to this paragraph (c) shall be reimbursed as they
are incurred. After such notice from the indemnifying party to such indemnified
party, the indemnifying party will not be liable for the costs and expenses of
any settlement of such action effected by such indemnified party without the
consent of the indemnifying party. No indemnifying party shall, without the
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnification could have been sought hereunder by such
indemnified party, unless such settlement (x) includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
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(d) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 9 is unavailable or insufficient, for any
reason, to hold harmless an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof), each indemnifying party,
in order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of Notes or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, not only such relative
benefits but also the relative fault of the indemnifying party or parties on the
one hand and the indemnified party on the other in connection with the
statements or omissions or alleged statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Depositor and HMFC on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total proceeds from the
offering of the Notes (before deducting expenses) received by the Depositor and
HMFC (including for such purpose, the value of the Certificates) bear to the
total discounts and commissions received by the Underwriters (the "Spread") as
set forth in the Prospectus. The relative fault of the parties 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 Depositor, HMFC or the
Underwriters, the parties' relative intents, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Depositor, HMFC
and the Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to above in this paragraph (d). Notwithstanding any other provision of
this paragraph (d), no Underwriter shall be obligated to make contributions
hereunder that in the aggregate exceed the amount by which the Spread received
by it in the initial offering of such Notes, less the aggregate amount of any
damages that such Underwriter has otherwise been required to pay in respect of
the same or any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
hereunder are several in proportion to their respective principal amount of
Securities they have purchased hereunder, and not joint. For purposes of this
paragraph (d), each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each director of the
Depositor and HMFC, each officer of the Depositor and HMFC and each person, if
any, who controls the Depositor and HMFC within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Depositor and HMFC.
SECTION 10. Defaults by an Underwriter. If any one or more Underwriter(s)
fail(s) to purchase and pay for any of the Notes agreed to be purchased by such
Underwriter(s) hereunder, and such failure constitutes a default in the
performance of its or their obligations under this
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Agreement, the remaining Underwriter(s) shall be obligated severally to take up
and pay for (in the respective proportions that the amount of Notes set forth
opposite their names in Schedule I bears to the aggregate amount of Notes set
forth opposite the names of all the remaining Underwriter(s)) the Notes that the
defaulting Underwriter(s) agreed but failed to purchase; provided, however, that
if the aggregate amount of Notes that the defaulting Underwriter(s) agreed but
failed to purchase exceeds 10% of the aggregate principal amount of Notes, the
remaining Underwriter(s) shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Notes, and if such non-defaulting
Underwriter(s) do not purchase all the Notes, this Agreement will terminate
without liability to any non-defaulting Underwriter. In the event of a default
by any Underwriter as set forth in this paragraph, the Closing Date shall be
postponed for such period, not exceeding seven days, as the remaining
Underwriter(s) shall determine in order that the required changes in the
Prospectus Supplement or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter(s)
of any liability to the Depositor, HMFC, their Affiliates and any non-defaulting
Underwriter(s) for damages occasioned by its default hereunder.
SECTION 11. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements set
forth in or made pursuant to this Agreement or contained in certificates of
officers submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation or statement as to the results thereof,
and will survive delivery of and payment for the Notes. If for any reason the
purchase of the Notes by the Underwriters is not consummated, each of the
Depositor and HMFC shall remain responsible for the expenses to be paid or
reimbursed pursuant to Section 6 and the obligations pursuant to Section 9 shall
remain in effect. If for any reason the purchase of the Notes by the
Underwriters is not consummated (other than as a result of any Underwriters'
breach under Section 4 of this Agreement), the Depositor and HMFC will reimburse
the Underwriters severally, upon demand, for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) incurred by any
Underwriter in connection with the offering of the Notes.
SECTION 12. Notices. Any notice or notification in any form to be given
under this Agreement may be delivered in person or sent by mail, facsimile or
telephone (subject in the case of a communication by telephone to confirmation
by facsimile) addressed to:
in the case of the Depositor:
Hyundai ABS Funding Corporation
10550 Talbert Avenue
Fountain Valley, California 92708
Facsimile: 714-965-7098
Attention: Vice President; Secretary
in the case of HMFC:
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Hyundai Motor Finance Company
10550 Talbert Avenue
Fountain Valley, California 92708
Facsimile 714-965-7098
Attention: Vice President; Finance
in the case of the Representative:
Banc One Capital Markets, Inc.
1 Bank One Plaza
Mail Suite IL 1-0596
Chicago, Illinois 60670
Facsimile: 312-732-4487
Attention: Robert Coats
Any such notice shall take effect, in the case of delivery, at the time of
delivery and, in the case of facsimile, at the time of dispatch.
SECTION 13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors and agents, and the
directors, officers and control persons referred to in Section 9, and no other
person will have any rights or obligations hereunder.
SECTION 14. The Representative. The Representative represents and warrants
to the Depositor and HMFC that it is duly authorized to enter into this
Agreement. The Representative shall 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. In all dealings
hereunder, the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by the Representative.
SECTION 15. Miscellaneous.
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect, the meaning or interpretation of
this Agreement.
(c) For purposes of this Agreement, (a) "business day" means any day on
which the New York Stock Exchange is open for trading, and (b) "subsidiary" has
the meaning set forth in Rule 405 under the Securities Act.
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(d) This Agreement may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same Agreement and any party
may enter into this Agreement by executing a counterpart.
(e) This Agreement shall inure to the benefit of and shall be binding upon
the several Underwriters, the Depositor, HMFC and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained, this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person, except that (i) the indemnities
of the Depositor and HMFC contained in Section 9 hereof shall also be for the
benefit of any person or persons who control any Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act and (ii)
the indemnities of the Underwriters contained in Section 9 hereof shall also be
for the benefit of the directors of the Depositor and HMFC, the officers of the
Depositor and HMFC and any person or persons who control the Depositor or HMFC
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act. No purchaser of Notes from any Underwriter shall be deemed a
successor because of such purchase.
(f) The respective representations, warranties, agreements, covenants,
indemnities and other statements of the Depositor and HMFC, its officers and the
several Underwriters set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the
Depositor or HMFC, any of its officers, directors, employees or agents, any
Underwriter or any controlling person referred to in Section 9 hereof and (ii)
delivery of and payment for the Notes. The respective agreements, covenants,
indemnities and other statements set forth in Sections 5 and 9 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
SECTION 16. Severability. It is the desire and intent of the parties that
the provisions of this Agreement be enforced to the fullest extent permissible
under the law and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, in the event that any provision of this
Agreement would be held in any jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 17. Governing Law. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
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If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Depositor
and HMFC.
Very truly yours,
HYUNDAI ABS FUNDING CORPORATION
By: /s/ David A. Hoeller
---------------------------------
Name: David A. Hoeller
Title: Vice President & Secretary
HYUNDAI MOTOR FINANCE COMPANY
By: /s/ K.B. Lee
---------------------------------
Name: K.B. Lee
Title: Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
BANC ONE CAPITAL MARKETS, INC.
on behalf of itself and as Representative of the
several Underwriters
By: /s/ Jeffrey J. Orr
------------------------
Name: Jeffrey J. Orr
Title: Managing Director
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SCHEDULE I
Class A-1 Class A-2 Class A-3 Class A-4
Underwriter Notes Notes Notes Notes
- ----------------------------------- ------------ ------------ ------------ ------------
Banc One Capital Markets, Inc...... $ 47,175,000 $ 66,877,500 $ 36,075,000 $ 33,471,495
Citigroup Global Markets Inc....... $ 47,175,000 $ 66,877,500 $ 36,075,000 $ 33,471,495
ABN AMRO Incorporated.............. $ 44,200,000 $ 62,660,000 $ 33,800,000 $ 31,360,680
Deutsche Bank Securities Inc....... $ 15,725,000 $ 22,292,500 $ 12,025,000 $ 11,157,165
SG Cowen Securities Corporation.... $ 15,725,000 $ 22,292,500 $ 12,025,000 $ 11,157,165
Total.............................. $170,000,000 $241,000,000 $130,000,000 $120,618,000
Class B Class C Class D
Underwriter Notes Notes Notes
- ----------------------------------- ----------- ----------- -----------
Banc One Capital Markets, Inc. .... $19,517,000 $ 5,855,000 $20,492,500
Citigroup Global Markets Inc. ..... $19,517,000 $ 5,855,000 $20,492,500
ABN AMRO Incorporated ............. $ 0 $ 0 $ 0
Deutsche Bank Securities Inc. ..... $ 0 $ 0 $ 0
SG Cowen Securities Corporation ... $ 0 $ 0 $ 0
Total ............................. $39,034,000 $11,710,000 $40,985,000
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SCHEDULE II
Original Principal
Security Balance $ Price $
- ------------------------ ------------------ ---------------
Class A-1 Notes $170,000,000.00 $170,000,000.00
Class A-2 Notes $241,000,000.00 $240,971,569.23
Class A-3 Notes $130,000,000.00 $129,998,256.70
Class A-4 Notes $120,618,000.00 $120,610,988.48
Class B Notes $ 39,034,000.00 $ 39,027,751.83
Class C Notes $ 11,710,000.00 $ 11,708,891.18
Class D Notes $ 40,985,000.00 $ 40,976,359.95
Total Price to Depositor $753,347,000.00 $751,860,403.72
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SCHEDULE III
LIST OF OFFICES TO FILE FINANCING STATEMENTS
1. HMFC Financing Statements - California
2. Depositor Financing Statements - Delaware
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SCHEDULE IV
LIST OF PERMITTED LIENS
1. Second Amended and Restated Receivables Purchase Agreement, dated as of
July 23, 2002, as amended, among Hyundai BC Funding Corporation, Asset One
Securitization LLC, Sheffield Receivables Corporation, Amsterdam Funding
Corporation, Hyundai Motor Finance Company, Barclays Bank PLC, ABN AMRO
Bank N.V., and Societe Generale.
2. Purchase and Sale Agreement, dated as of January 17, 2000, as amended,
between Hyundai Motor Finance Company, as seller, and Hyundai BC Funding
Corporation, as purchaser.
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