Exhibit 10.2
EXECUTION COPY
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RECEIVABLES PURCHASE AGREEMENT
between
HYUNDAI MOTOR FINANCE COMPANY,
as Seller,
and
HYUNDAI ABS FUNDING CORPORATION,
as Depositor
Dated as of November 7, 2003
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TABLE OF CONTENTS
ARTICLE I
Certain Definitions
ARTICLE II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables......................................2
Section 2.02. The Closing....................................................4
ARTICLE III
Representations and Warranties
Section 3.01. Representations and Warranties of Depositor....................4
Section 3.02. Representations and Warranties of Seller.......................5
ARTICLE IV
Conditions
Section 4.01. Conditions to Obligation of the Depositor.....................14
Section 4.02. Conditions to Obligation of the Seller........................15
ARTICLE V
Covenants of the Seller
Section 5.01. Protection of Right, Title and Interest.......................15
Section 5.02. Other Liens or Interests......................................16
Section 5.03. Costs and Expenses............................................16
Section 5.04. Hold Harmless.................................................16
ARTICLE VI
Indemnification
Section 6.01. Indemnification...............................................16
ARTICLE VII
Miscellaneous Provisions
Section 7.01. Obligations of Seller.........................................17
Section 7.02. Repurchase Events.............................................17
Section 7.03. Depositor Assignment of Repurchased Receivables...............17
Section 7.04. Transfer to the Issuer........................................17
Section 7.05. Amendment.....................................................17
Section 7.06. Waivers.......................................................18
Section 7.07. Notices.......................................................18
Section 7.08. Costs and Expenses............................................18
Section 7.09. Representations of the Seller and the Depositor...............18
Section 7.10. Confidential Information......................................19
Section 7.11. Headings and Cross-References.................................19
Section 7.12. GOVERNING LAW.................................................19
Section 7.13. Counterparts..................................................19
Section 7.14. Third Party Beneficiary.......................................19
Section 7.15. No Proceedings................................................19
Section 7.16. Nonpetition Covenant..........................................19
EXHIBIT A Subordinated Promissory Note.............................. A-1
SCHEDULE I Schedule of Receivables................................... I-1
SCHEDULE II Receivable File Schedule.................................. II-1
SCHEDULE III Reconveyance Documents.................................... III-1
SCHEDULE IV Conduit Documents......................................... IV-1
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RECEIVABLES PURCHASE AGREEMENT dated as of November 7, 2003 between HYUNDAI
MOTOR FINANCE COMPANY, a California corporation, as seller (the "Seller"), and
HYUNDAI ABS FUNDING CORPORATION, a Delaware corporation, as depositor (the
"Depositor").
RECITALS
WHEREAS, in the regular course of its business, the Seller has purchased
certain motor vehicle retail installment sale contracts secured by new and used
automobiles, light-duty trucks, vans and minivans from motor vehicle dealers;
WHEREAS, the Seller and the Depositor wish to set forth the terms pursuant
to which such contracts are to be sold by the Seller to the Depositor; and
WHEREAS, the Depositor intends, concurrently with its purchases from time
to time hereunder, to convey all of its right, title and interest in and to
$815,463,348.54 of such contracts to Hyundai Auto Receivables Trust 2003-A (the
"Issuer") pursuant to a Sale and Servicing Agreement dated as of November 7,
2003 (the "Sale and Servicing Agreement"), by and among the Issuer, the
Depositor, the Seller, Hyundai Motor Finance Company, as Servicer and Wells
Fargo Bank Minnesota, National Association, as Indenture Trustee, and the Issuer
intends to pledge all of its right, title and interest in such contracts to the
Indenture Trustee pursuant to the Indenture.
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
ARTICLE I
Certain Definitions
Terms not defined in this Agreement shall have the meanings assigned
thereto in the Sale and Servicing Agreement or the Indenture. As used in this
Agreement, the following terms shall, unless the context otherwise requires,
have the following meanings (such meanings to be equally applicable to the
singular and plural forms of the terms defined):
"Agreement" shall mean this Receivables Purchase Agreement, as the same may
be amended and supplemented from time to time.
"Closing Date" shall mean November 7, 2003.
"Conduit Documents" shall mean the documents listed on Schedule IV hereto.
"Depositor" shall mean Hyundai ABS Funding Corporation, a Delaware
corporation, its successors and assigns.
"Indemnified Losses" shall have the meaning specified in Section 6.01.
"Indemnified Party" shall have the meaning specified in Section 6.01.
"Lien Certificate" means with respect to a Financed Vehicle, an original
certificate of title, certificate of lien or other notification issued by the
Registrar of Titles of the applicable state to a secured party which indicates
that the lien of the secured party on the Financed Vehicle is recorded on the
original certificate of title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the term "Lien
Certificate" shall mean only a certificate or notification issued to a secured
party.
"Purchase Price" means, with respect to any Receivable, an amount equal to
the Principal Balance of such Receivable as of the Cutoff Date.
"Receivable" shall mean any Contract listed on Schedule I hereto (which
Schedule may be in the form of microfiche).
"Reconveyance Documents" shall mean the documents listed on Schedule III
hereto.
"Registrar of Titles" means with respect to any state, the governmental
agency or body responsible for the registration of, and the issuance of
certificates of title relating to, motor vehicles and liens thereon.
"Repurchase Event" shall have the meaning specified in Section 7.02.
"Sale and Servicing Agreement" shall have the meaning set forth in the
recitals.
"Schedule of Receivables" shall mean the list of Receivables annexed hereto
as Schedule I.
"Seller" shall mean Hyundai Motor Finance Company, a California
corporation, its successors and assigns.
"Subordinated Promissory Note" shall have the meaning specified in Section
2.01(a).
"Transfer Date" shall mean the Closing Date.
"Transfer Tax" shall have the meaning specified in Section 3.02(b)(xlvii).
"Underwriting Agreement" means the Underwriting Agreement dated October 29,
2003, relating to Hyundai Auto Receivables Trust 2003-A among the Depositor,
HMFC and Banc One Capital Markets, Inc., on behalf of itself and as
Representative of the Several Underwriters.
ARTICLE II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables.
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(a) In consideration of the Depositor's delivery to or upon the order of
the Seller on the Closing Date of $746,005,376.15 and a subordinated revolving
credit note of the Depositor in the form of Exhibit A attached hereto (the
"Subordinated Promissory Note") in a principal amount equal to $69,457,972.39,
the Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Depositor, without recourse (subject to the obligations of the Seller
herein) all right, title, and interest of the Seller in and to:
(i) the Receivables and all moneys received thereon on or after the
Cutoff Date;
(ii) the security interests in the Financed Vehicles and any
accessions thereto granted by Obligors pursuant to the Receivables and any
other interest of the Seller in such Financed Vehicles;
(iii) any Liquidation Proceeds and any other proceeds with respect to
the Receivables from claims on any physical damage, credit life or
disability insurance policies covering Financed Vehicles or Obligors,
including any vendor's single interest or other collateral protection
insurance policy;
(iv) any property that shall have secured any Receivable and that
shall have been acquired by or on behalf of the Seller;
(v) all documents and other items contained in the Receivable Files;
(vi) all proceeds from any Receivable repurchased by a Dealer pursuant
to a Dealer Agreement; and
(vii) the proceeds of any and all of the foregoing.
The Depositor shall make payment in respect of the Purchase Price upon demand by
the Seller.
(b) The outstanding principal amount of the Subordinated Promissory Note
shall bear interest at a rate per annum equal to the prime rate as published on
such day (or, if not then published, on the most recently preceding day) in The
Wall Street Journal as the "Prime Rate." Changes in the rate payable hereunder
shall be effective on each day on which a change in the Prime Rate is published.
On each Payment Date, the Depositor shall repay the accrued interest on, and
principal amount of, the Subordinated Promissory Note as and to the extent of
any amounts received by the Depositor from proceeds of collections of
Receivables, subject, however, to the prior right of the Issuer to receive
payments out of the collections pursuant to this Agreement.
(c) [Reserved]
(d) The Seller and the Depositor intend that the transfer of assets by the
Seller to the Depositor pursuant to this Agreement be a sale of the ownership
interest in such assets to the Depositor, rather than the mere granting of a
security interest to secure a borrowing. In the
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event, however, that such transfer is deemed not to be a sale but to be of a
mere security interest to secure a borrowing or such transfer is otherwise not
effective to sell the Receivables and other property described in Section
2.01(a) hereof, the Seller shall be deemed to have hereby granted to the
Depositor a perfected first priority security interest in all such assets, and
this Agreement shall constitute a security agreement under applicable law.
Pursuant to the Sale and Servicing Agreement and Section 7.04 hereof, the
Depositor may sell, transfer and assign to the Issuer (i) all or any portion of
the assets assigned to the Depositor hereunder, (ii) all or any portion of the
Depositor's rights against the Seller under this Agreement and (iii) all
proceeds thereof. Such assignment may be made by the Depositor with or without
an assignment by the Depositor of its rights under this Agreement, and without
further notice to or acknowledgement from the Seller. The Seller waives, to the
extent permitted under applicable law, all claims, causes of action and
remedies, whether legal or equitable (including any right of setoff), against
the Depositor or any assignee of the Depositor relating to such action by the
Depositor in connection with the transactions contemplated by the Sale and
Servicing Agreement.
Section 2.02. The Closing. The sale and purchase of the Receivables shall
take place at a closing at the offices of Latham & Watkins LLP, 885 Third
Avenue, Suite 1000, New York, New York 10022, on the Closing Date,
simultaneously with the closing under (a) the Sale and Servicing Agreement, (b)
the Indenture and (c) the Trust Agreement.
ARTICLE III
Representations and Warranties
Section 3.01. Representations and Warranties of Depositor. The Depositor
hereby represents and warrants as follows to the Seller and the Indenture
Trustee as of the date hereof and the Transfer Date:
(a) Organization and Good Standing. The Depositor has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with the corporate power and authority
to own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, including the
corporate power, authority and legal right to acquire and sell the
Receivables.
(b) Power and Authority. The Depositor has the power and authority to
execute and deliver this Agreement and to carry out its terms; and the
execution, delivery and performance of this Agreement have been duly
authorized by the Depositor by all necessary corporate action.
(c) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default
under, the charter or bylaws of the Depositor, or any indenture, agreement
or other instrument to which the Depositor is a party or by which it is
bound.
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Section 3.02. Representations and Warranties of Seller.
(a) The Seller hereby represents and warrants as follows to the Depositor
and the Indenture Trustee as of the date hereof and as of the Transfer Date:
(i) Organization and Good Standing. The Seller has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of California, with the corporate power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(ii) Due Qualification. The Seller is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(iii) Power and Authority. The Seller has the power and authority to
execute and deliver this Agreement and the other Basic Documents to which
it is a party and to carry out their respective terms; the Seller had at
all relevant times, and has, full power, authority and legal right to sell,
transfer and assign the property sold, transferred and assigned to the
Depositor hereby and has duly authorized such sale, transfer and assignment
to the Depositor by all necessary corporate action; and the execution,
delivery and performance of this Agreement and the other Basic Documents to
which the Seller is a party have been duly authorized by the Seller by all
necessary corporate action.
(iv) No Violation. The consummation of the transactions contemplated
by this Agreement and the other Basic Documents to which the Seller is a
party and the fulfillment of their respective terms do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, the
articles of incorporation or bylaws of the Seller, or any indenture,
agreement or other instrument to which the Seller is a party or by which it
is bound, or result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than this Agreement), or violate any law or, to the
best of the Seller's knowledge, any order, rule or regulation applicable to
the Seller of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or its properties.
(v) No Proceedings. There are no proceedings or investigations pending
or, to the Seller's knowledge, threatened against the Seller before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties (i)
asserting the invalidity of this Agreement or any other Basic Document to
which the Seller is a party, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or any other Basic
Document to which the Seller is a party or (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability of, this
Agreement or any other Basic Document to which the Seller is a party.
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(vi) Valid Sale, Binding Obligation. This Agreement and the other
Basic Documents to which the Seller is a party, when duly executed and
delivered by the other parties hereto and thereto, shall constitute legal,
valid and binding obligations of the Seller, enforceable against the Seller
in accordance with their respective terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization and
similar laws now or hereafter in effect relating to or affecting creditors'
rights generally and to general principles of equity (whether applied in a
proceeding at law or in equity).
(vii) Chief Executive Office. The chief executive office of the Seller
is located at 10550 Talbert Avenue, Fountain Valley, California 92708.
(viii) No Consents. The Seller is not required to obtain the consent
of any other party or any consent, license, approval, registration,
authorization, or declaration of or with any governmental authority, bureau
or agency in connection with the execution, delivery, performance,
validity, or enforceability of this Agreement or any other Basic Document
to which it is a party that has not already been obtained.
(ix) Seller Information. No certificate of an officer, statement or
document furnished in writing or report delivered pursuant to the terms
hereof by the Seller contains any untrue statement of a material fact or
omits to state any material fact necessary to make the certificate,
statement, document or report not misleading.
(x) Ordinary Course. The transactions contemplated by this Agreement
and the other Basic Documents to which the Seller is a party are in the
ordinary course of the Seller's business.
(xi) Solvency. The Seller is not insolvent, nor will the Seller be
made insolvent by the transfer of the Receivables, nor does the Seller
contemplate any pending insolvency.
(xii) Legal Compliance. The Seller is not in violation of, and the
execution and delivery of this Agreement and the other Basic Documents to
which the Seller is a party by it and its performance and compliance with
the terms of this Agreement and the other Basic Documents to which the
Seller is a party will not constitute a violation with respect to, any
order or decree of any court or any order or regulation of any federal,
state, municipal or governmental agency having jurisdiction, which
violation would materially and adversely affect the Seller's condition
(financial or otherwise) or operations or any of the Seller's properties or
materially and adversely affect the performance of any of its duties under
the Basic Documents.
(xiii) Creditors. The Seller represents and warrants that it did not
sell the Receivables to the Depositor with any intent to hinder, delay or
defraud any of its creditors.
(xiv) No Notice. The Seller represents and warrants that it acquired
title to the Receivables in good faith, without notice of any adverse
claim.
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(xv) Bulk Transfer. The Seller represents and warrants that the
transfer, assignment and conveyance of the Receivables by the Seller
pursuant to this Agreement are not subject to the bulk transfer laws or any
similar statutory provisions in effect in any applicable jurisdiction.
(b) The Seller makes the following representations and warranties with
respect to the Receivables, on which the Depositor relies in accepting the
Receivables and in transferring the Receivables to the Issuer under the Sale and
Servicing Agreement, and on which the Issuer relies in pledging the same to the
Indenture Trustee. Such representations and warranties speak as of the execution
and delivery of this Agreement as of the Closing Date, but shall survive the
sale, transfer and assignment of the Receivables to the Depositor, the
subsequent sale, transfer and assignment of the Receivables by the Depositor to
the Issuer pursuant to the Sale and Servicing Agreement and the pledge of the
Receivables by the Issuer to the Indenture Trustee pursuant to the Indenture.
(i) Characteristics of Receivables. Each Receivable (A) was originated
in the United States of America by a Dealer located in the United States of
America for the retail sale of a Financed Vehicle in the ordinary course of
such Dealer's business in accordance with the Seller's Credit and
Collection Policy as of the date of origination of the related Receivable,
is payable in United States dollars, has been fully and properly executed
by the parties thereto, has been purchased by the Seller from such Dealer
under an existing Dealer Agreement and has been validly assigned by such
Dealer to the Seller, (B) has created or shall create a valid, subsisting
and enforceable first priority security interest in favor of the Seller in
the Financed Vehicle, which security interest is assignable by the Seller
to the Depositor, and by the Depositor to the Issuer, (C) contains
customary and enforceable provisions such that the rights and remedies of
the holder thereof are adequate for realization against the collateral of
the benefits of the security, (D) provides for fixed level monthly payments
(provided that the payment in the last month of the term of the Receivable
may be insignificantly different from the level payments) that fully
amortize the Amount Financed by maturity and yield interest at the APR and
(E) amortizes using the simple interest method.
(ii) Compliance with Law. Each Receivable and the sale of the related
Financed Vehicle complied at the time it was originated or made, and at the
time of execution of this Agreement complies, in all material respects with
all requirements of applicable federal, state and local laws, rulings and
regulations thereunder, including usury laws, the Federal Truth-in-Lending
Act, the Equal Credit Opportunity Act, the Fair Credit Billing Act, the
Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the
Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the Federal
Reserve Board's Regulations "B" and "Z", the Soldiers' and Sailors' Civil
Relief Act of 1940, the Gramm-Leach-Bliley Act, the Texas Consumer Credit
Code and state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code, and other consumer credit laws and equal credit
opportunity and disclosure laws; and each Dealer has represented to the
Seller that such Dealer had all necessary licenses and permits to originate
such Receivables.
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(iii) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except (A)
as enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors'
rights generally and by equitable limitations on the availability of
specific remedies, regardless of whether such enforceability is considered
in a proceeding in equity or at law and (B) as such Receivable may be
modified by the application after the Transfer Date of the Soldiers' and
Sailors' Civil Relief Act of 1940, as amended.
(iv) No Government Obligor. No Receivable is due from the United
States of America or any State or any agency, department, subdivision or
instrumentality thereof.
(v) Obligor Bankruptcy. At the Cutoff Date, no Obligor is or has been,
since the origination of the related Receivable, the subject of a
bankruptcy proceeding.
(vi) Schedule of Receivables. The information set forth in Schedule I
to this Agreement is true and correct in all material respects as of the
close of business on the Cutoff Date.
(vii) Marking Records. By the Transfer Date, the Seller will have
caused its computer and accounting records relating to each Receivable to
be clearly and unambiguously marked to show that the Receivables have been
sold to the Depositor by the Seller and transferred and assigned by the
Depositor to the Issuer in accordance with the terms of the Sale and
Servicing Agreement and pledged by the Issuer to the Indenture Trustee in
accordance with the terms of the Indenture.
(viii) Computer Tape. The computer tape regarding the Receivables made
available by the Seller to the Depositor is complete and accurate in all
respects as of the Transfer Date.
(ix) No Adverse Selection. No selection procedures believed by the
Seller to be adverse to the Noteholders or the Certificateholder were
utilized in selecting the Receivables.
(x) Chattel Paper. Each Receivable constitutes chattel paper within
the meaning of the UCC as in effect in the state of origination.
(xi) One Original. There is only one original executed copy of each
Receivable.
(xii) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released from
the Lien of the related Receivable in whole or in part. None of the terms
of any Receivable has been waived, altered or modified in any respect since
its origination, except by instruments or documents identified in the
related Receivable File. No Receivable has been modified as a result of the
application of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
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(xiii) Lawful Assignment. No Receivable has been originated in, or is
subject to the laws of, any jurisdiction the laws of which would make
unlawful, void or voidable the sale, transfer and assignment of such
Receivable under this Agreement, the Sale and Servicing Agreement or the
pledge of such Receivable under the Indenture.
(xiv) Title. It is the intention of the Seller that the transfers and
assignments herein contemplated constitute sales of the Receivables from
the Seller to the Depositor and that the beneficial interest in and title
to the Receivables not be part of the debtor's estate in the event of the
filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Receivable, other than the Receivables identified in the
Reconveyance Documents, has been sold, transferred, assigned or pledged by
the Seller to any Person other than to the Depositor or pursuant to this
Agreement (or by the Depositor to any other Person other than to the Issuer
pursuant to the Sale and Servicing Agreement). Except with respect to the
Liens under the Conduit Documents (which such Liens shall be released in
accordance with provisions of the Reconveyance Documents), immediately
prior to the transfers and assignments herein contemplated, the Seller has
good and marketable title to each Receivable free and clear of all Liens,
and, immediately upon the transfer thereof, the Depositor shall have good
and marketable title to each Receivable, free and clear of all Liens and,
immediately upon the transfer thereof from the Depositor to the Issuer
pursuant to the Sale and Servicing Agreement, the Issuer shall have good
and marketable title to each Receivable, free and clear of all Liens and,
immediately upon the pledge thereof from the Issuer to the Indenture
Trustee pursuant to the Indenture, the Indenture Trustee shall have a first
priority perfected security interest in each Receivable.
(xv) Security Interest in Financed Vehicle. Immediately prior to its
sale, assignment and transfer to the Depositor pursuant to this Agreement,
each Receivable shall be secured by a validly perfected first priority
security interest in the related Financed Vehicle in favor of the Seller as
secured party, or all necessary and appropriate actions have been commenced
that will result in the valid perfection of a first priority security
interest in such Financed Vehicle in favor of the Seller as secured party.
The Lien Certificate for each Financed Vehicle shows, or if a new or
replacement Lien Certificate is being applied for with respect to such
Financed Vehicle such Lien Certificate shall be received within 120 days of
the Closing Date and shall show, the Seller named as the original secured
party under each Receivable as the holder of a first priority security
interest in such Financed Vehicle. With respect to each Receivable for
which the Lien Certificate has not yet been returned from the Registrar of
Titles, the Seller has received written evidence that such Lien Certificate
showing the Seller as first lienholder has been applied for. Each Dealer's
security interest in any Receivable originated by such Dealer has been
validly assigned by the Dealer to the Seller. The Seller's security
interest has been validly assigned to the Depositor pursuant to this
Agreement. The Seller has the legal right to repossess or recover by legal
process the Financed Vehicle in its name.
(xvi) All Filings Made. All filings (including UCC filings, except for
UCC releases required to be filed in accordance with the Reconveyance
Documents) required to be made in any jurisdiction to give the Issuer a
first perfected ownership interest in the
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Receivables and the Indenture Trustee a first priority perfected security
interest in the Receivables have been made.
(xvii) No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim, dispute or defense, including the defense
of usury, whether arising out of transactions concerning the Receivable or
otherwise, and the operation of any terms of the Receivable or the exercise
by the Seller or the Obligor of any right under the Receivable will not
render the Receivable unenforceable in whole or in part, and no such right
of rescission, setoff, counterclaim, dispute or defense, including the
defense of usury, has been asserted with respect thereto.
(xviii) No Default. There has been no default, breach, violation or
event permitting acceleration under the terms of any Receivable (other than
payment delinquencies of not more than 30 days), and no condition exists or
event has occurred and is continuing that with notice, the lapse of time or
both would constitute a default, breach, violation or event permitting
acceleration under the terms of any Receivable, and there has been no
waiver of any of the foregoing.
(xix) Insurance. The Seller, in accordance with its customary
procedures, has determined that the Obligor has obtained physical damage
insurance covering each Financed Vehicle and, under the terms of the
related Receivable, the Obligor is required to maintain such insurance and
to name the Seller as a loss payee.
(xx) Final Scheduled Maturity Date. No Receivable has a final
scheduled payment date after October 11, 2009.
(xxi) Certain Characteristics of the Receivables. As of the applicable
Cutoff Date, (A) each Receivable had an original maturity of not less than
12 or more than 72 months and (B) no Receivable was more than 5 days past
due as of the Cutoff Date.
(xxii) No Foreign Obligor. All of the Receivables are due from
Obligors who are citizens, or legal resident aliens, of the United States
of America.
(xxiii) No Extensions. The number or timing of scheduled payments has
not been changed on any Receivable on or before the Closing Date, as
applicable, except as reflected on the computer tape delivered in
connection with the sale of the Receivables.
(xxiv) Scheduled Payments. Each Obligor has been instructed to make
all scheduled payments to the Post Office Boxes. To the best knowledge of
the Seller, each Obligor has paid the entire down payment called for by the
contract.
(xxv) Dealer Agreements. The representations and warranties of the
Dealer in the Dealer Agreement with respect to each Receivable purchased by
the Seller pursuant to such Dealer Agreement were true and correct in all
material respects as of the date the Seller acquired such Receivable from
that Dealer.
(xxvi) No Fleet Sales. No Receivable has been included in a "fleet"
sale (i.e., a sale to any single Obligor of more than five Financed
Vehicles).
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(xxvii) Receivable Files Complete. There exists a Receivable File
pertaining to each Receivable and such Receivable File contains, without
limitation, (A) a fully executed original of the Receivable, (B) a
certificate of insurance, application form for insurance signed by the
Obligor, or a signed representation letter from the Obligor named in the
Receivable pursuant to which the Obligor has agreed to obtain physical
damage insurance for the related Financed Vehicle, (C) the original Lien
Certificate or application therefor together with an assignment of the Lien
Certificate executed by such Dealer to the Seller, (D) an original credit
application signed by the Obligor and (E) the other documents that are set
forth on Schedule II hereto. Each of such documents which is required to be
signed by the Obligor has been signed by the Obligor in the appropriate
spaces. All blanks on any form described in clauses (A), (B), (C), (D) and
(E) above have been properly filled in and each form has otherwise been
correctly prepared. Notwithstanding the above, the complete Receivable File
for each Receivable, (x) shall fulfill the documentation requirements of
the Seller's Credit and Collection Policy as in effect on the date of
origination of such Receivable and (y) is in possession of the Servicer on
the Transfer Date. The blanket power of attorney granted to the Indenture
Trustee and the original Lien Certificate are the only documents necessary
to permit the Indenture Trustee to submit the Lien Certificate for each
Financed Vehicle for retitling in the name of the Indenture Trustee as
secured party in the event such retitling were required or otherwise
permitted under the Basic Documents.
(xxviii) No Fraud or Misrepresentation. Each Receivable was originated
by a Dealer and was sold by the Dealer to the Seller, to the best of the
Seller's knowledge, without fraud or misrepresentation on the part of such
Dealer in either case.
(xxix) Receivables Not Assumable. No Receivable is assumable by
another person in a manner which would release the Obligor thereof from
such Obligor's obligations to the Seller with respect to such Receivable.
(xxx) No Impairment. The Seller has not done anything to convey any
right to any person that would result in such person having a right to
payments due under a Receivable or otherwise to impair the rights of the
Depositor in any Receivable or the proceeds thereof.
(xxxi) Tax Liens. There is no Lien against any Financed Vehicle for
delinquent taxes.
(xxxii) No Corporate Obligor. All of the Receivables are due from
Obligors who are natural persons.
(xxxiii) No Liens. No Liens or claims have been filed for work, labor,
or materials relating to a Financed Vehicle that are prior to, or equal or
coordinate with, the security interest in the Financed Vehicle granted by
the related Receivable.
(xxxiv) Servicing. Each Receivable has been serviced in conformity
with all applicable laws, rules and regulation and in conformity with the
Seller's policies and procedures which are consistent with customary,
prudent industry standards.
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(xxxv) APR. No Receivable has an APR of less than 0.00% and the
weighted average coupon on the pool of Receivables is at least 7.296%.
(xxxvi) Remaining Term. Each Receivable has a remaining term of at
least 3 months and no more than 72 months.
(xxxvii) Original Term. The weighted average original term for the
Receivables is at least 62.3 months.
(xxxviii) Remaining Balance. Each Receivable has a remaining balance
of at least $2,013.03 and not greater than $38,824.90.
(xxxix) New Vehicles. At least 95.36% of the aggregate principal
balance of the Receivables is secured by Financed Vehicles which were new
at the date of origination.
(xl) No Advances. No advances have been made to Obligors in order to
meet any representation and warranties herein set forth.
(xli) No Repossessions. No Financed Vehicle has been repossessed on or
prior to the applicable Transfer Date.
(xlii) No Omissions. There have been no material omissions or
misstatements in any document provided or statement made to the Depositor
concerning the Receivables by or on behalf of the Seller in connection with
the transactions contemplated by this Agreement.
(xliii) No Proceedings Pending. As of the Cutoff Date, there are no
proceedings pending, or to the best of the Seller's knowledge, threatened,
wherein the Obligor or any governmental agency has alleged that any
Receivable is illegal or unenforceable.
(xliv) Dealer Agreements. Each Dealer from whom the Seller purchases
Receivables has entered into a Dealer Agreement with the Seller providing
for the sale of Receivables from time to time by such Dealer to the Seller.
(xlv) Receivable Obligations. The Seller has duly fulfilled all
obligations to be fulfilled on its part under or in connection with the
origination, acquisition and assignment of the Receivables. To the best of
the Seller's knowledge, no notice to or consent from any Obligor is
necessary to effect the acquisition of the Receivables by the Indenture
Trustee.
(xlvi) Taxes. The sale, transfer, assignment and conveyance of the
Receivables by the Seller pursuant to this Agreement is not subject to and
will not result in any tax, fee or governmental charge payable by the
Seller, the Issuer or the Indenture Trustee to any federal, state or local
government ("Transfer Taxes") other than Transfer Taxes which have or will
be paid by the Seller as due. In the event the Issuer or the Indenture
Trustee receives actual notice of any Transfer Taxes arising out of the
transfer, assignment and conveyance of the Receivables, on written demand
by the Issuer or the Indenture Trustee, or upon the Seller's otherwise
being given notice thereof by the Issuer
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or the Indenture Trustee, the Seller shall pay, and otherwise indemnify and
hold the Issuer and the Indenture Trustee harmless, on an after-tax basis,
from and against any and all such Transfer Taxes (it being understood that
the Noteholders, the Indenture Trustee and the Issuer shall have no
obligation to pay such Transfer Taxes).
(xlvii) Computer Tape. The computer tape from which the selection of
the Receivables being acquired on the Closing Date was made available to
the accountants that are providing a comfort letter to the Noteholders in
connection with the numerical information regarding the Receivables and the
Notes.
(xlviii) No Future Disbursement. At the time each Receivable was
acquired from the Dealer, the Amount Financed was fully disbursed. There is
no requirement for future advances of principal thereunder, and, other than
in connection with Dealer participations, all fees and expenses in
connection with the origination of such Receivable have been paid.
(xlix) Physical Damage Insurance Policy. In connection with the
purchase of each Receivable, the Seller required the related Dealer to
furnish evidence that the related Financed Vehicle was covered by a
physical damage insurance policy (i) in an amount at least equal to the
lesser of (a) the actual cash value of the related Financed Vehicle or (b)
the unpaid principal balance owing on such Receivable, (ii) naming the
Seller as a loss payee and (iii) insuring against loss and damage due to
fire, theft, transportation, collision and other risks generally covered by
comprehensive and collision coverage.
(l) Dealer Agreement. The Dealer that sold each Receivable to the
Seller has entered into the Dealer Agreement and such Dealer Agreement,
together with the assignment and related documentation signed by the
Dealer, constitutes the entire agreement between the Seller and the related
Dealer with respect to the sale of such Receivable to the Seller. Each such
Dealer Agreement is in full force and effect and is the legal, valid and
binding obligation of such Dealer; there have been no material defaults by
such Dealer or by the Seller under such Dealer Agreement; the Seller has
fully performed all of its obligations under such Dealer Agreement; the
Seller has not made any statements or representations to such Dealer
(whether written or oral) inconsistent with any term of such Dealer
Agreement; the Purchase Price (as specified in the applicable Dealer
Agreement) for such Receivable has been paid in full by the Seller; there
is no other payment of principal due to such Dealer from the Seller for the
purchase of such Receivable; such Dealer has no right, title or interest in
or to any Receivable; there is no prior course of dealing between such
Dealer and the Seller which will materially and adversely affect the terms
of such Dealer Agreement; and any payment owed to such Dealer by the Seller
is a corporate obligation of the Seller.
(li) Condition of Financed Vehicle. Each Receivable requires the
Obligor to maintain the related Financed Vehicle in good and workable
order.
(lii) Condition of Financed Vehicle as of Transfer Date. To the best
of the Seller's knowledge, each Financed Vehicle was properly delivered to
the related Obligor
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in good repair, without defects and in satisfactory order, and each
Financed Vehicle is in good operating condition and repair as of the
Transfer Date.
(liii) Business of Obligor. To the best of the Seller's knowledge, no
Obligor is a Person involved in the business of leasing or selling
equipment of a type similar to the Financed Vehicles.
(liv) No Consumer Leases. No Receivable constitutes a "consumer lease"
under either (a) the UCC as in effect in the jurisdiction whose law governs
the Receivable or (b) the Consumer Leasing Act, 15 USC 1667.
(lv) Balance as of Cutoff Date. The aggregate principal balance of the
Receivables as of the Cutoff Date is equal to $815,463,348.54.
(lvi) Prepayment or Termination. No Receivable permits early
termination or prepayment unless the amount to be paid by or on behalf of
the Obligor in respect of such prepayment or termination is at all times
equal to or in excess of what the related Purchase Amount would be.
ARTICLE IV
Conditions
Section 4.01. Conditions to Obligation of the Depositor. The obligation of
the Depositor to purchase the Receivables is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct on the
Transfer Date with the same effect as if then made, and the Seller shall
have performed all obligations to be performed by it hereunder on or prior
to the Transfer Date.
(b) Computer Files Marked. The Seller shall, at its own expense, on or
prior to the Transfer Date, indicate in its computer files that the
Receivables have been sold to the Depositor pursuant to this Agreement and
deliver to the Depositor the Schedule of Receivables, certified by the
Seller's President, a Vice President or the Treasurer to be true, correct
and complete.
(c) Documents To Be Delivered by the Seller on the Transfer Date.
(i) Evidence of UCC Filing. On or prior to the Transfer Date, the
Seller shall record and file, at its own expense, a UCC-1 financing
statement, in each jurisdiction in which required by applicable law,
naming the Seller as debtor and naming the Depositor as secured party,
describing the Receivables and the other assets assigned to the
Depositor pursuant to Section 2.01 hereof, meeting the requirements of
the laws of each such jurisdiction and in such manner as is necessary
to perfect the sale, transfer, assignment and conveyance of the
Receivables and such other assets to the Depositor. The Seller shall
deliver to the
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Depositor a file-stamped copy or other evidence satisfactory to the
Depositor of such filing on or prior to the Transfer Date.
(ii) Other Documents. Such other documents as the Depositor may
reasonably request.
(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement to be
consummated on the Transfer Date shall be consummated on such date.
Section 4.02. Conditions to Obligation of the Seller. The obligation of the
Seller to sell the Receivables to the Depositor is subject to the satisfaction
of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Depositor hereunder shall be true and correct on the
Transfer Date with the same effect as if then made, and the Depositor shall
have performed all obligations to be performed by it hereunder on or prior
to the Transfer Date.
(b) Receivables Purchase Price. On the Transfer Date, the Depositor
shall have delivered to the Seller the Purchase Price specified in Section
2.01.
ARTICLE V
Covenants of the Seller
The Seller agrees with the Depositor and the Indenture Trustee as follows:
Section 5.01. Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause, at its own expense, all financing
statements and continuation statements and any other necessary documents (other
than the costs to re-title the Financed Vehicles in order to name a party other
than the Seller as lienholder) covering the right, title and interest of the
Seller, the Depositor, the Trust and the Indenture Trustee, respectively, in and
to the Receivables and the other property included in the Trust Estate to be
promptly filed and at all times to be kept recorded, registered and filed, all
in such manner and in such places as may be required by law fully to preserve
and protect the right, title and interest of the Depositor hereunder, the Trust
under the Sale and Servicing Agreement and the Indenture Trustee under the
Indenture in and to the Receivables and the other property included in the Trust
Estate. The Seller shall deliver to the Depositor and the Indenture Trustee
file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recordation, registration or filing. The Depositor shall cooperate fully with
the Seller in connection with the obligations set forth above and will execute
any and all documents reasonably required to fulfill the intent of this
paragraph.
(b) Name Change. If the Seller makes any change in its name, identity or
corporate structure that would make any financing statement or continuation
statement filed in accordance with paragraph (a) above seriously misleading
within the applicable provisions of the UCC or any title statute, the Seller
shall give the Depositor, the Indenture Trustee and the Owner Trustee
15
written notice thereof at least 45 days prior to such change and shall promptly
file such financing statements or amendments as may be necessary to continue the
perfection of the Depositor's interest in the property conveyed pursuant to
Section 2.01.
Section 5.02. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Basic Documents, the Seller shall not sell,
pledge, assign or transfer to any Person, or grant, create, incur, assume, or
suffer to exist any Lien on, or any interest in, to or under the Receivables,
and the Seller shall defend the right, title and interest of the Depositor, the
Trust and the Indenture Trustee in, to and under the Receivables against all
claims of third parties claiming through or under the Seller.
Section 5.03. Costs and Expenses. The Seller agrees to pay all reasonable
costs and disbursements in connection with the perfection, as against all third
parties, of the Depositor's, the Issuer's and the Indenture Trustee's right,
title and interest in and to the Receivables and the other property included in
the Trust Estate.
Section 5.04. Hold Harmless. Seller shall protect, defend, indemnify and
hold the Depositor and the Issuer and their respective assigns and their
attorneys, accountants, employees, officers and directors harmless from and
against all losses, liabilities, claims, damages and expenses of every kind and
character, as incurred, resulting from or relating to or arising out of (i) the
inaccuracy, nonfulfillment or breach of any representation, warranty, covenant
or agreement made by Seller in this Agreement, (ii) any legal action, including,
without limitation, any counterclaim, that has either been settled by the
litigants (which settlement, if Seller is not a party thereto shall be with the
consent of Seller) or has proceeded to judgment by a court of competent
jurisdiction, in either case to the extent it is based upon alleged facts that,
if true, would constitute a breach of any representation, warranty, covenant or
agreement made by Seller in this Agreement, (iii) any actions or omissions of
Seller or any employee or agent of Seller or any Dealer occurring prior to the
Transfer Date with respect to any of the Receivables or Financed Vehicles or
(iv) any failure of a Receivable to be originated in compliance with all
requirements of law. These indemnity obligations shall be in addition to any
obligation that the Seller may otherwise have.
ARTICLE VI
Indemnification
Section 6.01. Indemnification.
Without limiting any other rights any such Person may have hereunder or
under applicable law, the Seller hereby indemnifies and holds harmless the
Depositor and its officers, directors, agents and employees (each an
"Indemnified Party") from and against any and all damages, losses, claims,
liabilities, penalties, costs and expenses (including reasonable attorneys' fees
and court costs) (all of the foregoing collectively, the "Indemnified Losses")
at any time imposed on or incurred by any Indemnified Party arising out of or
otherwise relating to this Agreement, the transactions contemplated hereby or
the acquisition of any of the Receivables, or any action taken or omitted by any
of the Indemnified Parties, whether arising by reason of the acts to be
performed by the Seller hereunder or otherwise, excluding only Indemnified
Losses to
16
the extent (a) such Indemnified Losses resulted from gross negligence or willful
misconduct of the Indemnified Party seeking indemnification, (b) due to the
financial inability of the Obligor to pay a Receivable and for which
reimbursement would constitute recourse to the Seller for uncollectible
Receivables or (c) such Indemnified Losses include taxes on, or measured by, the
overall net income of the Depositor or any other Indemnified Party.
ARTICLE VII
Miscellaneous Provisions
Section 7.01. Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
Section 7.02. Repurchase Events. The Seller hereby covenants and agrees
with the Depositor for the benefit of the Depositor, the Indenture Trustee, the
Issuer, the Owner Trustee, the Certificateholder and the Noteholders that the
occurrence of a breach of any of the Seller's representations and warranties
contained in Section 3.02(b), without regard to any limitation set forth in such
representation or warranty concerning the knowledge of the Seller as to the
facts stated therein, with respect to any Receivable shall constitute an event
obligating the Seller to repurchase such Receivables if the interests of the
Depositor, the Indenture Trustee, the Owner Trustee, the Issuer and the
Securityholders are materially and adversely affected by such breach (each, a
"Repurchase Event"), at the Purchase Amount, from the Depositor or from the
Issuer, as applicable, unless any such breach shall have been cured by the last
day of the first Collection Period following the discovery or notice thereof by
or to the Seller or the Servicer. The repurchase obligation of the Seller shall
constitute the sole remedy available to the Depositor, the Indenture Trustee,
the Owner Trustee, the Issuer and the Securityholders against the Seller with
respect to any Repurchase Event.
Section 7.03. Depositor Assignment of Repurchased Receivables. With respect
to all Receivables repurchased by the Seller pursuant to this Agreement, the
Depositor shall assign, without recourse, representation or warranty, to the
Seller all of the Depositor's right, title and interest in and to such
Receivables and all security and documents relating thereto.
Section 7.04. Transfer to the Issuer. The Seller acknowledges and agrees
that (1) the Depositor will, pursuant to the Sale and Servicing Agreement,
transfer and assign the Receivables and assign its rights under this Agreement
with respect thereto to the Issuer and, pursuant to the Indenture, the Issuer
will pledge the Receivables to the Indenture Trustee, and (2) the
representations and warranties contained in this Agreement and the rights of the
Depositor under this Agreement, including under Section 7.02, are intended to
benefit the Issuer, the Noteholders and the Certificateholder. The Seller hereby
consents to such transfers and assignments and agrees that enforcement of a
right or remedy hereunder by the Indenture Trustee, the Owner Trustee or the
Issuer shall have the same force and effect as if the right or remedy had been
enforced or executed by the Depositor.
Section 7.05. Amendment. This Agreement may be amended from time to time,
with prior written notice to the Rating Agencies but without the consent of the
Noteholders or the Certificateholder, by a written amendment duly executed and
delivered by the Seller and the
17
Depositor, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of Noteholders or the Certificateholder; provided that such
amendment shall not, as evidenced by an Opinion of Counsel, materially and
adversely affect the interest of any Noteholder or Certificateholder. This
Agreement may also be amended by the Seller and the Depositor, with prior
written notice to the Rating Agencies and the prior written consent of Holders
of Notes evidencing at least a majority of the Outstanding Amount of the Notes
and Holders of Certificates evidencing at least a majority of the Certificate
Balance (excluding, for purposes of this Section 7.05, Certificates held by the
Seller or any of its affiliates), for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders or the
Certificateholder; provided, however, that no such amendment may (i) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that are required to be
made for the benefit of Noteholders or the Certificateholder or (ii) reduce the
aforesaid percentage of the Notes or the Certificates that is required to
consent to any such amendment, without the consent of the Holders of all the
outstanding Notes and Certificates.
Section 7.06. Waivers. No failure or delay on the part of the Depositor,
the Issuer or the Indenture Trustee in exercising any power, right or remedy
under this Agreement or the Bill of Sale shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy preclude
any other or further exercise thereof or the exercise of any other power, right
or remedy.
Section 7.07. Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified mail,
return receipt requested, to: (1) in the case of the Seller, Hyundai Motor
Finance Company, 10550 Talbert Avenue, Fountain Valley, California 92708,
Attention: Vice President, Finance, with a copy to General Counsel; (2) in the
case of the Depositor, Hyundai ABS Funding Corporation, 10550 Talbert Avenue,
Fountain Valley, California 92708, Attention: Vice President and Secretary, with
a copy to General Counsel; (3) in the case of Moody's, Moody's Investors
Service, Inc., ABS Monitoring Department, 99 Church Street, New York, New York
10007; (4) in the case of Standard & Poor's, Standard & Poor's, a division of
The McGraw-Hill Companies, Inc., 55 Water Street (40th Floor), New York, New
York 10041, Attention: Asset Backed Surveillance Department; (5) in the case of
Fitch, Fitch, Inc., One State Street Plaza, New York, New York 10004;or as to
each of the foregoing, at such other address as shall be designated by written
notice to the other parties.
Section 7.08. Costs and Expenses. The Seller shall pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Depositor, in connection with the perfection as against third parties of the
Depositor's, the Issuer's and the Indenture Trustee's right, title and interest
in and to the Receivables and the enforcement of any obligation of the Seller
hereunder.
Section 7.09. Representations of the Seller and the Depositor. The
respective agreements, representations, warranties and other statements by the
Seller and the Depositor set forth in or made pursuant to this Agreement shall
remain in full force and effect and will survive the closing under Section 2.02
and the transfers and assignments referred to in Section 7.04.
18
Section 7.10. Confidential Information. The Depositor agrees that it will
neither use nor disclose to any Person the names and addresses of the Obligors,
except to enforce the Depositor's rights hereunder, under the Receivables, under
the Sale and Servicing Agreement or any other Basic Document, or as required by
any of the foregoing or by law.
Section 7.11. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to section names or numbers are to such Sections of this Agreement.
Section 7.12. GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER OR THEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.13. Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
Section 7.14. Third Party Beneficiary. The Indenture Trustee is an express
third party beneficiary of this Agreement and shall be entitled to enforce the
provisions of this Agreement as if it were a party hereto.
Section 7.15. No Proceedings. So long as this Agreement is in effect, and
for one year plus one day following its termination, the Seller agrees that it
will not file any involuntary petition or otherwise institute any bankruptcy,
reorganization arrangement, insolvency or liquidation proceeding or other
proceedings under any federal or state bankruptcy law or similar law against the
Trust.
Section 7.16. Nonpetition Covenant. Notwithstanding any prior termination
of this Agreement, the Seller shall not, prior to the date that is one year and
one day after the termination of this Agreement with respect to the Depositor,
acquiesce, petition or otherwise invoke or cause the Depositor to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Depositor under any federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Depositor or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Depositor.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date and year
first above written.
HYUNDAI MOTOR FINANCE COMPANY
By: /s/ David A. Hoeller
---------------------------------
Name: David A. Hoeller
Title: Vice President, Finance
HYUNDAI ABS FUNDING CORPORATION
By: /s/ David A. Hoeller
---------------------------------
Name: David A. Hoeller
Title: Vice President & Secretary
EXHIBIT A
Subordinated Promissory Note
November 7, 2003
FOR VALUE RECEIVED, HYUNDAI ABS FUNDING CORPORATION ("Depositor"), hereby
promises to pay to the order of HYUNDAI MOTOR FINANCE COMPANY ("Seller"), at the
principal office of Seller at 10550 Talbert Avenue, Fountain Valley, California,
or at such other place as Seller may designate from time to time, the unpaid
principal amount hereof, together with accrued interest thereon at a rate per
annum equal to the prime rate as published on such day (or, if not then
published, on the most recently preceding day) in The Wall Street Journal as the
"Prime Rate" (changes in the rate payable hereunder shall be effective on each
day on which a change in the Prime Rate is published), in lawful money of the
United States of America and in immediately available funds, on the sixtieth
(60th) day after the termination of the Purchase Agreement referred to below or,
if such sixtieth (60th) day is not a Business Day, on the first Business Day
thereafter (such sixtieth (60th) day or later Business Day being referred to as
the "Maturity Date"), together with costs of collection and reasonable
attorney's fees incurred by Seller in the collection of the indebtedness
evidenced hereby. Except as otherwise defined herein, capitalized terms used
herein and defined in the Receivables Purchase Agreement dated as of November 7,
2003 between Depositor and Seller (as amended and modified or supplemented from
time to time the "Purchase Agreement") shall be used herein as so defined.
Interest shall be computed hereunder for the actual number of days elapsed on
the basis of a year consisting of three hundred sixty five (365) days.
All accrued interest on the principal amount of this Note will be due and
payable on each Settlement Date; provided, however, that on or prior to the
Maturity Date, unless Seller instructs Depositor otherwise, such interest may be
paid by means of an increase in the amount of the unpaid principal amount hereof
by an amount equal to the interest being so paid.
The principal amount of this Note shall be initially established and
thereafter adjusted from time to time in accordance with the terms and
conditions of the Purchase Agreement (the terms and conditions of which are
hereby incorporated in this Note by this reference) and the terms of this Note.
Seller shall record the initial principal amount of this Note, all adjustments
thereto and all payments thereof on Schedule A annexed hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, and any such recordation shall, absent manifest error, constitute
prima facie evidence of the information so recorded; provided, however, that the
failure to so record shall not limit the obligations of Depositor hereunder or
under the Purchase Agreement.
Depositor and, by its acceptance of this Note, Seller hereby acknowledge
and agree that any and all payments made or payable in respect of this Note are
and shall remain subordinate and junior in right of payment to any right of the
seven classes of notes, designated as 1.11% Asset Backed Notes, Class A-1, 1.56%
Asset Backed Notes, Class A-2, 2.33% Asset Backed Notes, Class A-3, 3.02% Asset
Backed Notes, Class A-4, 2.99% Asset Backed Notes, Class B, 3.19% Asset Backed
Notes, Class C, and 4.06% Asset Backed Notes, Class D, issued pursuant to the
Indenture, dated as of November 7, 2003 (as amended, supplemented, amended and
restated
or otherwise modified from time to time), between the Hyundai Auto Receivables
Trust 2003-A and Wells Fargo Bank Minnesota, National Association and the
Hyundai Auto Receivables Trust 2003-A Asset Backed Trust Certificates, issued
pursuant to the Amended and Restated Trust Agreement, dated as of November 7,
2003 (as amended, supplemented, amended and restated or otherwise modified from
time to time, the "Trust Agreement"), between the Depositor and Wilmington Trust
Company, acting not in its individual capacity but solely as owner trustee under
the Trust Agreement, to receive any payment by the Depositor thereunder.
Depositor shall have the right to pay all or any part of the unpaid principal
amount of this Note without premium or penalty at any time; provided, that
interest shall be paid on the amount repaid to and including the date of
repayment.
Depositor hereby waives presentment, diligence, notice of dishonor,
payment, demand, protest, notice of protest, notice of nonpayment and all other
demands and notices of every kind in connection with the delivery, acceptance,
performance and enforcement of this Note and, to the full extent permitted by
law, the right to plead any statute of limitations as a defense to any demands
hereunder. Depositor and, by its acceptance of this Note, Seller also assent to
extension of the time of payment, forbearance or other indulgence without
notice.
This Note applies to, inures to the benefit of, and binds the successors
and assigns of, Depositor and Seller. Neither Depositor nor Seller may assign
any duties or obligations hereunder without the prior written consent of the
other party. THIS NOTE IS MADE UNDER, AND ALL QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS NOTE SHALL BE GOVERNED BY, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
On the first Business Day after the Maturity Date at the close of business
of which all principal and accrued interest owing on this Note have been paid in
full, this Note will be surrendered to Depositor for cancellation.
IN WITNESS WHEREOF, Depositor has executed and delivered this Note by its
duly authorized officer as of the day hereof.
HYUNDAI ABS FUNDING CORPORATION
By:
---------------------------------
Name:
Title:
ANNEX I to
EXHIBIT A
ANNEX A
REVOLVING PROMISSORY NOTE
UNPAID
PRINCIPAL
INCREASE IN DECREASE IN AMOUNT
PRINCIPAL PRINCIPAL AFTER REASON FOR NOTATION
DATE AMOUNT AMOUNT ADJUSTMENT ADJUSTMENT* MADE BY
- ---- ----------- ----------- ---------- --------------- --------
$ Initial Balance
- ----------
* Describe or use appropriate code specified below:
A=increase in lieu of cash payment of interest
B=increase/decrease pursuant to Section 1.2 of the Purchase and Sale
Agreement
C=decrease due to payment of principal
SCHEDULE I
Schedule of Receivables
[To be delivered to the Trust at Closing]
SCHEDULE II
Receivable File Schedule
1. All documents obtained or created in connection with the credit
investigation.
2. All Obligor records including without limitation (i) file copy of
Receivable; (ii) copy of Dealer assignment (if applicable) and any
intervening assignments; (iii) warranty copy (if applicable); (iv) credit
life insurance policy (if applicable); (v) proof of auto insurance or
obligor agreement to provide such insurance; (vi) title application; (vii)
contract verification sheet; and (viii) original application.
3. Original document envelope together with all documents maintained therein.
4. Any and all other documents that the Servicer shall keep on file in
accordance with its customary procedures relating to a Receivable, an
Obligor or a Financed Vehicle.
SCHEDULE III
Reconveyance Agreements
Reconveyance and Release Agreement dated as of November 7, 2003 among Hyundai BC
Funding Corporation, Societe Generale, Amsterdam Funding Corporation, Asset One
Securitization, L.L.C. and Sheffield Receivables Corporation
Receivables Transfer Agreement and Assignment, dated as of November 7, 2003
between Hyundai Motor Finance Company and Hyundai BC Funding Corporation
SCHEDULE IV
Conduit Documents
Purchase and Sale Agreement dated as of January 17, 2000, as amended, between
Hyundai Motor Finance Company and Hyundai BC Funding Corporation
Second Amended and Restated Receivables Purchase Agreement dated as of July 23,
2002, as amended, among Hyundai BC Funding Corporation, Hyundai Motor Finance
Company, Amsterdam Funding Corporation, Asset One Securities, L.L.C., Sheffield
Receivables Corporation, ABN AMRO Bank N.V., Barclays Bank PLC and Societe
Generale