Exhibit 1.1
Execution Copy
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HYUNDAI AUTO RECEIVABLES TRUST 2004-A
$746,300,000 ASSET BACKED NOTES
HYUNDAI ABS FUNDING CORPORATION
(DEPOSITOR)
HYUNDAI MOTOR FINANCE COMPANY
(SELLER AND SERVICER)
UNDERWRITING AGREEMENT
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August 26, 2004
Banc of America Securities LLC
as Representative of the
Several Underwriters
Hearst Tower
214 North Tryon Street
Charlotte, North Carolina 28255
Ladies and Gentlemen:
SECTION 1. Introduction. Hyundai ABS Funding Corporation (the "Depositor")
proposes to cause Hyundai Auto Receivables Trust 2004-A (the "Trust") to issue
and sell $155,000,000 principal amount of its Class A-1 Notes (the "Class A-1
Notes"), $215,000,000 principal amount of Class A-2 Notes (the "Class A-2
Notes"), $188,000,000 principal amount of its Class A-3 Notes (the "Class A-3
Notes"), and $92,100,000 principal amount of its 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"), $36,500,000 principal amount of its Class B
Notes (the "Class B Notes"), $26,900,000 principal amount of its Class C Notes
(the "Class C Notes"), and $32,800,000 principal amount of its 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 Banc of America Securities LLC
("Banc of America") is acting as representative (the "Representative"). The
Notes will be issued pursuant to an Indenture, to be dated as of September 1,
2004 (the "Indenture"), between the Trust and Citibank, 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 July 31, 2004 (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
September 1, 2004 (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 September 1, 2004
(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 September 1, 2004 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.
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
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September 1, 2004 between the Depositor and HMFC. HMFC has acquired the
Receivables from franchised dealers (the "Dealers") pursuant to certain dealer
retail agreements between each 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, the Indenture, the Trust Agreement,
the Receivables Purchase Agreement and the 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. 333-117398),
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 filing 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");
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
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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 and the
fifth paragraph under the heading "Underwriting" in the Base
Prospectus (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
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
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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 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
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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 license, 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 or 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
material indenture, mortgage, deed of trust, lease or other material
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 Depositor or any of its Affiliates
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.
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(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.
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
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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 September 1, 2004 (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 Trust.
Furthermore, in the event that the Underwriters make a Payment to the Trust
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 Trust will not be
entitled to the Payment and the Depositor shall cause the Trust to 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 Trust to the Underwriters on
the same day the Payment was received by the Trust, the Depositor agrees to pay,
or otherwise cause the Trust 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.
(a) To file the Prospectus, properly completed, with the Commission
pursuant to and in accordance with Rule 424(b) under the Securities Act 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) under the Securities Act.
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(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 HMFC, 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.
(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
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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 and (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 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
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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 the 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
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. To the extent that the transactions contemplated by this
agreement are consummated, HMFC shall only pay the fees and expenses described
in clauses (a) through (k) to the extent that such fees and expenses exceed
$223,890 and the Underwriters shall pay such fees and expenses in an aggregate
amount of up to $223,890. 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
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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 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
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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 the Depositor's rights under the Receivables Purchase
Agreement 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 and the Transaction
Documents to which it is a party 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.
(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 to which it is a party, (D) that could
reasonably
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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 or to 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) No authorization, consent, approval or other action by, and
notice for, or filing with, any governmental authority or regulatory
body of the State of California is required to the execution, delivery
and performance by HMFC or the Depositor of the Transaction Documents
to which it is a party.
(x) 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, special 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) Each Transaction Document to which the Depositor (other than
this Agreement and the Trust Agreement as to which no opinion shall be
expressed), 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.
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(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, to the best of our knowledge, (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 described in Section
2.01(a) of the Receivables Purchase Agreement in which HMFC has rights
and a valid security interest (as defined in 1-201(77) of the New York
UCC) may be created under 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 described in
Section 2.01 of the Sale and Servicing Agreement in which the Depositor
has rights and a valid security interest (as defined in 1-201(77) of
the New York UCC) may be created under 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, for the benefit of the noteholders in that portion
of the collateral described in the Granting Clause of the Indenture in
which the Trust has rights and a valid security interest (as defined in
1-201(77) of the New York UCC) may be created under 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 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 to the extent a
security interest in such RPA Assets can be perfected under the
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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 to the extent a
security interest in such SSA Assets can 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) The Registration Statement has become effective under the
Securities Act, to the best of the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that
purpose have been initiated by the Commission, any required filing of
the Prospectus pursuant to Rule 424 has been made in accordance with
Rule 424, and the Registration Statement, as of the date it was
declared effective, and the Prospectus, as of its date, complies as to
form in all material respects with the requirements for registration
statements on Form S-3 under the Securities Act and the Rules and
Regulations.
(xii) The Trust Agreement is not required to be qualified under
the Trust Indenture Act.
(xiii) The Indenture has been qualified under the Trust Indenture
Act.
(xiv) The Class A-1 Notes are "eligible securities" within the
meaning of Rule 2a-7 promulgated under the Investment Company Act.
(xv) 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.
(xvi) The statements in the Prospectus under the heading "ERISA
CONSIDERATIONS" to the extent they describe matters of law or legal
conclusions with respect thereto, are correct in all material respects.
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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
Uniform Commercial Code of the State of Delaware, the Uniform Commercial Code 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. 'SS'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 HMFC is the debtor, the bankruptcy
court would determine that, with respect to the sale of the Receivables
from HMFC to the Depositor, such sale was a "true sale."
(iii) If HMFC were to become a debtor in a case under the
Bankruptcy Code, a federal bankruptcy court, would hold that (A) the
Receivables sold to the Depositor are not property of the estate of
HMFC 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 HMFC 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 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, or incorporated by
reference 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
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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 Supplement)) included in,
or omitted from, the Prospectus, the second sentence in the paragraph under the
caption "The Owner Trustee" in the Prospectus Supplement, the second and third
sentences in the paragraph under the heading "The Indenture Trustee" in the
Prospectus Supplement, the Underwriters' Information or the exhibits to the
Registration Statement.
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 counsel to the Underwriters, 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 Citibank,
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 Trust 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 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
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heading "MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES" insofar as they
purport to summarize certain provisions of the statutes or regulations referred
to therein, are accurate summaries 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 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.
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(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.
'SS'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.
(iv) To the extent that Article 9 of 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.
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(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 'SS'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 'SS'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.
(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
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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."
(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 at least "A", "A3" and
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"A+" by S&P, Moody's and Fitch. The Class D Notes shall have been rated at least
"BBB" and "BBB+" by S&P and Fitch.
(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-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
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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,
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
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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 third-party 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.
(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
-25-
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.
(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
-26-
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 9A. Additional Indemnification
(a) Banc of America on behalf of itself and not any of the other
Underwriters will indemnify and hold harmless each Company and each officer and
each director of each Company (each individually, an "Additional Indemnified
Party," and collectively, the "Additional Indemnified Parties") against any
losses, claims, damages or liabilities, joint or several, to which any
Additional Indemnified Party may become subject, under the Securities Act or
under any other securities laws, insofar as such losses, claims, damages or
liabilities (or actions, including rescission actions, in respect thereof) arise
solely out of or are based upon the distribution, directly or indirectly, by
Banc of America or any of its affiliates, including, without limitation, any
employee thereof, of the Banc of America Hyundai Auto Receivables Trust 2004-A
Sales Memorandum (the "Memorandum") through an email at 3:28 p.m. New York time
on August 23, 2004 (the "Email"), and will reimburse each Additional Indemnified
Party for any legal or other expenses incurred by such Additional Indemnified
Party in connection with investigating or defending any such action, loss or
claim as such expenses are incurred.
(b) Promptly after receipt by an Additional Indemnified Party under
subsection (a) above of notice of the commencement of any action, such
Additional Indemnified Party shall, if a claim in respect thereof is to be made
or could be made against Banc of America under such subsection, notify Banc of
America in writing of the commencement thereof; but the failure to notify Banc
of America shall not relieve Banc of America from any liability which it may
have to any Additional Indemnified Party to the extent that Banc of America has
not been materially adversely affected by such omission or otherwise than under
such subsection. In case any such action shall be brought against any Additional
Indemnified Party and the Additional Indemnified
-27-
Party shall notify Banc of America of the commencement thereof, Banc of America
shall be entitled to participate therein and, to the extent that it shall wish,
to assume the defense thereof, with counsel satisfactory to such Additional
Indemnified Party (who shall not, except with the consent of the Additional
Indemnified Party, be counsel to the Additional Indemnified Party), and, after
notice from Banc of America to such Additional Indemnified Party of its election
so to assume the defense thereof, Banc of America shall not be liable to such
Additional Indemnified Party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
Additional Indemnified Party, in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Additional
Indemnified Party shall have the right to employ separate counsel in any action
if there is an actual conflict of interest between Banc of America and the
Additional Indemnified Party in the conduct of the defense of such action, in
which case Banc of America shall not be entitled to assume the defense of such
action. If Banc of America does not assume the defense of such action, it is
understood that Banc of America shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to one separate firm of local attorneys in each such jurisdiction) at
any time for all such Additional Indemnified Parties, which firms shall be
designated in writing by HMFC. Banc of America shall not be liable for any
settlement of an action or claim for monetary damages that an Additional
Indemnified Party may effect without the consent of Banc of America, which
consent shall not be unreasonably withheld.
(c) If the indemnification provided for in this Section 9A is
unavailable to or insufficient to hold harmless an Additional Indemnified Party
under subsection (a) above in respect of any losses, claims, damages or
liabilities (or actions, including rescission actions, in respect thereof)
referred to therein, then Banc of America shall contribute to the amount paid or
payable by such Additional Indemnified Party as a result of such losses, claims,
damages or liabilities (or actions, including rescissions actions, in respect
thereof) in such proportion as is appropriate to reflect the relative fault of
the Additional Indemnified Parties on the one hand and Banc of America and its
affiliates on the other in connection with the distribution by Banc of America
or any of its affiliates of the Memorandum and the Email, as well as any other
relevant equitable considerations. The relative fault between the Additional
Indemnified Parties and Banc of America and its affiliates shall be determined
by reference to, among other things, the identity of the party that distributed
the Memorandum and the Email and the parties' relative intent and opportunity to
prevent such distribution of the Memorandum and the Email. Solely for purposes
of this Section 9A, the parties agree that the determination to offer and/or
sell any Notes to a recipient of the Memorandum and the Email is made solely by
Banc of America and that no fault shall be attributed to any Additional
Indemnified Party as a result of the decision to offer and/or sell notes to a
recipient of the Memorandum and the Email. The amount paid or payable by an
Additional Indemnified Party as a result of the losses, claims, damages or
liabilities (or actions, including rescission actions, in respect thereof)
referred to above in this subsection (c) shall be deemed to include any legal or
other expenses incurred by such Additional Indemnified Party in connection with
investigating or defending any such action or claim, other than legal or other
expenses incurred by the Additional Indemnified Party in defending such action
or claim in the event the Additional Indemnified Party elects to participate in
such defense with its own counsel.
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(e) The obligations of Banc of America under this Section 9A shall be
in addition to any liability which it may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of a Company
(including any person who, with his or her consent, is named in the Registration
Statement as being about to become a director of the Company) and to each
person, if any, who controls a Company or any other Additional Indemnified Party
within the meaning of the Securities Act.
(f) Banc of America represents that it has advised each person known
by it to have obtained the Memorandum and the Email that such communication was
sent in error, should not be relied upon in making an investment decision,
should not be circulated or disseminated in any form or manner and should be
destroyed.
(g) No provision of this Section 9A may be assigned without the prior
written consent of HMFC. The provisions of this Section 9A shall be for the
benefit of and enforceable by each Company and each officer and director of each
Company (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company) and each
person, if any, who controls each Company or any other Additional Indemnified
Party within the meaning of the Securities Act. No other person shall have any
right or obligation under this Section 9A.
(h) The obligations to indemnify and hold harmless, or to contribute,
pursuant to this Section 9A shall survive for a period ending on the one-year
anniversary of the retirement of the Notes, except for claims for
indemnification and/or contribution asserted prior to the end of such period
which shall survive until the final resolution thereof.
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 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
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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:
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 of America Securities LLC
Hearst Tower
214 North Tryon Street
Charlotte, NC 28255-0001
Facsimile: 703-386-2731
Attention: Andy Glenn
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.
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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) each of
"subsidiary" and "Affiliate" has the meaning set forth in Rule 405 under the
Securities Act.
(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
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payment for the Notes. The respective agreements, covenants, indemnities and
other statements set forth in Sections 5, 9 and 9A 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/ Jaime Song
------------------------------------
Name: Jae Min Song
Title: Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
BANC OF AMERICA SECURITIES LLC
on behalf of itself and as Representative of the
several Underwriters
By: /s/ James G. Mackey
---------------------------------------------
Name: James G. Mackey
Title: Principal
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SCHEDULE I
Class A-1 Class A-2 Class A-3 Class A-4
Underwriter Notes Notes Notes Notes
- ----------------------------------------------- ----------- ----------- ----------- -----------
ABN AMRO Incorporated.......................... $37,975,000 $52,675,000 $46,060,000 $22,564,500
Banc of America Securities LLC................. $37,975,000 $52,675,000 $46,060,000 $22,564,500
Barclays Capital Inc........................... $27,125,000 $37,625,000 $32,900,000 $16,117,500
Deutsche Bank Securities Inc................... $13,950,000 $19,350,000 $16,920,000 $8,289,000
SG Americas Securities, LLC.................... $37,975,000 $52,675,000 $46,060,000 $22,564,500
----------- ----------- ----------- -----------
Total.......................................... $155,000,000 $215,000,000 $188,000,000 $92,100,000
Class B Class C Class D
Underwriter Notes Notes Notes
- ----------------------------------------------- ----------- ----------- -----------
ABN AMRO Incorporated.......................... $18,250,000 $13,450,000 $16,400,000
Banc of America Securities LLC................. $18,250,000 $13,450,000 $16,400,000
Barclays Capital Inc........................... $0 $0 $0
Deutsche Bank Securities Inc................... $0 $0 $0
SG Americas Securities, LLC.................... $0 $0 $0
----------- ----------- -----------
Total.......................................... $36,500,000 $26,900,000 $32,800,000
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SCHEDULE II
Original Principal
Security Balance $ Price $
- -------------------------- ------------------ ---------------
Class A-1 Notes $155,000,000 $154,798,500.00
Class A-2 Notes $215,000,000 $214,665,739.50
Class A-3 Notes $188,000,000 $187,640,224.40
Class A-4 Notes $92,100,000 $91,904,011.20
Class B Notes $36,500,000 $36,387,528.90
Class C Notes $26,900,000 $26,800,739.00
Class D Notes $32,800,000 $32,649,749.76
Total Price to Depositor $744,846,492.76
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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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