Exhibit 4.1
EXECUTION COPY
INDENTURE
between
HYUNDAI AUTO RECEIVABLES TRUST 2004-A,
as Issuer
and
CITIBANK, N.A.,
as Indenture Trustee
Dated as of September 1, 2004
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE.............................................................2
Section 1.01. Definition.................................................................................2
Section 1.02. Rules of Construction.....................................................................11
Section 1.03. Incorporation by Reference of Trust Indenture Act.........................................11
ARTICLE II. THE NOTES............................................................................................12
Section 2.01. Form .....................................................................................12
Section 2.02. Execution, Authentication and Delivery....................................................12
Section 2.03. Temporary Notes...........................................................................13
Section 2.04. Registration; Registration of Transfer and Exchange.......................................13
Section 2.05. [Reserved]................................................................................15
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes................................................15
Section 2.07. Persons Deemed Owners.....................................................................16
Section 2.08. Payment of Principal and Interest; Defaulted Interest.....................................16
Section 2.09. Cancellation..............................................................................17
Section 2.10. Book-Entry Notes..........................................................................17
Section 2.11. Notices to Clearing Agency................................................................18
Section 2.12. Definitive Notes..........................................................................18
Section 2.13. Tax Treatment.............................................................................18
ARTICLE III. COVENANTS...........................................................................................19
Section 3.01. Payment of Principal and Interest.........................................................19
Section 3.02. Maintenance of Office or Agency...........................................................19
Section 3.03. Money for Payments To Be Held in Trust....................................................19
Section 3.04. Existence.................................................................................21
Section 3.05. Protection of Trust Estate................................................................21
Section 3.06. Opinions as to Trust Estate...............................................................21
Section 3.07. Performance of Obligations; Servicing of Receivables......................................22
Section 3.08. Negative Covenants........................................................................23
Section 3.09. Annual Statement as to Compliance.........................................................24
Section 3.10. Issuer May Consolidate, etc., Only on Certain Terms.......................................24
Section 3.11. Successor or Transferee...................................................................26
Section 3.12. No Other Business.........................................................................26
Section 3.13. No Borrowing..............................................................................26
Section 3.14. Servicer's Obligations....................................................................26
Section 3.15. Guarantees, Loans, Advances and Other Liabilities.........................................26
Section 3.16. Capital Expenditures......................................................................26
Section 3.17. Removal of Administrator..................................................................26
Section 3.18. Restricted Payments.......................................................................26
Section 3.19. Notice of Events of Default...............................................................27
Section 3.20. Further Instruments and Acts..............................................................27
ARTICLE IV. SATISFACTION AND DISCHARGE...........................................................................27
Section 4.01. Satisfaction and Discharge of Indenture...................................................27
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Section 4.02. Application of Trust Money................................................................28
Section 4.03. Repayment of Moneys Held by Paying Agent..................................................28
Section 4.04. Release of Collateral.....................................................................29
ARTICLE V. REMEDIES..............................................................................................29
Section 5.01. Events of Default.........................................................................29
Section 5.02. Acceleration of Maturity; Rescission and Annulment........................................30
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.................31
Section 5.04. Remedies; Priorities......................................................................33
Section 5.05. Optional Preservation of the Receivables..................................................36
Section 5.06. Limitation of Suits.......................................................................36
Section 5.07. Unconditional Rights of Noteholders To Receive Principal and Interest.....................37
Section 5.08. Restoration of Rights and Remedies........................................................37
Section 5.09. Rights and Remedies Cumulative............................................................37
Section 5.10. Delay or Omission Not a Waiver............................................................37
Section 5.11. Control by the Controlling Class of Noteholders...........................................37
Section 5.12. Waiver of Past Defaults...................................................................38
Section 5.13. Undertaking for Costs.....................................................................38
Section 5.14. Waiver of Stay or Extension Laws..........................................................39
Section 5.15. Action on Notes...........................................................................39
Section 5.16. Performance and Enforcement of Certain Obligations........................................39
ARTICLE VI. THE INDENTURE TRUSTEE................................................................................40
Section 6.01. Duties of Indenture Trustee...............................................................40
Section 6.02. Rights of Indenture Trustee...............................................................41
Section 6.03. Individual Rights of Indenture Trustee....................................................43
Section 6.04. Indenture Trustee's Disclaimer............................................................43
Section 6.05. Notice of Defaults........................................................................43
Section 6.06. Reports by Indenture Trustee to Holders...................................................43
Section 6.07. Compensation and Indemnity................................................................43
Section 6.08. Replacement of Indenture Trustee..........................................................44
Section 6.09. Successor Indenture Trustee by Merger.....................................................45
Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture Trustee.........................45
Section 6.11. Eligibility; Disqualification.............................................................46
Section 6.12. [Reserved]................................................................................46
Section 6.13. Preferential Collection of Claims Against Issuer..........................................46
Section 6.14. Waiver of Setoffs.........................................................................47
ARTICLE VII. NOTEHOLDERS' LISTS AND REPORTS......................................................................47
Section 7.01. Note Registrar To Furnish Names and Address of Noteholders................................47
Section 7.02. Preservation of Information; Communications to Noteholders................................47
Section 7.03. Reports by Issuer.........................................................................48
Section 7.04. Reports by Indenture Trustee..............................................................48
ARTICLE VIII. ACCOUNTS, DISBURSEMENTS AND RELEASES...............................................................48
Section 8.01. Collection of Money.......................................................................48
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Section 8.02. Trust Accounts............................................................................49
Section 8.03. General Provisions Regarding Accounts.....................................................51
Section 8.04. Release of Trust Estate...................................................................51
Section 8.05. Opinion of Counsel........................................................................52
ARTICLE IX. SUPPLEMENTAL INDENTURES..............................................................................52
Section 9.01. Supplemental Indentures Without Consent of Noteholders....................................52
Section 9.02. Supplemental Indentures with Consent of Noteholders.......................................53
Section 9.03. Execution of Supplemental Indentures......................................................55
Section 9.04. Effect of Supplemental Indenture..........................................................55
Section 9.05. Reference in Notes to Supplemental Indentures.............................................55
Section 9.06. Conformity with Trust Indenture Act.......................................................55
ARTICLE X. REDEMPTION OF NOTES...................................................................................56
Section 10.01. Redemption...............................................................................56
Section 10.02. Form of Redemption Notice................................................................56
Section 10.03. Notes Payable on Redemption Date.........................................................56
ARTICLE XI. MISCELLANEOUS........................................................................................57
Section 11.01. Compliance Certificates and Opinions, etc................................................57
Section 11.02. Form of Documents Delivered to Indenture Trustee.........................................58
Section 11.03. Acts of Noteholders......................................................................59
Section 11.04. Notices, etc., to Indenture Trustee, Issuer and Rating Agencies..........................60
Section 11.05. Notices to Noteholders; Waiver...........................................................60
Section 11.06. Alternate Payment and Notice Provisions..................................................61
Section 11.07. Effect of Headings and Table of Contents.................................................61
Section 11.08. Successors and Assigns...................................................................61
Section 11.09. Separability.............................................................................61
Section 11.10. Benefits of Indenture....................................................................61
Section 11.11. Legal Holidays...........................................................................61
Section 11.12. GOVERNING LAW............................................................................62
Section 11.13. Counterparts.............................................................................62
Section 11.14. Recording of Indenture...................................................................62
Section 11.15. Trust Obligation.........................................................................62
Section 11.16. No Petition..............................................................................62
Section 11.17. Inspection...............................................................................62
Section 11.18. Conflict with Trust Indenture Act........................................................63
Section 11.19. Limitation of Liability..................................................................63
Section 11.20. Representations and Warranties...........................................................63
EXHIBITS
SCHEDULE A Schedule of Receivables
EXHIBIT A-1 Form of Class A-1 Note
EXHIBIT A-2 Form of Class A-2 Note
EXHIBIT A-3 Form of Class A-3 Note
EXHIBIT A-4 Form of Class A-4 Note
EXHIBIT B Form of Class B Note
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EXHIBIT C Form of Class C Note
EXHIBIT D Form of Class D Note
EXHIBIT E Form of the Note Depository Agreement
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THIS INDENTURE, dated as of September 1, 2004, is between HYUNDAI AUTO
RECEIVABLES TRUST 2004-A, a Delaware statutory trust (the "Issuer"), and
Citibank, N.A., a national banking association, as trustee and not in its
individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Issuer's 1.78125% Asset
Backed Notes, Class A-1 (the "Class A-1 Notes"), 2.36% Asset Backed Notes, Class
A-2 (the "Class A-2 Notes"), 2.97% Asset Backed Notes, Class A-3 (the "Class A-3
Notes"), 3.54% Asset Backed Notes, Class A-4 (the "Class A-4 Notes"), 3.46%
Asset Backed Notes, Class B (the "Class B Notes"), 3.36% Asset Backed Notes,
Class C (the "Class C Notes") and 4.10% Asset Backed Notes, Class D (the "Class
D Notes" and, together with the Class A-1 Notes, Class A-2 Notes, Class A-3
Notes, Class A-4 Notes, Class B Notes and Class C Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date,
as Indenture Trustee for the benefit of the Holders of the Notes, all of the
Issuer's right, title and interest in and to (a) the Receivables listed on
Schedule A and all moneys received thereon on or after the close of business on
the Cutoff Date; (b) the security interests in the Financed Vehicles and any
accessions thereto granted by Obligors pursuant to the Receivables and any other
interest of the Depositor in such Financed Vehicles; (c) any Liquidation
Proceeds and any other proceeds with respect to the Receivables from claims on
any physical damage, credit life or disability insurance policies covering
Financed Vehicles or the related Obligors, including any vendor's single
interest or other collateral protection insurance policy; (d) any property that
shall have secured a Receivable and that shall have been acquired by or on
behalf of the Depositor, the Servicer, or the Issuer; (e) all documents and
other items contained in the Receivable Files; (f) all the Depositor's rights,
but none of its obligations, under the Receivables Purchase Agreement; (g) all
right, title and interest in the Trust Accounts, all funds, securities or other
assets credited from time to time to the Trust Accounts and all investments
therein and proceeds thereof (including all investment earnings thereon); (h)
any proceeds from any Receivable repurchased by a Dealer pursuant to a Dealer
Agreement; and (i) all present and future claims, demands, causes of action and
choses in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in respect of any
or all of the foregoing, including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights to
payment of any and every kind and other forms of obligations and receivables,
instruments and other property that at any time constitute all or part of or are
included in the proceeds of any of the foregoing (collectively, the
"Collateral").
The foregoing Grant is made in trust to secure the payment of principal
of and interest on, and any other amounts owing in respect of, the Notes,
equally and ratably without prejudice, priority or distinction, and to secure
compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Indenture Trustee, on behalf of the Holders of the Notes,
acknowledges such Grant, accepts the trusts under this Indenture in accordance
with the provisions of this Indenture
and agrees to perform its duties required in this Indenture to the best of its
ability to the end that the interests of the Holders of the Notes may be
adequately and effectively protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definition. (a) Except as otherwise specified herein
or as the context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Indenture.
"Act" has the meaning specified in Section 11.03(a).
"Administration Agreement" means the Owner Trust Administration
Agreement, dated as of September 1, 2004 among the Administrator, the Issuer and
the Indenture Trustee, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Administrator" means HMFC, or any successor Administrator under the
Administration Agreement.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authorized Officer" means, with respect to the Issuer, any officer of
the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer and who is identified on the list of Authorized Officers
delivered by the Owner Trustee to the Indenture Trustee on the Closing Date (as
such list may be modified or supplemented from time to time thereafter) and, so
long as the Administration Agreement is in effect, any Vice President or other
senior officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified on
the list of Authorized Officers delivered by the Administrator to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter).
"Book-Entry Notes" means a beneficial interest in the Notes, ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 2.10.
"Business Day" shall have the meaning assigned thereto in the Sale and
Servicing Agreement.
"Certificate of Trust" means the certificate of trust of the Issuer
substantially in the form of Exhibit A to the Trust Agreement.
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"Class A Notes" means collectively the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes, as the context may require.
"Class A Principal Distributable Amount" means, with respect to any
Payment Date, an amount equal to the greater of the Outstanding Amount of the
Class A-1 Notes and the following:
(a) the aggregate Outstanding Amount of the Class A Notes immediately
prior to such Payment Date; minus
(b) the lesser of:
(i) an amount equal to the product of:
(A) the Adjusted Pool Balance as of the last day of the related
Collection Period; and
(B) the sum of 63.00% and the percentage equivalent of a
fraction equal to:
(x) the amount on deposit in the Reserve Account after
giving effect to any withdrawals but prior to giving effect to
any deposits on that Payment Date; divided by
(y) the Adjusted Pool Balance as of the last day of the
related Collection Period; and
(ii) an amount equal to the Adjusted Pool Balance as of the last
day of the related Collection Period minus the Target
Overcollateralization Amount for the Payment Date;
provided, however, that on the Stated Maturity Date of any class of Class A
Notes, the Class A Principal Distributable Amount will be at least an amount
sufficient to pay that class in full; and provided further, that the Class A
Principal Distributable Amount on any Payment Date will not exceed the
Outstanding Amount of the Class A Notes on that Payment Date.
"Class A-1 Notes" means the 1.78125% Asset Backed Notes, Class A-1,
substantially in the form of Exhibit A-1.
"Class A-1 Rate" means 1.78125% per annum, computed on the basis of the
actual number of days elapsed in the related Interest Accrual Period.
"Class A-2 Notes" means the 2.36% Asset Backed Notes, Class A-2,
substantially in the form of Exhibit A-2.
"Class A-2 Rate" means 2.36% per annum computed on the basis of a
360-day year consisting of twelve 30-day months.
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"Class A-3 Notes" means the 2.97% Asset Backed Notes, Class A-3,
substantially in the form of Exhibit A-3.
"Class A-3 Rate" means 2.97% per annum, computed on the basis of a
360-day year consisting of twelve 30-day months.
"Class A-4 Notes" means the 3.54% Asset Backed Notes, Class A-4,
substantially in the form of Exhibit A-4.
"Class A-4 Rate" means 3.54% per annum, computed on the basis of a
360-day year consisting of twelve 30-day months.
"Class B Notes" means the 3.46% Asset Backed Notes, Class B,
substantially in the form of Exhibit B.
"Class B Principal Distributable Amount" means, with respect to any
Payment Date, an amount equal to:
(a) the sum of the aggregate Outstanding Amount of the Class A Notes
(after taking into account the payment of the Class A Principal
Distributable Amount on such Payment Date) and the aggregate Outstanding
Amount of the Class B Notes immediately prior to such Payment Date; minus
(b) the lesser of:
(i) an amount equal to the product of:
(A) the Adjusted Pool Balance as of the last day of the related
Collection Period; and
(B) the sum of 74.50% and the percentage equivalent of a
fraction equal to:
(x) the amount on deposit in the Reserve Account after
giving effect to any withdrawals but prior to giving effect to
any deposits on that Payment Date; divided by
(y) the Adjusted Pool Balance as of the last day of the
related Collection Period; and
(ii) an amount equal to the Adjusted Pool Balance as of the last
day of the related Collection Period minus the Target
Overcollateralization Amount for the Payment Date;
provided, however, that on the Stated Maturity Date of any class of Class B
Notes, the Class B Principal Distributable Amount will be at least an amount
sufficient to pay that class in full; and provided further, that the Class B
Principal Distributable Amount on any Payment Date will not exceed the
Outstanding Amount of the Class B Notes on that Payment Date.
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"Class B Rate" means 3.46% per annum, computed on the basis of a
360-day year consisting of twelve 30-day months.
"Class C Notes" means the 3.36% Asset Backed Notes, Class C,
substantially in the form of Exhibit C.
"Class C Principal Distributable Amount" means, with respect to any
Payment Date, an amount equal to:
(a) the sum of the aggregate Outstanding Amount of the Class A
Notes and the Class B Notes (after taking into account the payment of
the Class A Principal Distributable Amount and the Class B Principal
Distributable Amount on such Payment Date) and the aggregate
Outstanding Amount of the Class C Notes immediately prior to such
Payment Date; minus
(b) the lesser of:
(i) an amount equal to the product of:
(A) the Adjusted Pool Balance as of the last
day of the related Collection Period; and
(B) the sum of 78.00% and the percentage
equivalent of a fraction equal to:
(x) the amount on deposit in the
Reserve Account after giving effect to any
withdrawals but prior to giving effect to
any deposits on that Payment Date; divided
by
(y) the Adjusted Pool Balance as of
the last day of the related Collection
Period; and
(ii) an amount equal to the Adjusted Pool Balance as
of the last day of the related Collection Period minus the
Target Overcollateralization Amount for the Payment Date;
provided, however, that on the Stated Maturity Date of any class of Class C
Notes, the Class C Principal Distributable Amount will be at least an amount
sufficient to pay that class in full; and provided further, that the Class C
Principal Distributable Amount on any Payment Date will not exceed the
Outstanding Amount of the Class C Notes on that Payment Date.
"Class C Rate" means 3.36% per annum, computed on the basis of
a 360-day year consisting of twelve 30-day months.
"Class D Notes" means the 4.10% Asset Backed Notes, Class D,
substantially in the form of Exhibit D.
"Class D Principal Distributable Amount" means, with respect
to any Payment Date, an amount equal to:
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(a) the sum of the aggregate Outstanding Amount of the Class A
Notes, the Class B Notes and the Class C Notes (after taking into
account the payment of the Class A Principal Distributable Amount, the
Class B Principal Distributable Amount and the Class C Principal
Distributable Amount on such Payment Date) and the Outstanding Amount
of the Class D Notes immediately prior to such Payment Date; minus
(b) an amount equal to the Adjusted Pool Balance as of the
last day of the related Collection Period minus the Target
Overcollateralization Amount for the Payment Date;
provided, however, that on the Stated Maturity Date of the Class D Notes, the
Class D Principal Distributable Amount will be at least an amount sufficient to
pay the Class D Notes in full; and provided further, that the Class D Principal
Distributable Amount on any Payment Date will not exceed the Outstanding Amount
of the Class D Notes on that Payment Date.
"Class D Rate" means 4.10% per annum, computed on the basis of
a 360-day year consisting of twelve 30-day months.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means September 1, 2004.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause
of this Indenture.
"Controlling Class" means with respect to any Notes that are
Outstanding, the Class A Notes (voting together as a single class) so long as
any Class A Notes are Outstanding, then the Class B Notes so long as any Class B
Notes are Outstanding, then the Class C Notes so long as any Class C Notes are
Outstanding and thereafter the Class D Notes so long as any Class D Notes are
Outstanding.
"Corporate Trust Office" means the principal office of the
Indenture Trustee at which at any particular time its corporate trust business
is administered, which office at the date of execution of this Agreement is
located at 111 Wall Street, 14th Floor, Zone 3, New York, New York 10005,
Attention: Structured Finance Agency and Trust-Hyundai Auto Receivables Trust
2004-A, facsimile number (212) 657-4009; or at such other address as the
Indenture Trustee may designate from time to time by notice to the Noteholders
and the Issuer, or the principal corporate trust office of any successor
Indenture Trustee at the address designated by such successor Indenture Trustee
by notice to the Noteholders and the Issuer.
"Default" means any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
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"Definitive Notes" has the meaning specified in Section 2.10.
"Depositor" means Hyundai ABS Funding Corporation, a Delaware
corporation, its successors and assigns.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Officer" means, with respect to any corporation,
the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, any Executive Vice President, any Senior Vice President, any Vice
President, the Secretary, the Controller or the Treasurer of such corporation;
and with respect to any partnership, any general partner thereof.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and grant a lien
upon and a security interest in and a right of set-off against, deposit, set
over and confirm pursuant to this Indenture. A Grant of the Collateral or of any
other agreement or instrument shall include all rights, powers and options (but
none of the obligations) of the granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give receipt
for principal and interest payments in respect of the Collateral and all other
moneys payable thereunder, to give and receive notices and other communications,
to make waivers or other agreements, to exercise all rights and options, to
bring Proceedings in the name of the granting party or otherwise, and generally
to do and receive anything that the granting party is or may be entitled to do
or receive thereunder or with respect thereto.
"HMFC" means Hyundai Motor Finance Company, a California
corporation, and its successors.
"Holder" or "Noteholder" means a Person in whose name a Note
is registered on the Note Register.
"Indenture Trustee" means Citibank, N.A., a national banking
association, not in its individual capacity, but as Indenture Trustee under this
Indenture, or any successor Indenture Trustee under this Indenture.
"Independent" means, when used with respect to any specified
Person, that such Person (a) is in fact independent of the Issuer, any other
obligor on the Notes, the Seller and any Affiliate of any of the foregoing
Persons, (b) does not have any direct financial interest or any material
indirect financial interest in the Issuer, any such other obligor, the Seller,
the Servicer, the Depositor or any Affiliate of any of the foregoing Persons and
(c) is not connected with the Issuer, any such other obligor, the Seller or any
Affiliate of any of the foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01, made by
an Independent appraiser or other expert appointed by an Issuer Order and
approved by the Indenture Trustee in the exercise of reasonable
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care, and such opinion or certificate shall state that the signer has read the
definition of "Independent" in this Indenture and that the signer is Independent
within the meaning thereof.
"Interest Rate" means the Class A-1 Rate, the Class A-2 Rate,
the Class A-3 Rate, the Class A-4 Rate, the Class B Rate, the Class C Rate or
the Class D Rate, as the context may require.
"Issuer" means Hyundai Auto Receivables Trust 2004-A until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the Notes.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Issuer by any one of its Authorized Officers
and delivered to the Indenture Trustee.
"Note" means a Class A Note, a Class B Note, a Class C Note or
a Class D Note as the context may require.
"Note Depository Agreement" means the agreement dated
September 1, 2004 among the Issuer, the Administrator, the Indenture Trustee and
The Depository Trust Company, as the initial Clearing Agency, relating to the
Class A Notes, the Class B Notes, the Class C Notes and the Class D Notes,
substantially in the form of Exhibit E.
"Note Owner" means, with respect to a Book-Entry Note, the
Person who is the beneficial owner of such Book-Entry Note, as reflected on the
books of the Clearing Agency or on the books of a Person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
"Note Register" and "Note Registrar" have the respective
meanings specified in Section 2.04.
"Officer's Certificate" means a certificate signed by any
Authorized Officer of the Issuer, under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01, and
delivered to the Indenture Trustee. Unless otherwise specified, any reference in
this Indenture to an Officer's Certificate shall be to an Officer's Certificate
of any Authorized Officer of the Issuer.
"Opinion of Counsel" means one or more written opinions of
counsel who may, except as otherwise expressly provided in this Indenture, be an
employee of or counsel to the Issuer and who shall be satisfactory to the
Indenture Trustee, and which opinion or opinions shall be addressed to the
Indenture Trustee, shall comply with any applicable requirements of Section
11.01 and shall be in form and substance satisfactory to the Indenture Trustee.
"Outstanding" means, as of any date of determination, all
Notes theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore cancelled by the Note Registrar
or delivered to the Note Registrar for cancellation;
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(ii) Notes or portions thereof the payment for which
money in the necessary amount has been theretofore deposited
with the Indenture Trustee or any Paying Agent in trust for
the Holders of such Notes (provided, however, that if such
Notes are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision for such
notice has been made, satisfactory to the Indenture Trustee);
and
(iii) Notes exchanged for or in lieu of which other
Notes have been authenticated and delivered pursuant to this
Indenture unless proof satisfactory to the Indenture Trustee
is presented that any such Notes are held by a bona fide
purchaser;
provided, however, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any Basic Document,
Notes owned by the Issuer, any other obligor on the Notes, the Depositor, the
Seller, the Servicer or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
that a Responsible Officer of the Indenture Trustee knows to be so owned shall
be so disregarded. Notes so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgee's right so to act with respect to such Notes and
that the pledgee is not the Issuer, any other obligor on the Notes, the
Depositor, the Seller, the Servicer or any Affiliate of any of the foregoing
Persons.
"Outstanding Amount" means, as of any date of determination
and as to any Notes, the aggregate principal amount of such Notes Outstanding as
of such date of determination.
"Owner Trustee" means Wilmington Trust Company, not in its
individual capacity but solely as Owner Trustee under the Trust Agreement, or
any successor Owner Trustee under the Trust Agreement.
"Paying Agent" means the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 and is authorized by the Issuer to make payments to and
distributions from the Collection Account, the Note Distribution Account and the
Reserve Account, including payments of principal of or interest on the Notes on
behalf of the Issuer.
"Payment Date" means the 15th day of each month, or if any
such date is not a Business Day, the next succeeding Business Day, commencing
October 15, 2004.
"Person" means any individual, corporation, estate,
partnership, limited liability company, joint venture, association, joint stock
company, trust or business trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
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"Predecessor Note" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purpose of this definition, any
Note authenticated and delivered under Section 2.06 in lieu of a mutilated,
lost, destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Record Date" means, with respect to a Payment Date or
Redemption Date, the close of business on the Business Day immediately preceding
such Payment Date or Redemption Date; or, if Definitive Notes have been issued,
the last day of the calendar month preceding such Payment Date or Redemption
Date.
"Redemption Date" means, as the context requires, in the case
of a redemption of the Notes pursuant to Section 10.01, the Payment Date
specified by the Servicer or the Issuer pursuant to Section 10.01.
"Redemption Price" means in the case of a redemption of the
Notes pursuant to Section 10.01, an amount equal to the unpaid principal amount
of the Notes redeemed plus accrued and unpaid interest thereon at the Interest
Rate for each Note being so redeemed to but excluding the Redemption Date.
"Registered Holder" means the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Responsible Officer" means, with respect to the Indenture
Trustee or Owner Trustee, as applicable, any officer within the Corporate Trust
Office of the Indenture Trustee or the Owner Trustee, including any Vice
President, Assistant Vice President, Assistant Treasurer, Assistant Secretary or
any other officer of the Indenture Trustee or the Owner Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject, in each case having direct
responsibility for the administration of the Basic Documents.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement, dated as of September 1, 2004, among the Issuer, the Depositor, HMFC,
as Seller and Servicer, and the Indenture Trustee, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Schedule of Receivables" means the list of Receivables set
forth in Schedule A (which Schedule may be in the form of microfiche).
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means HMFC in its capacity as seller under the
Receivables Purchase Agreement and the Sale and Servicing Agreement, and its
successor in interest.
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"Servicer" means HMFC, in its capacity as servicer under the
Sale and Servicing Agreement, and any Successor Servicer thereunder.
"State" means any one of the 50 states of the United States of
America, or the District of Columbia.
"Successor Servicer" has the meaning specified in Section
3.07(f).
"Trust Accounts" has the meaning set forth in the Sale and
Servicing Agreement.
"Trust Estate" means all money, instruments, rights and other
property that are subject or intended to be subject to the lien and security
interest of this Indenture for the benefit of the Noteholders (including,
without limitation, all property and interests Granted to the Indenture
Trustee), including all proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force on the date hereof, unless otherwise specifically provided.
"UCC" means, unless the context otherwise requires, the
Uniform Commercial Code as in effect in the relevant jurisdiction, as amended
from time to time.
(b) Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used herein but not otherwise defined shall
have the meanings ascribed thereto in the Sale and Servicing Agreement.
Section 1.02. Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) definitions are applicable to the singular and
plural forms of such terms and to the masculine, feminine and
neuter genders of such terms; and
(vi) any agreement, instrument or statute defined or
referred to herein or in any instrument or certificate
delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified
or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and
instruments incorporated therein; references to a Person are
also to its permitted successors and assigns.
Section 1.03. Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and
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made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
ARTICLE II.
THE NOTES
Section 2.01. Form. The Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes
and the Class D Notes, in each case together with the Indenture Trustee's
certificate of authentication, shall be in substantially the form set forth in
Exhibit A-1, Exhibit A-2, Exhibit A-3, Exhibit A-4, Exhibit B, Exhibit C and
Exhibit D, respectively, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined by the officers executing the Notes, as evidenced by their
execution of the Notes. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of such
Note.
The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the officers executing
such Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The
terms of the Notes set forth in Exhibit A-1, Exhibit A-2, Exhibit A-3, Exhibit
A-4, Exhibit B, Exhibit C and Exhibit D are part of the terms of this Indenture.
Section 2.02. Execution, Authentication and Delivery. The
Notes shall be executed on behalf of the Issuer by any of its Authorized
Officers. The signature of any such Authorized Officer on the Notes may be
manual or facsimile.
Notes bearing the manual or facsimile signature of individuals
who were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals
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or any of them have ceased to hold such offices prior to the authentication and
delivery of such Notes or did not hold such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Order authenticate and
deliver Class A-1 Notes for original issue in an aggregate principal amount of
$155,000,000, Class A-2 Notes for original issue in an aggregate principal
amount of $215,000,000, Class A-3 Notes for original issue in an aggregate
principal amount of $188,000,000, Class A-4 Notes for original issue in an
aggregate principal amount of $92,100,000, Class B Notes for original issue in
an aggregate principal amount of $36,500,000, Class C Notes for original issue
in an aggregate principal amount of $26,900,000, and Class D Notes for original
issue in an aggregate principal amount $32,800,000. The aggregate principal
amount of Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class B Notes, Class C Notes and Class D Notes outstanding at any time may not
exceed such respective amounts except as provided in Section 2.06.
The Notes shall be issuable as registered Notes in minimum
denominations of $1,000 and in integral multiples of $1,000 in excess thereof
(except for one Note of each class which may be issued in a denomination other
than an integral multiple of $1,000).
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
Section 2.03. Temporary Notes. Pending the preparation of
Definitive Notes, the Issuer may execute, and upon receipt of an Issuer Order
the Indenture Trustee shall authenticate and deliver, temporary Notes that are
printed, lithographed, typewritten, mimeographed or otherwise produced, of the
tenor of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Issuer shall cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the temporary Notes at the office or agency
of the Issuer to be maintained as provided in Section 3.02, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary Notes,
the Issuer shall execute, and the Indenture Trustee shall authenticate and
deliver in exchange therefor, a like principal amount of Definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Notes.
Section 2.04. Registration; Registration of Transfer and
Exchange. The Issuer shall cause to be kept a register (the "Note Register") in
which, subject to such reasonable regulations as it may prescribe, the Note
Registrar shall provide for the registration of Notes and the registration of
transfers of Notes. The Indenture Trustee initially shall be the "Note
Registrar" for the purpose of registering Notes and transfers of Notes as herein
provided. Upon any resignation of any Note Registrar, the Issuer shall promptly
appoint a successor or, if it elects
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not to make such an appointment, assume the duties of Note Registrar. If a
Person other than the Indenture Trustee is appointed by the Issuer as Note
Registrar, the Issuer will give the Indenture Trustee prompt written notice of
the appointment of such Note Registrar and of the location, and any change in
the location, of the Note Register, and the Indenture Trustee shall have the
right to inspect the Note Register at all reasonable times and to obtain copies
thereof, and the Indenture Trustee shall have the right to conclusively rely
upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Holders of the Notes and
the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained as provided in Section 3.02, if
the requirements of Section 8-401(a) of the UCC are met, the Issuer shall
execute, and the Indenture Trustee shall authenticate and the Noteholder shall
obtain from the Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes of the same Class in any authorized
denominations, of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other
Notes of the same Class in any authorized denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, if the requirements
of Section 8-401(a) of the UCC are met, the Issuer shall execute, and the
Indenture Trustee, without having to verify that the requirements of Section
8-401(a) have been met, shall authenticate and the Noteholder shall obtain from
the Indenture Trustee, the Notes that the Noteholder making the exchange is
entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange. Every Note presented or
surrendered for registration of transfer or exchange shall be duly endorsed by,
or be accompanied by a written instrument of transfer in form satisfactory to
the Indenture Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in the Securities
Transfer Agent's Medallion Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Exchange Act.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Issuer or the Indenture
Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes, other than exchanges pursuant to Section 2.03 or
9.05 not involving any transfer.
The preceding provisions of this Section notwithstanding, the
Issuer shall not be required to make and the Note Registrar need not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to the
Note.
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No Note, or any interest therein, may be transferred to an
"employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental, foreign or church plan subject to applicable law that is
substantially similar to the fiduciary responsibility provisions of ERISA or
Section 4975 of the Code, unless such transferee represents, warrants and
covenants that its purchase and holding of such note, throughout the period that
it holds such note, is and will be, covered by Department of Labor prohibited
transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE 91-38; PTE
84-14 or another applicable prohibited transaction exemption (or in the case of
a governmental, foreign or church plan, subject to law that is substantially
similar to ERISA or Section 4975 of the Code, a similar type of exemption or
other applicable relief). By its acquisition of a Note in book-entry form or any
interest therein, each transferee will be deemed to have represented, warranted
and covenanted that it satisfies the foregoing requirements and the Indenture
Trustee may rely conclusively on the same for purposes hereof.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the transfer of Notes.
Section 2.05. [Reserved].
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes. If
(i) any mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, and (ii) there is delivered to the Indenture Trustee such security
or indemnity as may be required by it to hold the Issuer and the Indenture
Trustee harmless, then, in the absence of notice to the Issuer, the Note
Registrar or the Indenture Trustee that such Note has been acquired by a
protected purchaser, and provided that the requirements of Section 8-405 of the
UCC are met, the Issuer shall execute, and upon an Issuer Order the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note of the same Class;
provided, however, that if any such destroyed, lost or stolen Note, but not a
mutilated Note, shall have become or within 15 days shall be due and payable, or
shall have been called for redemption, instead of issuing a replacement Note,
the Issuer may pay such destroyed, lost or stolen Note when so due or payable or
upon the Redemption Date without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note, a bona
fide purchaser of the original Note in lieu of which such replacement Note was
issued presents for payment such original Note, the Issuer and the Indenture
Trustee shall be entitled to recover such replacement Note (or such payment)
from the Person to whom it was delivered or any Person taking such replacement
Note from such Person to whom such replacement Note was delivered or any
assignee of such Person, except a protected purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in
connection therewith.
Upon the issuance of any replacement Note under this Section,
the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees, expenses
and indemnities of the Indenture Trustee) connected therewith.
15
Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.07. Persons Deemed Owners. Prior to due presentment
for registration of transfer of any Note, the Issuer, the Indenture Trustee and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name any Note is registered (as of the day of determination) as the owner of
such Note for the purpose of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not such
Note be overdue, and none of the Issuer, the Indenture Trustee or any agent of
the Issuer or the Indenture Trustee shall be affected by notice to the contrary.
Section 2.08. Payment of Principal and Interest; Defaulted
Interest.
(a) The Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes and the Class D
Notes shall accrue interest at the Class A-1 Rate, the Class A-2 Rate, the Class
A-3 Rate, the Class A-4 Rate, the Class B Rate, the Class C Rate and the Class D
Rate, respectively, as set forth in Exhibit A-1, Exhibit A-2, Exhibit A-3,
Exhibit A-4, Exhibit B, Exhibit C and Exhibit D, respectively, and such interest
shall be payable on each Payment Date as specified therein, subject to Section
3.01. Any installment of interest or principal payable on a Note that is
punctually paid or duly provided for by the Issuer on the applicable Payment
Date shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date by check mailed first-class
postage prepaid to such Person's address as it appears on the Note Register on
such Record Date, except that, unless Definitive Notes have been issued pursuant
to Section 2.12, with respect to Notes registered on the Record Date in the name
of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payment shall be made by wire transfer in immediately available funds to
the account designated by such nominee, if an account is so designated;
provided, however, that the final installment of principal payable with respect
to such Note on a Payment Date or on the related Stated Maturity Date (including
the Redemption Price for any Note called for redemption pursuant to Section
10.01) shall be payable as provided in paragraph (b) below. The funds
represented by any such checks returned undelivered shall be held in accordance
with Section 3.03.
(b) The principal of each Note shall be payable in
installments on each Payment Date as provided in Section 3.01 hereof and the
forms of the Notes set forth in Exhibit A-1, Exhibit A-2, Exhibit A-3, Exhibit
A-4, Exhibit B, Exhibit C and Exhibit D. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes may be declared immediately due and
payable, if not previously paid, in the manner provided in Section 5.02 on any
date on which an Event of Default shall have occurred and be continuing, by the
Indenture Trustee or the Indenture Trustee acting at the direction of the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Controlling Class. All principal payments
16
on each Class of Notes shall be made pro rata to the Noteholders of the related
Class entitled thereto. Upon written notice thereof, the Indenture Trustee shall
notify the Person in whose name a Note is registered at the close of business on
the Record Date preceding the Payment Date on which the Issuer expects the final
installment of principal of and interest on such Note to be paid. Such notice
shall specify that such final installment will be payable only upon presentation
and surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment. Notices in connection
with redemptions of Notes shall be mailed to Noteholders as provided in Section
10.02.
(c) If the Issuer defaults in a payment of interest on the
Notes, the Issuer shall pay defaulted interest (plus interest on such defaulted
interest to the extent lawful) at the applicable Interest Rate in any lawful
manner on the next Payment Date.
Section 2.09. Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder that the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Notes may be held or disposed of by the
Indenture Trustee in accordance with its standard retention or disposal policy
as in effect at the time unless the Issuer shall direct by an Issuer Order that
they be destroyed or returned to it; provided, that such Issuer Order is timely
and the Notes have not been previously disposed of by the Indenture Trustee.
Section 2.10. Book-Entry Notes. The Notes, upon original
issuance, will be issued in the form of typewritten Notes representing the
Book-Entry Notes, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Issuer. The Book-Entry Notes shall be
registered initially on the Note Register in the name of Cede & Co., the nominee
of the initial Clearing Agency, and no Owner thereof will receive a Definitive
Note representing such Note Owner's interest in such Note, except as provided in
Section 2.12. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to such Note Owners pursuant to Section
2.12:
(i) the provisions of this Section shall be in full
force and effect;
(ii) the Note Registrar and the Indenture Trustee
shall be entitled to deal with the Clearing Agency for all
purposes of this Indenture (including the payment of principal
of and interest on the Notes and the giving of instructions or
directions hereunder) as the sole holder of the Notes, and
shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this
Section conflict with any other provisions of this Indenture,
the provisions of this Section shall control;
(iv) the rights of Note Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements
17
between such Note Owners and the Clearing Agency or the
Clearing Agency Participants pursuant to the Note Depository
Agreement. Unless and until Definitive Notes are issued
pursuant to Section 2.12, the initial Clearing Agency will
make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal of
and interest on the Notes to such Clearing Agency
Participants; and
(v) whenever this Indenture requires or permits
actions to be taken based upon instructions or directions of
Holders of Notes evidencing a specified percentage of the
Outstanding Amount of the Controlling Class of Notes, the
Clearing Agency shall be deemed to represent such percentage
only to the extent that it has received instructions to such
effect from Note Owners or Clearing Agency Participants owning
or representing, respectively, such required percentage of the
beneficial interest in the Notes and has delivered such
instructions to the Indenture Trustee.
Section 2.11. Notices to Clearing Agency. Whenever a notice or
other communication to the Noteholders is required under this Indenture, unless
and until Definitive Notes shall have been issued to such Note Owners pursuant
to Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to such Note Owners.
Section 2.12. Definitive Notes. If (i) the Administrator
advises the Indenture Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Notes and the Administrator is unable to locate a qualified successor
or (ii) after the occurrence of an Event of Default or a Servicer Termination
Event, Owners of the Book-Entry Notes representing beneficial interests
aggregating at least a majority of the Outstanding Amount of such Notes advise
the Clearing Agency in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interests of such Note
Owners, then the Clearing Agency shall notify all Note Owners, the Administrator
and the Indenture Trustee of the occurrence of any such event and of the
availability of Definitive Notes to Note Owners requesting the same. Upon
surrender to the Indenture Trustee of the typewritten Notes representing the
Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee upon an Issuer
Order shall authenticate the Definitive Notes in accordance with the written
instructions of the Clearing Agency. None of the Issuer, the Note Registrar, the
Administrator or the Indenture Trustee shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Notes, the
Indenture Trustee shall recognize the Holders of the Definitive Notes as
Noteholders.
Section 2.13. Tax Treatment. The Issuer has entered into this
Indenture, and the Notes will be issued, with the intention that, for purposes
of federal and state income tax, franchise tax and any other tax measured in
whole or in part by income, the Notes will be characterized as indebtedness
secured by the Trust Estate. The Issuer, by entering into this Indenture, and
each Noteholder, by its acceptance of a Note (and each Note Owner by its
acceptance of an interest in the applicable Book-Entry Note), agree to treat the
Notes for such purposes as indebtedness.
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ARTICLE III.
COVENANTS
Section 3.01. Payment of Principal and Interest. The Issuer
will duly and punctually pay the principal of and interest, if any, on the Notes
in accordance with the terms of the Notes and this Indenture. Without limiting
the foregoing, subject to Section 8.02(c), on each Payment Date, the Issuer will
cause to be distributed all amounts deposited pursuant to the Sale and Servicing
Agreement into the Note Distribution Account (i) for the benefit of the Class
A-1 Notes, to the Class A-1 Noteholders, (ii) for the benefit of the Class A-2
Notes, to the Class A-2 Noteholders, (iii) for the benefit of the Class A-3
Notes, to the Class A-3 Noteholders, (iv) for the benefit of the Class A-4
Notes, to the Class A-4 Noteholders, (v) for the benefit of the Class B Notes,
to the Class B Noteholders, (vi) for the benefit of the Class C Notes, to the
Class C Noteholders and (vii) for the benefit of the Class D Notes to the Class
D Noteholders. Amounts properly withheld under the Code by any Person from a
payment to any Noteholder of interest and/or principal shall be considered as
having been paid by the Issuer to such Noteholder for all purposes of this
Indenture.
Section 3.02. Maintenance of Office or Agency. The Issuer will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Notes may be surrendered for registration of transfer or exchange, and
where notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. Such office will initially be located at Citibank,
N.A., 111 Wall Street, 15th Floor Window, New York, New York 10005, Attention:
Structured Finance Agency and Trust-Hyundai Auto Receivables Trust 2004-A. The
Issuer will give prompt written notice to the Indenture Trustee of the location,
and of any change in the location, of any such office or agency. If at any time
the Issuer shall fail to maintain any such office or agency or shall fail to
furnish the Indenture Trustee with the address thereof, such surrenders, notices
and demands may be made or served at the Corporate Trust Office, and the Issuer
hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
Section 3.03. Money for Payments To Be Held in Trust. All
payments of amounts due and payable with respect to any Notes that are to be
made from amounts withdrawn from the Collection Account, the Note Distribution
Account and the Reserve Account shall be made on behalf of the Issuer by the
Indenture Trustee or by another Paying Agent, and no amounts so withdrawn from
the Collection Account, the Note Distribution Account or the Reserve Account for
payments of Notes shall be paid over to the Issuer except as provided in this
Section.
On or before the Business Day preceding each Payment Date and
Redemption Date, the Issuer shall deposit or cause to be deposited in the Note
Distribution Account an aggregate sum sufficient to pay the amounts then
becoming due under the Notes, such sum to be held in trust for the benefit of
the Persons entitled thereto, and (unless the Paying Agent is the Indenture
Trustee) shall promptly notify the Indenture Trustee of its action or failure so
to act.
The Issuer will cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall
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agree with the Indenture Trustee (and if the Indenture Trustee acts as Paying
Agent, it hereby so agrees), subject to the provisions of this Section, that
such Paying Agent will:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default
by the Issuer (or any other obligor on the Notes) of which it
has actual knowledge in the making of any payment required to
be made with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in
trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and
forthwith pay to the Indenture Trustee all sums held by it in
trust for the payment of Notes if at any time it ceases to
meet the standards required to be met by a Paying Agent at the
time of its appointment; and
(v) comply with all requirements of the Code with
respect to the withholding from any payments made by it on any
Notes of any applicable withholding taxes imposed thereon
(including retaining any Internal Revenue Service forms or
certifications establishing exemption therefrom as required by
law) and with respect to any applicable reporting requirements
in connection with any payments made by it on any Notes and
any withholding of taxes therefrom.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds,
any money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
two years after such amount has become due and payable shall be discharged from
such trust and be paid upon Issuer Request to the Issuer; and the Holder of such
Note shall thereafter, as an unsecured general creditor, look only to the Issuer
for payment thereof (but only to the extent of the amounts so paid to the
Issuer), and all liability of the Indenture Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; provided, however, that the
Indenture Trustee or such Paying Agent, before being required to make any such
repayment, shall at the expense and direction of the Issuer cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be
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repaid to the Issuer. The Indenture Trustee shall also adopt and employ, at the
expense and direction of the Issuer, any other reasonable means of notification
of such repayment (including, but not limited to, mailing notice of such
repayment to Holders whose Notes have been called but have not been surrendered
for redemption or whose right to or interest in moneys due and payable but not
claimed is determinable from the records of the Indenture Trustee or of any
Paying Agent, at the last address of record for each such Holder).
Section 3.04. Existence. Except as otherwise permitted by the
provisions of Section 3.10, the Issuer will keep in full effect its existence,
rights and franchises as a statutory trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
Section 3.05. Protection of Trust Estate. The Issuer will from
time to time execute and deliver all such supplements and amendments hereto and
all such financing statements, continuation statements, instruments of further
assurance and other instruments, and will take such other action necessary or
advisable to:
(i) maintain or preserve the lien and security
interest (and the priority thereof) of this Indenture or carry
out more effectively the purposes hereof;
(ii) perfect, publish notice of or protect the
validity of any Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate
and the rights of the Indenture Trustee and the Noteholders in
such Trust Estate against the claims of all persons and
parties.
The Issuer hereby designates the Indenture Trustee, as its
agent and attorney-in-fact, to execute upon an Issuer Order any financing
statement, continuation statement or other instrument required to be executed
pursuant to this Section 3.05.
Section 3.06. Opinions as to Trust Estate.
(a) On the Closing Date, the Issuer shall cause to be
furnished to the Indenture Trustee an Opinion of Counsel either stating that, in
the opinion of such counsel, such action has been taken with respect to the
recording and filing of this Indenture, any indentures supplemental hereto, and
any other requisite documents, and with respect to the filing of any financing
statements and continuation statements, as are necessary to perfect and make
effective the lien and security interest of this Indenture and reciting the
details of such action, or stating that, in the opinion of such counsel, no such
action is necessary to make such lien and security interest effective.
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(b) On or before April 30 in each calendar year, beginning in
2005, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been taken
with respect to the recording, filing, re-recording and re-filing of this
Indenture, any indentures supplemental hereto and any other requisite documents
and with respect to the execution and filing of any financing statements and
continuation statements as is necessary to maintain the lien and security
interest created by this Indenture and reciting the details of such action, or
stating that in the opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of Counsel shall also
describe the recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents and the
execution and filing of any financing statements and continuation statements
that will, in the opinion of such counsel, be required to maintain the lien and
security interest of this Indenture until April 30 in the following calendar
year.
Section 3.07. Performance of Obligations; Servicing of
Receivables.
(a) (a) The Issuer will not take any action and will use its
reasonable best efforts not to permit any action to be taken by others that
would release any Person from any of such Person's material covenants or
obligations under any instrument or agreement included in the Trust Estate or
that would result in the amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any such instrument or
agreement, except as expressly provided in this Indenture, the Sale and
Servicing Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons with
notification to the Rating Agencies to assist it in performing its duties under
this Indenture, and any performance of such duties by a Person identified to the
Indenture Trustee in an Officer's Certificate of the Issuer shall be deemed to
be action taken by the Issuer. Initially, the Issuer has contracted with the
Servicer and the Administrator to assist the Issuer in performing its duties
under this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Trust Estate, including but
not limited to filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of this Indenture and
the Sale and Servicing Agreement in accordance with and within the time periods
provided for herein and therein. Except as otherwise expressly provided therein,
the Issuer shall not waive, amend, modify, supplement or terminate any Basic
Document or any provision thereof without the consent of either the Indenture
Trustee or the Holders of at least a majority of the Outstanding Amount of the
Notes.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Termination Event under the Sale and Servicing Agreement, the Issuer
shall promptly notify the Indenture Trustee and the Rating Agencies thereof, and
shall specify in such notice the action, if any, the Issuer is taking with
respect to such default.
(e) [Reserved]
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(f) Upon any termination of the Servicer's rights and powers
pursuant to the Sale and Servicing Agreement, the Issuer shall promptly notify
the Indenture Trustee thereof. As soon as a successor servicer (a "Successor
Servicer") is appointed, the Issuer shall notify the Indenture Trustee in
writing of such appointment, specifying in such notice the name and address of
such Successor Servicer.
(g) Without limitation of the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the rights
of the Indenture Trustee hereunder, the Issuer agrees (i) except to the extent
otherwise provided in any Basic Documents, that it will not, without the prior
written consent of the Indenture Trustee acting at the direction of the Holders
of at least a majority in Outstanding Amount of the Notes, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment, modification,
supplement, termination, waiver or surrender of, the terms of any Collateral
(except to the extent otherwise provided in the Sale and Servicing Agreement) or
the Basic Documents, or waive timely performance or observance by the Servicer
or the Seller under the Sale and Servicing Agreement; and (ii) that any such
amendment shall not (A) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required to be made
for the benefit of the Noteholders or (B) reduce the aforesaid percentage of the
Notes that is required to consent to any such amendment, without the consent of
the Holders of all Outstanding Notes. If the Indenture Trustee acting at the
direction of such Holders agrees to any such amendment, modification, supplement
or waiver, the Indenture Trustee agrees, promptly following a request by the
Issuer to do so, to execute and deliver, at the Issuer's own expense, such
agreements, instruments, consents and other documents as the Issuer may deem
necessary or appropriate in the circumstances.
Section 3.08. Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except to the extent as expressly permitted by
this Indenture or the Sale and Servicing Agreement, sell,
transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, including those included
in the Trust Estate, unless directed to do so by the Indenture
Trustee acting on direction of at least a majority in
Outstanding Amount of the Controlling Class given pursuant to
this Agreement;
(ii) claim any credit on, or make any deduction from
the principal or interest payable in respect of, the Notes
(other than amounts properly withheld from such payments under
the Code) or assert any claim against any present or former
Noteholder by reason of the payment of the taxes levied or
assessed upon any part of the Trust Estate; or
(iii) (A) permit the validity or effectiveness of
this Indenture to be impaired, or permit the lien of this
Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be released
from any covenants or obligations with respect to the Notes
under this Indenture except as may be expressly permitted
hereby, (B) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien
of this Indenture) to be created on or extend to or otherwise
arise upon or burden the
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Trust Estate or any part thereof or any interest therein or
the proceeds thereof (other than tax liens, mechanics' liens
and other liens that arise by operation of law, in each case
on any of the Financed Vehicles and arising solely as a result
of an action or omission of the related Obligor) or (C) permit
the lien of this Indenture not to constitute a valid first
priority (other than with respect to any such tax, mechanics'
or other lien) security interest in the Trust Estate.
Section 3.09. Annual Statement as to Compliance. The Issuer
will deliver to the Indenture Trustee and the Rating Agencies, within 120 days
after the end of each fiscal year of the Issuer (commencing with the fiscal year
2004), an Officer's Certificate stating, as to the Authorized Officer signing
such Officer's Certificate, that:
(i) a review of the activities of the Issuer during
such year and of its performance under this Indenture has been
made under such Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's
knowledge, based on such review, the Issuer has complied with
all conditions and covenants under this Indenture throughout
such year or, if there has been a default in its compliance
with any such condition or covenant, specifying each such
default known to such Authorized Officer and the nature and
status thereof.
Section 3.10. Issuer May Consolidate, etc., Only on Certain
Terms.
(a) The Issuer shall not consolidate or merge with or
into any other Person, unless:
(i) the Person (if other than the Issuer)
formed by or surviving such consolidation or merger
shall be a Person organized and existing under the
laws of the United States of America or any State and
shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture
Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the
principal of and interest on all Notes and the
performance or observance of every agreement and
covenant of this Indenture on the part of the Issuer
to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall
have occurred and be continuing;
(iii) the Rating Agency Condition shall have
been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion
of Counsel (and shall have delivered copies thereof
to the Indenture Trustee) to the effect that such
transaction will not have any material adverse
federal income tax consequences to the Issuer, any
Noteholder or any Certificateholder;
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(v) any action that is necessary to maintain
the lien and security interest created by this
Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such
consolidation or merger and such supplemental
indenture comply with this Article III and that all
conditions precedent herein provided for relating to
such transaction have been complied with (including
any filing required by the Exchange Act) in all
material respects.
(b) The Issuer shall not convey or transfer any of
its properties or assets, including those included in the
Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or
transfer the properties and assets of the Issuer the
conveyance or transfer of which is hereby restricted
(A) shall be a United States citizen or a Person
organized and existing under the laws of the United
States of America or any State, (B) expressly
assumes, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in
form satisfactory to the Indenture Trustee, the due
and punctual payment of the principal of and interest
on all Notes and the performance or observance of
every agreement and covenant of this Indenture on the
part of the Issuer to be performed or observed, all
as provided herein, (C) expressly agrees by means of
such supplemental indenture that all right, title and
interest so conveyed or transferred shall be subject
and subordinate to the rights of Holders of the
Notes, (D) unless otherwise provided in such
supplemental indenture, expressly agrees to
indemnify, defend and hold harmless the Issuer and
the Indenture Trustee against and from any loss,
liability or expense arising under or related to this
Indenture and the Notes and (E) expressly agrees by
means of such supplemental indenture that such Person
(or, if a group of Persons, one specified Person)
shall make all filings with the Commission (and any
other appropriate Person) required by the Exchange
Act in connection with the Notes;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall
have occurred and be continuing;
(iii) the Rating Agency Condition shall have
been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion
of Counsel which may not be in-house counsel (and
shall have delivered copies thereof to the Indenture
Trustee) to the effect that such transaction will not
have any material adverse federal income tax
consequences to the Issuer, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain
the lien and security interest created by this
Indenture shall have been taken; and
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(vi) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such conveyance
or transfer and such supplemental indenture comply
with this Article III and that all conditions
precedent herein provided for relating to such
transaction have been complied with (including any
filing required by the Exchange Act) in all material
respects.
Section 3.11. Successor or Transferee.
(a) (a) Upon any consolidation or merger of the Issuer in
accordance with Section 3.10(a), the Person formed by or surviving such
consolidation or merger (if other than the Issuer) shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the
Issuer herein.
(b) Upon a conveyance or transfer of all the assets and
properties of the Issuer pursuant to Section 3.10(b), Hyundai Auto Receivables
Trust 2004-A will be released from every covenant and agreement of this
Indenture to be observed by or performed on the part of the Issuer with respect
to the Notes immediately upon the delivery of written notice to the Indenture
Trustee stating that Hyundai Auto Receivables Trust 2004-A is to be so released.
Section 3.12. No Other Business. The Issuer shall not engage
in any business other than financing, purchasing, owning, selling and managing
the Receivables in the manner contemplated by this Indenture and the Basic
Documents and any activities incidental thereto.
Section 3.13. No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
Section 3.14. Servicer's Obligations. The Issuer shall cause
the Servicer to comply with Sections 4.09, 4.10, 4.13 and Article VII of the
Sale and Servicing Agreement.
Section 3.15. Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by the Trust Agreement, the Sale and
Servicing Agreement or this Indenture, the Issuer shall not make any loan or
advance or credit to, or guarantee (directly or indirectly or by an instrument
having the effect of assuring another's payment or performance on any obligation
or capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the obligations,
stocks or dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or any
other interest in, or make any capital contribution to, any Person.
Section 3.16. Capital Expenditures. The Issuer shall not make
any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
Section 3.17. Removal of Administrator. So long as any Notes
are Outstanding, the Issuer shall not remove the Administrator unless the Rating
Agency Condition shall have been satisfied in connection with such removal and
the Indenture Trustee receives written notice of the foregoing and consents
thereto.
Section 3.18. Restricted Payments. Except with respect to the
proceeds from issuance of the Notes, the Issuer shall not, directly or
indirectly, (i) pay any dividend or make
26
any distribution (by reduction of capital or otherwise), whether in cash,
property, securities or a combination thereof, to the Owner Trustee or any owner
of a beneficial interest in the Issuer or otherwise with respect to any
ownership or equity interest or security in or of the Issuer or to the Servicer,
(ii) redeem, purchase, retire or otherwise acquire for value any such ownership
or equity interest or security or (iii) set aside or otherwise segregate any
amounts for any such purpose; provided, however, that the Issuer may make, or
cause to be made, distributions as contemplated by, and to the extent funds are
available for such purpose under, the Sale and Servicing Agreement, this
Indenture or the Trust Agreement. The Issuer will not, directly or indirectly,
make payments to or distributions from the Note Distribution Account, the
Collection Account, or the Reserve Account except in accordance with this
Indenture and the Basic Documents.
Section 3.19. Notice of Events of Default. The Issuer shall
give the Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder, and of each default on the part of the Servicer or
the Seller of its obligations under the Sale and Servicing Agreement.
Section 3.20. Further Instruments and Acts. Upon request of
the Indenture Trustee, the Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes except
as to (i) rights of registration of transfer and exchange, (ii) substitution of
mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon, (iv) Sections 3.03,
3.04, 3.05, 3.08, 3.10, 3.11, 3.12, 3.13, 3.15, 3.16 and 3.18, (v) the rights,
obligations and immunities of the Indenture Trustee hereunder (including the
rights of the Indenture Trustee under Section 6.07 and the obligations of the
Indenture Trustee under Section 4.02) and (vi) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes, when
(A) either:
1. all Notes theretofore authenticated and
delivered (other than (i) Notes that have been
destroyed, lost or stolen and that have been replaced
or paid as provided in Section 2.06 and (ii) Notes
for the payment of which money has theretofore been
deposited in trust or segregated and held in trust by
the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section
3.03), have been delivered to the Indenture Trustee
for cancellation; or
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2. all Notes not theretofore delivered to the
Indenture Trustee for cancellation
a. have become due and payable,
b. will become due and payable at the Class D
Maturity Date within one year or
c. are to be called for redemption within one
year under arrangements satisfactory to the Indenture
Trustee for the giving of notice of redemption by the
Indenture Trustee in the name, and at the expense, of
the Issuer;
and the Issuer, in the case of a, b, or c above, has irrevocably deposited or
caused to be irrevocably deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United States of America (that
will mature prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Indenture Trustee for cancellation
when due to the applicable Stated Maturity Date or Redemption Date (if Notes
shall have been called for redemption pursuant to Section 10.01), as the case
may be;
(B) the Issuer has paid or caused to be paid all
other sums payable hereunder by the Issuer including, but not
limited to, fees, reimbursements, indemnities and expenses due
to the Indenture Trustee; and
(C) the Issuer has delivered to the Indenture Trustee
an Officer's Certificate, an Opinion of Counsel and (if
required by the TIA or the Indenture Trustee) an Independent
Certificate from a firm of certified public accountants, each
meeting the applicable requirements of Section 11.01(a) and,
subject to Section 11.02, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Section 4.02. Application of Trust Money. All moneys deposited
with the Indenture Trustee pursuant to Section 4.01 hereof shall be held in
trust and applied by it in accordance with the provisions of the Notes and this
Indenture to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Holders of the particular Notes for the
payment or redemption of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys need not be segregated from other funds except to the
extent required herein, in the Sale and Servicing Agreement or by law.
Section 4.03. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
the Notes, all moneys then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes shall,
upon written demand of the Issuer, be paid to the Indenture Trustee to be held
and applied according to Section 3.03; and thereupon, such Paying Agent shall be
released from all further liability with respect to such moneys.
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Section 4.04. Release of Collateral. Subject to Section 11.01
and the terms of the Basic Documents, the Indenture Trustee shall release
property from the lien of this Indenture only upon receipt by it of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and
Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or
an Opinion of Counsel in lieu of such Independent Certificates to the effect
that the TIA does not require any such Independent Certificates.
ARTICLE V.
REMEDIES
Section 5.01. Events of Default. "Event of Default", wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest on any
Note of the Controlling Class when the same becomes due and
payable, and such default shall continue for a period of
thirty-five (35) days;
(ii) default in the payment of the principal of or
any installment of the principal of any Note on its related
Stated Maturity Date;
(iii) default in the observance or performance of any
representation, warranty, covenant or agreement of the Issuer
made in this Indenture (other than a covenant or agreement, a
default in the observance or performance of which is elsewhere
in this Section specifically dealt with) or in any certificate
or other writing delivered pursuant hereto or in connection
herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and
such default shall continue or not be cured, or the
circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have
been eliminated or otherwise cured, for a period of thirty
(30) days after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee or to
the Issuer and the Indenture Trustee by the Holders of at
least 25% of the Outstanding Amount of the Controlling Class
of Notes, a written notice specifying such default or
incorrect representation or warranty and requiring it to be
remedied and stating that such notice is a notice of Default
hereunder;
(iv) the filing of a decree or order for relief by a
court having jurisdiction in the premises in respect of the
Issuer or any substantial part of the Trust Estate in an
involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter
in effect, or the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official
of the Issuer or for any substantial part of the Trust Estate,
or the ordering of the winding-up or liquidation of the
Issuer's affairs, and such decree
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or order shall remain unstayed and in effect for a period of
sixty (60) consecutive days; or
(v) the commencement by the Issuer of a voluntary
case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or
the consent by the Issuer to the entry of an order for relief
in an involuntary case under any such law, or the consent by
the Issuer to the appointment of or taking of possession by a
receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any
substantial part of the Trust Estate, or the making by the
Issuer of any general assignment for the benefit of creditors,
or the failure by the Issuer generally to pay its debts as
such debts become due, or the taking of any action by the
Issuer in furtherance of any of the foregoing.
The Issuer shall promptly deliver to the Indenture Trustee
written notice in the form of an Officer's Certificate of any event that with
the giving of notice and the lapse of time would become an Event of Default
under clause (iii), its status and what action the Issuer is taking or proposes
to take with respect thereto.
Section 5.02. Acceleration of Maturity; Rescission and
Annulment.
(a) If an Event of Default shall occur and be continuing, then
and in every such case the Indenture Trustee may, or the Indenture Trustee if so
directed in writing by the Holders of Notes representing not less than a
majority of the Outstanding Amount of the Controlling Class of Notes shall,
declare all the Notes to be then immediately due and payable, by a notice in
writing to the Issuer (and to the Indenture Trustee if given by Noteholders),
and upon any such declaration the Outstanding Amount of such Notes, together
with accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable.
(b) If an Event of Default under this Indenture shall have
occurred, the Indenture Trustee in its discretion may, or if so requested in
writing by Holders of Notes representing at least a majority of the Outstanding
Amount of the Controlling Class of Notes, shall, declare by written notice to
the Issuer all of the Notes to be immediately due and payable, and upon any such
declaration, the Outstanding Amount of the Notes, together with accrued interest
thereon through the date of acceleration, shall become immediately due and
payable as provided in the Notes set forth in Exhibit A-1, Exhibit A-2, Exhibit
A-3, Exhibit A-4, Exhibit B, Exhibit C and Exhibit D. Notwithstanding anything
to the contrary in this paragraph (b), if an Event of Default specified in
clauses (iv) or (v) of Section 5.01 shall have occurred and be continuing the
Notes shall become immediately due and payable at par, together with accrued
interest thereon.
(c) At any time after such declaration of acceleration of
maturity has been made and before a judgment or decree for payment of the money
due has been obtained by the Indenture Trustee as hereinafter in this Article V
provided, the Holders of Notes representing a majority of the Outstanding Amount
of the Controlling Class of Notes, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
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(i) the Issuer has paid or deposited with the
Indenture Trustee a sum sufficient to pay:
(A) all payments of principal of and interest
on the Notes and all other amounts that would then be due
hereunder or upon such Notes if the Event of Default giving
rise to such acceleration had not occurred; and
(B) all sums paid by the Indenture Trustee
hereunder and the reasonable compensation, indemnity,
reimbursement, expenses and disbursements of the Indenture
Trustee and its agents and counsel and the reasonable
compensation, expenses and disbursements of the Owner Trustee
and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment
of the principal of the Notes that has become due solely by
such acceleration, have been cured or waived as provided in
Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee.
(a) The Issuer covenants that if (i) a default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of thirty-five (35) days or, (ii) default is
made in the payment of the principal of or any installment of the principal of
any Note when the same becomes due and payable, the Issuer will, upon demand of
the Indenture Trustee, pay to it, for the benefit of the Holders of the Notes,
the entire amount then due and payable on such Notes in respect of principal and
interest, with interest on the overdue principal and, to the extent payment at
such rate of interest shall be legally enforceable, on overdue installments of
interest at the related Interest Rate and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses and disbursements of the
Indenture Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as trustee
of an express trust, may institute a Proceeding for the collection of the sums
so due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against the Issuer or other obligor on such
Notes and collect in the manner provided by law out of the Trust Estate or the
property of any other obligor on such Notes, wherever situated, the moneys
adjudged or decreed to be payable.
(c) If an Event of Default occurs, the Indenture Trustee may,
as more particularly provided in Section 5.04, in its discretion, or shall, at
the directions of the Holders of at least a majority of the Outstanding Amount
of the Controlling Class of Notes, proceed to protect and enforce its rights and
the rights of the Noteholders, by such appropriate Proceedings as the Indenture
Trustee or the Indenture Trustee at the direction of the Holders of at least a
majority of the Outstanding Amount of the Controlling Class of Notes shall
reasonably deem most effective to protect and enforce any such rights, whether
for the specific enforcement of any
31
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or
any other obligor on the Notes or any Person having or claiming an ownership
interest in the Trust Estate, Proceedings under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, or liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable Proceedings relative to
the Issuer or other obligor on the Notes, or to the creditors or property of the
Issuer or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the
entire amount of principal and interest owing and unpaid in
respect of the Notes and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each
predecessor Indenture Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of reasonable
out-of-pocket expenses and liabilities incurred, by the
Indenture Trustee and each predecessor Indenture Trustee,
except as a result of negligence or bad faith) and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law or
regulation, to vote on behalf of the Holders of Notes in any
election of a trustee, a standby trustee or a Person
performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute all amounts received with respect to the claims of
the Noteholders and of the Indenture Trustee on their behalf;
and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have
the claims of the Indenture Trustee or the Holders of Notes
allowed in any Proceedings relative to the Issuer, its
creditors or its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses,
reimbursements, indemnities and liabilities incurred by the Indenture Trustee
and each predecessor Indenture Trustee except as a result of negligence or bad
faith.
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(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
Proceedings relative thereto, and any such Proceedings instituted by the
Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Holders of the Notes, and it shall
not be necessary to make any Noteholder a party to any such Proceedings.
Section 5.04. Remedies; Priorities.
(a) If an Event of Default shall have occurred and be
continuing, the Indenture Trustee may do one or more of the following (subject
to Section 5.05):
(i) institute Proceedings in its own name and as
trustee of an express trust for the collection of all amounts
then payable on the Notes or under this Indenture with respect
thereto, whether by declaration or otherwise, enforce any
judgment obtained and collect from the Issuer and any other
obligor on such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect
to the Trust Estate;
(iii) exercise any remedies of a secured party under
the UCC and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and
the Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or
rights or interest therein, at one or more public or private
sales called and conducted in any manner permitted by law;
provided that Indenture Trustee may not sell or otherwise liquidate the Trust
Estate following an Event of Default unless:
(A) the Event of Default is of the type
described in Section 5.01(i) or (ii); or
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(B) with respect to an Event of Default
described in Section 5.01(iii):
(i) the Noteholders of all Outstanding Notes and the
Certificateholders of all outstanding Certificates consent
thereto; or
(ii) the proceeds of such sale or liquidation are
sufficient to pay in full the principal of and accrued
interest on the Outstanding Notes and outstanding
Certificates.
(C) with respect to any Event of Default
described in Section 5.01 (iv) and (v):
(i) the Noteholders of Notes evidencing 100% of the
principal amount of the Controlling Class consent thereto; or
(ii) the proceeds of such sale or liquidation are
sufficient to pay in full the principal of and the accrued
interest on the Outstanding Notes; or
(iii) the Indenture Trustee
(x) determines (but shall have no obligation to
make such determination) that the Trust Estate
will not continue to provide sufficient funds
for the payment of principal of and interest on
the Notes as they would have become due if the
Notes had not been declared due and payable;
and
(y) the Indenture Trustee obtains the consent
of Noteholders of Notes evidencing not less
than 66 2/3% of the principal amount of the
Controlling Class; or
In determining such sufficiency or insufficiency with respect
to clause 5.04(a)(iv)(B)(ii) and 5.04(a)(iv)(C)(ii) or 5.04(a)(iv)(C)(iii)(x)
above, Indenture Trustee may, but need not, obtain at the Issuer's expense, and
rely upon an opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
(b) (i) Notwithstanding the provisions of Section 8.02,
following the occurrence and during the continuation of an Event of Default
specified in Section 5.01(i), 5.01(ii), 5.01(iv) or 5.01(v) which has resulted
in an acceleration of the Notes (or following the occurrence of any such event
after an Event of Default specified in Section 5.01(iii) has occurred and the
Trust Estate has been liquidated), if the Indenture Trustee collects any money
or property, it shall pay out such money or property (and other amounts
including amounts held on deposit in the Reserve Account) held as Collateral for
the benefit of the Noteholders, net of liquidation costs associated with the
sale of the Trust Estate, in the following order:
FIRST: to the Indenture Trustee, any amounts due under Section
6.07 to the extent that such amounts were not previously paid by the Servicer;
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SECOND: to the Servicer for due and unpaid Servicing Fees and
Advances not previously reimbursed;
THIRD: to Class A Noteholders for amounts due and unpaid on
the Class A Notes in respect of interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class A
Notes in respect of interest;
FOURTH: to Holders of the Class A-1 Notes for amounts due and
unpaid on the Class A-1 Notes in respect of principal, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Class A-1 Notes in respect of principal, until the Outstanding Amount of the
Class A-1 Notes is reduced to zero;
FIFTH: to Holders of the Class A-2 Notes, Class A-3 Notes and
Class A-4 Notes for amounts due and unpaid on the Class A-2 Notes, Class A-3
Notes and Class A-4 Notes in respect of principal, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Class
A-2 Notes, Class A-3 Notes and Class A-4 Notes in respect of principal, until
the Outstanding Amount of the Class A-2 Notes, Class A-3 Notes and Class A-4
Notes is reduced to zero;
SIXTH: to Holders of the Class B Notes for amounts due and
unpaid on the Class B Notes in respect of interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Class B
Notes in respect of interest;
SEVENTH: to Holders of the Class B Notes for amounts due and
unpaid on the Class B Notes in respect of principal, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Class B
Notes in respect of principal, until the Outstanding Amount of the Class B Notes
is reduced to zero;
EIGHTH: to Holders of the Class C Notes for amounts due and
unpaid on the Class C Notes in respect of interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Class C
Notes in respect of interest;
NINTH: to Holders of the Class C Notes for amounts due and
unpaid on the Class C Notes in respect of principal, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Class C
Notes in respect of principal, until the Outstanding Amount of the Class C Notes
is reduced to zero;
TENTH: to Holders of the Class D Notes for amounts due and
unpaid on the Class D Notes in respect of interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Class D
Notes in respect of interest;
ELEVENTH: to Holders of the Class D Notes for amounts due and
unpaid on the Class D Notes in respect of principal, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Class D
Notes in respect of principal, until the Outstanding Amount of the Class D Notes
is reduced to zero;
TWELFTH: to the Certificate Distribution Account, for
distribution to the Certificateholders.
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The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section. At least fifteen (15) days
before such record date, the Issuer shall mail to each Noteholder and the
Indenture Trustee a notice that states the record date, the payment date and the
amount to be paid.
(ii) Except as otherwise provided in Section 5.04(b)(i), the
Indenture Trustee shall make all payments and distributions of the
Trust Estate in accordance with Section 8.02.
Section 5.05. Optional Preservation of the Receivables. If the Notes
have been declared to be due and payable under Section 5.02 following an Event
of Default, and such declaration and its consequences have not been rescinded
and annulled, the Indenture Trustee may, but need not, elect to maintain
possession of the Trust Estate. It is the desire of the parties hereto and the
Noteholders that there be at all times sufficient funds for the payment of
principal of and interest on the Notes, and the Indenture Trustee shall take
such desire into account when determining whether or not to maintain possession
of the Trust Estate. In determining whether or not to maintain possession of the
Trust Estate, the Indenture Trustee may, at the expense of the Issuer and paid
in the priority set forth in Section 5.05(b) of the Sale and Servicing
Agreement, but need not, obtain and conclusively rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
Section 5.06. Limitation of Suits. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Event of Default arises from the Servicer's failure to
remit payments when due or the Holders of not less than 25% of the
Outstanding Amount of the Controlling Class of Notes have made written
request to the Indenture Trustee to institute such Proceeding in
respect of such Event of Default in its own name as Indenture Trustee
hereunder;
(iii) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities that
may be incurred in complying with such request;
(iv) the Indenture Trustee for sixty (60) days after its receipt of
such notice, request and offer of indemnity has failed to institute
such Proceedings; and
(v) no direction inconsistent with such written request has been
given to the Indenture Trustee during such sixty (60) day period by the
Holders of a majority of the Outstanding Amount of the Controlling
Class of Notes.
It is understood and intended that no one or more Holders of Notes
shall have any right in any manner whatsoever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of Notes or to obtain or to seek to
36
obtain priority or preference over any other Holders or to enforce any right
under this Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of Notes
pursuant to this Section, each representing less than a majority of the
Outstanding Amount of the Controlling Class of Notes, the Indenture Trustee
shall act at the direction of the group representing the greater percentage of
the Outstanding Amount of Notes and if there is no such group then in its sole
discretion may determine what action, if any, shall be taken, notwithstanding
any other provisions of this Indenture.
Section 5.07. Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Note on or
after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
Section 5.08. Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
Section 5.09. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.10. Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee, or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or the
Noteholders, as the case may be.
Section 5.11. Control by the Controlling Class of Noteholders. The
Holders of a majority of the Outstanding Amount of the Controlling Class of
Notes shall have the right to direct the time, method and place of conducting
any Proceeding for any remedy available to the
37
Indenture Trustee with respect to the Notes or exercising any trust or power
conferred on the Indenture Trustee; provided that:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) subject to the express terms of Section 5.04, any direction to
the Indenture Trustee to sell or liquidate the Trust Estate shall be by
Holders of Notes representing not less than 100% of the Outstanding
Amount of the Controlling Class of Notes;
(iii) if the conditions set forth in Section 5.05 have been
satisfied and the Indenture Trustee elects to retain the Trust Estate
pursuant to such Section, then any written direction to the Indenture
Trustee by Holders of Notes representing less than 100% of the
Outstanding Amount of the Notes to sell or liquidate the Trust Estate
shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action deemed proper
by the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section,
subject to Section 6.01, the Indenture Trustee need not take any action that it
determines might involve it in liability or might materially adversely affect
the rights of any Noteholders not consenting to such action.
Section 5.12. Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.02, the
Holders of Notes of not less than a majority of the Outstanding Amount of the
Controlling Class of Notes may, waive any past Default or Event of Default and
its consequences except a Default (a) in payment of principal of or interest on
any of the Notes or (b) in respect of a covenant or provision hereof that cannot
be modified or amended without the consent of the Holder of each Note. In the
case of any such waiver, the Issuer, the Indenture Trustee and the Holders of
the Notes shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
Section 5.13. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of a Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to
38
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to (a) any suit instituted by
the Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes (or in the case of a right or remedy under this
Indenture which is instituted by the Controlling Class, more than 10% of the
Outstanding Amount of the Controlling Class) or (c) any suit instituted by any
Noteholder for the enforcement of the payment of principal of or interest on any
Note on or after the respective due dates expressed in such Note and in this
Indenture (or, in the case of redemption, on or after the Redemption Date).
Section 5.14. Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 5.15. Action on Notes. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Indenture Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Indenture Trustee against the Issuer or by the
levy of any execution under such judgment upon any portion of the Trust Estate
or upon any of the assets of the Issuer. Any money or property collected by the
Indenture Trustee shall be applied in accordance with Section 5.04(b).
Section 5.16. Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Issuer shall take all such lawful action
as the Indenture Trustee may request to compel or secure the performance and
observance by the Seller or the Servicer, as applicable, of each of their
obligations to the Issuer under or in connection with the Sale and Servicing
Agreement or the Receivables Purchase Agreement, as applicable, and to exercise
any and all rights, remedies, powers and privileges lawfully available to the
Issuer under or in connection with the Sale and Servicing Agreement or the
Receivables Purchase Agreement to the extent and in the manner directed by the
Indenture Trustee, including the transmission of notices of default on the part
of either Seller or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller or the Servicer of each of their obligations under the Sale and Servicing
Agreement and the Receivables Purchase Agreement; provided, however, nothing
herein shall in any way impose on the Indenture Trustee the duty to monitor the
performance of the Seller or the Servicer of any of their liabilities, duties or
obligations under any Basic Document.
(b) If an Event of Default has occurred, the Indenture Trustee may, and
at the direction (which direction shall be in writing) of the Holders of not
less than a majority of the Outstanding Amount of the Controlling Class of Notes
shall, exercise all rights, remedies,
39
powers, privileges and claims of the Issuer against the Seller or the Servicer
under or in connection with the Sale and Servicing Agreement and the Receivables
Purchase Agreement, including the right or power to take any action to compel or
secure performance or observance by the Seller or the Servicer, as the case may
be, of each of their obligations to the Issuer thereunder and to give any
consent, request, notice, direction, approval, extension or waiver under the
Sale and Servicing Agreement and the Receivables Purchase Agreement, as the case
may be, and any right of the Issuer to take such action shall be suspended.
ARTICLE VI.
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing of which a
Responsible Officer of the Indenture Trustee has actual knowledge, the Indenture
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
Except during the continuance of an Event of Default, the Indenture
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Indenture Trustee. In the absence
of bad faith or negligence on its part, the Indenture Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon the face value of the certificates, reports,
resolutions, documents, orders, opinions or other instruments furnished to the
Indenture Trustee and conforming to the requirements of this Indenture;
provided, however, that the Indenture Trustee shall not be responsible for the
accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order or other instrument; however, the Indenture Trustee
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture. If any such instrument is found
not to conform in any material respect to the requirements of this Agreement,
the Indenture Trustee shall notify the Noteholders of such instrument in the
event that the Indenture Trustee, after so requesting, does not receive a
satisfactorily corrected instrument.
(b) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (a) of
this Section;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
40
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to the terms of this Indenture or any
other Basic Documents.
(c) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to this Section.
(d) The Indenture Trustee shall not be liable for indebtedness
evidenced by or arising under any of the Basic Documents, including principal of
or interest on the Notes, or interest on any money received by it except as the
Indenture Trustee may agree in writing with the Issuer.
(e) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(f) No provision of this Indenture shall require the Indenture Trustee
to advance, expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section and to the provisions of the
TIA.
(h) In no event shall the Indenture Trustee be required to perform, or
be responsible for the manner of performance of, any of the obligations of the
Servicer or any other party under the Sale and Servicing Agreement.
(i) The Indenture Trustee shall have no duty (A) to see to any
recording, filing, or depositing of this Indenture or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing of any thereof,
(B) to see to any insurance, or (C) to see to the payment or discharge of any
tax, assessment, or other governmental charge or any lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the Trust
Fund.
The Indenture Trustee, or a Responsible Officer thereof, shall only be
charged with actual knowledge of any default or an Event of Default if a
Responsible Officer actually knows of such default or Event of Default or the
Indenture Trustee receives written notice of such default or Event of Default
from the Issuer, the Servicer or Noteholders owning Notes aggregating not less
than 10% of the Outstanding Amount of the Notes. Notwithstanding the foregoing,
the Indenture Trustee shall not be required to take notice and in the absence of
such actual notice and knowledge, the Indenture Trustee may conclusively assume
that there is no such default or Event of Default.
Section 6.02. Rights of Indenture Trustee.
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(a) The Indenture Trustee may conclusively rely on the face value of
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Indenture Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel from the appropriate
party. The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on an Officer's Certificate or Opinion
of Counsel from the appropriate party. The right of the Indenture Trustee to
perform any discretionary act enumerated in this Indenture or in any Basic
Document shall not be construed as a duty of the Indenture Trustee and the
Indenture Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such discretionary act.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent, attorney or custodian appointed by the Indenture Trustee with due care.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within its
rights or powers; provided, that the Indenture Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult, at the Issuer's expense and paid
in accordance with Section 4.16 of the Sale and Servicing Agreement or, to the
extent not so paid, in accordance with and in the priority set forth in Section
5.05(b) of the Sale and Servicing Agreement, with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) In the event that the Indenture Trustee is also acting as Paying
Agent, Note Registrar or collateral agent, the rights and protections afforded
to the Indenture Trustee pursuant to this Article 6 shall be afforded to such
Paying Agent, Note Registrar or collateral agent.
(g) The Indenture Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Noteholders, pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(h) The right of the Indenture Trustee to perform any discretionary act
enumerated in this Indenture shall not be construed as a duty, and the Indenture
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act; and
(i) The Indenture Trustee shall not be required to give any bond or
surety in respect of the powers granted hereunder.
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Section 6.03. Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or its Affiliates with the same
rights it would have if it were not Indenture Trustee. Any Paying Agent, Note
Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Indenture Trustee must comply with Section 6.11.
Section 6.04. Indenture Trustee's Disclaimer. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, the Trust Estate or the Notes, it shall not be
accountable for the Issuer's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Issuer in the Indenture, any Basic
Document or in any document issued in connection with the sale of the Notes or
in the Notes other than the Indenture Trustee's certificate of authentication.
Section 6.05. Notice of Defaults. If a Default occurs and is continuing
and if it is actually known to a Responsible Officer of the Indenture Trustee,
the Indenture Trustee shall mail to each Noteholder notice of the Default within
thirty (30) days after it occurs. Except in the case of a Default in payment of
principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice to Noteholders if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Noteholders.
Section 6.06. Reports by Indenture Trustee to Holders. Solely from
information provided by the Servicer, the Indenture Trustee shall make available
to each Noteholder such information as may be required to enable such holder to
prepare its federal and state income tax returns.
Section 6.07. Compensation and Indemnity. The Issuer shall cause the
Servicer to pay to the Indenture Trustee from time to time reasonable
compensation for its services. The Indenture Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall cause the Servicer to reimburse the Indenture Trustee for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include but
are not limited to the reasonable out-of-pocket compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. The Issuer shall cause the Servicer to indemnify the
Indenture Trustee against any and all loss, liability or expense (including
attorneys' fees and expenses) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder or
under the Sale and Servicing Agreement or under any other Basic Document or in
connection with the Notes. The Indenture Trustee shall notify the Issuer and the
Servicer promptly of any claim for which it may seek indemnity. Failure by the
Indenture Trustee to so notify the Issuer and the Servicer shall not relieve the
Issuer or the Servicer of its obligations hereunder. The Issuer shall, or shall
cause the Servicer to, defend any such claim, and the Indenture Trustee may have
separate counsel and the Issuer shall, or shall cause the Administrator to, pay
the fees and expenses of such counsel. Neither the Issuer nor the Servicer need
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Indenture Trustee through the Indenture Trustee's own willful
misconduct, negligence or bad faith. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Indenture Trustee be liable for special,
indirect or consequential loss or damage of any kind
43
whatsoever (including but not limited to lost profits), even if the Indenture
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
The Issuer's payment obligations to the Indenture Trustee and the
Administrator's indemnities to the Indenture Trustee pursuant to this Section
shall survive the discharge of this Indenture or the earlier resignation or
removal of the Indenture Trustee. When the Indenture Trustee incurs expenses
after the occurrence of a Default specified in Section 5.01(iv) or (v) with
respect to the Issuer, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
federal or state bankruptcy, insolvency or similar law.
Section 6.08. Replacement of Indenture Trustee. No resignation or
removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.08. The Indenture Trustee
may resign at any time by so notifying the Issuer and each Rating Agency. The
Holders of a majority in Outstanding Amount of the Controlling Class of Notes
may remove the Indenture Trustee by notifying the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property;
(iv) the Indenture Trustee otherwise becomes incapable of acting;
or
(v) the Indenture Trustee breaches any representation, warranty or
covenant made by it under any Basic Document.
If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The retiring Indenture Trustee
shall be paid all amounts owed to it upon its resignation or removal. The
successor Indenture Trustee shall mail a notice of its succession to
Noteholders. The retiring Indenture Trustee shall promptly transfer all property
held by it as Indenture Trustee to the successor Indenture Trustee. The retiring
Indenture Trustee shall not be liable for the acts or omissions of any Successor
Indenture Trustee.
If a successor Indenture Trustee does not take office within 45 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Holders of a majority in Outstanding Amount
of the Controlling Class of Notes may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
44
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's and the Administrator's obligations under Section
6.07 shall continue for the benefit of the retiring Indenture Trustee.
Section 6.09. Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee; provided, that
such corporation or banking association shall be qualified and eligible under
Section 6.11.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force that it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the Noteholders,
such title to the Trust Estate, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to
be
45
performed the Indenture Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Trust Estate or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.11. Eligibility; Disqualification. The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000.00 as
set forth in its most recent published annual report of condition, and the time
deposits of the Indenture Trustee shall be rated at least A-1 by Standard &
Poor's and P-1 by Moody's. The Indenture Trustee shall comply with TIA Section
310(b), including the optional provision permitted by the second sentence of TIA
Section 310(b)(9); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities of the Issuer are outstanding if the requirements for such exclusion
set forth in TIA Section 310(b)(1) are met.
Section 6.12. [Reserved].
Section 6.13. Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
46
Section 6.14. Waiver of Setoffs. The Indenture Trustee hereby expressly
waives any and all rights of setoff that the Indenture Trustee may otherwise at
any time have under applicable law with respect to any Trust Account and agrees
that amounts in the Trust Accounts shall at all times be held and applied solely
in accordance with the provisions hereof and of the other Basic Documents.
ARTICLE VII.
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Note Registrar To Furnish Names and Address of
Noteholders. The Note Registrar shall furnish or cause to be furnished to the
Indenture Trustee, the Owner Trustee, the Servicer or the Administrator, within
15 days after receipt by the Note Registrar of a written request therefrom, a
list of the names and addresses of the Noteholders of any Class as of the most
recent Record Date. If three or more Noteholders of any Class, or one or more
Holders of such Class evidencing not less than 25% of the Outstanding Amount of
such Class (hereinafter referred to as "Applicants"), apply in writing to the
Indenture Trustee, and such application states that the Applicants desire to
communicate with other Noteholders with respect to their rights under this
Indenture or under the Notes and such application is accompanied by a copy of
the communication that such Applicants propose to transmit, then the Indenture
Trustee shall, within five Business Days after the receipt of such application,
afford such Applicants access, during normal business hours, to the current list
of Noteholders. The Indenture Trustee may elect not to afford the Applicants
access to the list of Noteholders if it agrees to mail the desired communication
by proxy, on behalf of and at the expense of such Applicants, to all Noteholders
of such series. Every Noteholder, by receiving and holding a Note, agrees with
the Indenture Trustee and the Issuer that none of the Indenture Trustee, the
Owner Trustee, the Issuer, the Servicer or the Administrator shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Noteholders under this Indenture, regardless of the source
from which such information was derived. If the Indenture Trustee shall cease to
be the Note Registrar, then thereafter the Administrator will furnish or cause
to be furnished to the Indenture Trustee not more than five days after the most
recent Record Date or at such other times as the Indenture Trustee reasonably
may request in writing, a list, in such form as the Indenture Trustee reasonably
may require, of the names and addresses of the Holders of Notes as of such
Record Date.
Section 7.02. Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.01 upon receipt
of a new list so furnished. The Indenture Trustee shall make such list available
to the Owner Trustee on written request, and to the Noteholders upon written
request of three or more Noteholders or one or more Noteholders evidencing not
less than 25% of the Outstanding Amount of the Notes. Upon receipt by the
Indenture Trustee of any request by a Noteholder to receive a copy of the
current list of Noteholders, the Indenture Trustee shall promptly notify the
47
Administrator thereof by providing to the Administrator a copy of such request
and a copy of the list of Noteholders in response thereto.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 312(c).
Section 7.03. Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required (if at all) to file the same with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) that the Issuer may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports with
respect to compliance by the Issuer with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA Section
313(c)) such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to clauses (i) and (ii) of
this Section 7.03(a) and by rules and regulations prescribed from time
to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
Section 7.04. Reports by Indenture Trustee. If required by TIA Section
313(a), within 60 days after each March 31, beginning with March 31, 2005, the
Indenture Trustee shall mail to each Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). The Indenture Trustee also shall comply with TIA Section 313(b).
ARTICLE VIII.
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this
48
Indenture. The Indenture Trustee shall apply all such money received by it as
provided in this Indenture. Except as otherwise expressly provided in this
Indenture, if any default occurs in the making of any payment or performance
under any agreement or instrument that is part of the Trust Estate, the
Indenture Trustee may take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
Section 8.02. Trust Accounts.
(a) On or prior to the Closing Date, the Issuer shall, or shall cause
the Servicer to, establish and maintain, in the name of the Indenture Trustee,
for the benefit of the Noteholders the Trust Accounts as provided in Section
5.02 of the Sale and Servicing Agreement.
(b) The Issuer shall cause the Servicer to deposit all Available
Amounts with respect to the Collection Period preceding such Payment Date in the
Collection Account not later than two Business Days after receipt as provided in
Section 5.03 and 5.04 of the Sale and Servicing Agreement. However, if each
condition to making monthly deposits as may be required by the Sale and
Servicing Agreement (including, the satisfaction of specified ratings criteria
by the Servicer and the absence of any Servicer Default) is satisfied, the
Servicer may retain these amounts until the Business Day immediately preceding
the related Payment Date. On or before the Business Day prior to each Payment
Date, all amounts required to be withdrawn from the Reserve Account and
deposited in the Collection Account pursuant to Section 5.05 of the Sale and
Servicing Agreement shall be withdrawn by the Indenture Trustee from the Reserve
Account and deposited to the Collection Account as provided therein, as to which
Issuer shall cause Servicer to timely provide the related instructions.
(c) On each Payment Date, except as provided in Section 5.04(b), the
Indenture Trustee (based on the information contained in the Servicer's report
delivered on or before the related Determination Date pursuant to Section 4.09
of the Sale and Servicing Agreement) shall make the withdrawals from the
Collection Account and make deposits, distributions and payments, to the extent
of funds on deposit in the Collection Account with respect to the Collection
Period preceding such Payment Date (including funds, if any, deposited therein
from the Reserve Account), in accordance with the provisions of Section 5.05(b)
of the Sale and Servicing Agreement (as to which Issuer shall cause Servicer to
timely provide the related instructions). On each Payment Date, the Indenture
Trustee (based on the information contained in the Servicer's report delivered
on or before the related Determination Date pursuant to Section 4.09 of the Sale
and Servicing Agreement) shall withdraw the funds on deposit in the Interest
Distribution Account with respect to the Collection Period preceding such
Payment Date and make distributions and payments in the following order of
priority:
(i) first, to the Noteholders of Class A Notes, the accrued and
unpaid interest on the Class A Notes; provided that if there are not
sufficient funds available to pay the entire amount of the accrued and
unpaid interest on the Class A Notes, the amounts available shall be
applied to the payment of such interest on the Class A Notes on a pro
rata basis based upon the amount of interest due on each Class of Class
A Notes;
49
(ii) second, to the Noteholders of Class B Notes, the accrued and
unpaid interest on the Class B Notes; provided that if there are not
sufficient funds available to pay the entire amount of the accrued and
unpaid interest on the Class B Notes, the amounts available shall be
applied to the payment of such interest on the Class B Notes on a pro
rata basis;
(iii) third, to the Noteholders of Class C Notes, the accrued and
unpaid interest on the Class C Notes; provided that if there are not
sufficient funds available to pay the entire amount of the accrued and
unpaid interest on the Class C Notes, the amounts available shall be
applied to the payment of such interest on the Class C Notes on a pro
rata basis; and
(iv) fourth, to the Noteholders of Class D Notes, the accrued and
unpaid interest on the Class D Notes; provided that if there are not
sufficient funds available to pay the entire amount of the accrued and
unpaid interest on the Class D Notes, the amounts available shall be
applied to the payment of such interest on the Class D Notes on a pro
rata basis.
(d) On each Payment Date, except as provided in Section 5.04(b), the
Indenture Trustee (based on the information contained in the Servicer's report
delivered on or before the related Determination Date pursuant to Section 4.09
of the Sale and Servicing Agreement) shall withdraw the funds on deposit in the
Principal Distribution Account with respect to the Collection Period preceding
such Payment Date and make distributions and payments in the following order of
priority:
(i) first, to the Noteholders of the Class A Notes, the Class A
Principal Distributable Amount in the following order of priority:
(A) first, to the Noteholders of the Class A-1 Notes in
reduction of principal until the principal amount of the
Outstanding Class A-1 Notes has been paid in full; provided that if
there are not sufficient funds available to pay the principal
amount of the Outstanding Class A-1 Notes in full, the amounts
available shall be applied to the payment of principal on the Class
A-1 Notes on a pro rata basis;
(B) second, to the Noteholders of the Class A-2 Notes in
reduction of principal until the principal amount of the
Outstanding Class A-2 Notes has been paid in full; provided that if
there are not sufficient funds available to pay the principal
amount of the Outstanding Class A-2 Notes in full, the amounts
available shall be applied to the payment of principal on the Class
A-2 Notes on a pro rata basis;
(C) third, to the Noteholders of the Class A-3 Notes in
reduction of principal until the principal amount of the
Outstanding Class A-3 Notes has been paid in full; provided that if
there are not sufficient funds available to pay the principal
amount of the Outstanding Class A-3 Notes in full, the amounts
available shall be applied to the payment of principal on the Class
A-3 Notes on a pro rata basis;
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(D) fourth, to the Noteholders of the Class A-4 Notes in
reduction of principal until the principal amount of the
Outstanding Class A-4 Notes has been paid in full; provided that if
there are not sufficient funds available to pay the principal
amount of the Outstanding Class A-4 Notes in full, the amounts
available shall be applied to the payment of principal on the Class
A-4 Notes on a pro rata basis;
(ii) second, to the Noteholders of the Class B Notes in reduction
of principal, the Class B Principal Distributable Amount until the
principal amount of the Outstanding Class B Notes has been paid in
full; provided that if there are not sufficient funds available to pay
the principal amount of the Outstanding Class B Notes in full, the
amounts available shall be applied to the payment of principal on the
Class B Notes on a pro rata basis;
(iii) third, to the Noteholders of the Class C Notes in reduction
of principal, the Class C Principal Distributable Amount until the
principal amount of the Outstanding Class C Notes has been paid in
full; provided that if there are not sufficient funds available to pay
the principal amount of the Outstanding Class C Notes in full, the
amounts available shall be applied to the payment of principal on the
Class C Notes on a pro rata basis;
(iv) fourth, to the Noteholders of the Class D Notes in reduction
of principal, the Class D Principal Distributable Amount until the
principal amount of the Outstanding Class D Notes has been paid in
full; provided that if there are not sufficient funds available to pay
the principal amount of the Outstanding Class D Notes in full, the
amounts available shall be applied to the payment of principal on the
Class D Notes on a pro rata basis; and
(v) fifth, to the Certificateholders, any amounts remaining in the
Principal Distribution Account.
Section 8.03. General Provisions Regarding Accounts. The Indenture
Trustee shall not in any way be held liable by reason of any insufficiency in
any of the Trust Accounts resulting from any loss on any Eligible Investment
included therein except for losses attributable to the Indenture Trustee's
failure, in its commercial capacity as principal obligor and not as trustee, to
make payments on such Eligible Investments issued by the Indenture Trustee, in
its commercial capacity as principal obligor and not as trustee, in accordance
with their terms.
Section 8.04. Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to Section
6.07, the Indenture Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property from the lien of this
Indenture, or convey the Indenture Trustee's interest in the same, in a manner
and under circumstances that are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided in this Article VIII shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any moneys.
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(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have
been paid in full, release any remaining portion of the Trust Estate that
secured the Notes from the lien of this Indenture and release to the Issuer or
any other Person entitled thereto any funds then on deposit in the Trust
Accounts. The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.04(b) only upon receipt by it of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and (if
required by the TIA) Independent Certificates in accordance with TIA Sections
314(c) and 314(d)(1) meeting the applicable requirements of Section 11.01.
(c) The Issuer agrees, upon request by the Servicer and representation
by the Servicer that it has complied with the procedure in Section 9.01 of the
Sale and Servicing Agreement, to render the Issuer Request to the Indenture
Trustee in accordance with Section 4.04, and take such other actions as are
required in that Section.
Section 8.05. Opinion of Counsel. The Indenture Trustee shall receive
at least seven days prior written notice when requested by the Issuer to take
any action pursuant to Section 8.04(b), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of the provisions of this Indenture;
provided, however, that such Opinion of Counsel shall not be required to express
an opinion as to the fair value of the Trust Estate. Counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with prior
written notice to the Rating Agencies (with copy to the Indenture Trustee), the
Issuer and the Indenture Trustee, when authorized by an Issuer Order and
provided with an Issuer Officer's Certificate stating that the supplement will
have no material adverse effect on any Noteholder, at any time and from time to
time, may enter into one or more supplemental indentures hereto (which shall
conform to the provisions of the Trust Indenture Act as in force at the date of
the execution thereof), in form satisfactory to the Indenture Trustee, for any
of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure, convey
and confirm unto the Indenture Trustee any property subject or required
to be subjected to the lien of this Indenture, or to subject to the
lien of this Indenture additional property;
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(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to the Issuer, and the assumption
by any such successor of the covenants of the Issuer herein and in the
Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with
any other provision herein or in any supplemental indenture or to make
any other provisions with respect to matters or questions arising under
this Indenture or in any supplemental indenture; provided, that such
action shall not adversely affect the interests of the Holders of the
Notes;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add
to or change any of the provisions of this Indenture as shall be
necessary to facilitate the administration of the trusts hereunder by
more than one trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Holders of the Notes but with
prior notice to the Rating Agencies, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel (which may not be in-house counsel), adversely affect in any
material respect the interests of any Noteholder, provided further that such
action shall not be deemed to adversely affect in any material respect the
interests of any Noteholder and no Opinion of Counsel to that effect shall be
required if the person requesting such amendment obtains a letter from the
Rating Agencies stating that the amendment would not result in the downgrading
or withdrawal of the ratings then assigned to the Notes.
Section 9.02. Supplemental Indentures with Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies delivered by the Issuer with a copy to
the Indenture Trustee and with the
53
consent of the Holders of not less than a majority of the Outstanding Amount of
the Notes, by Act of such Holders delivered to the Issuer and the Indenture
Trustee, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Holders of the Notes under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(i) change the date of payment of any installment of principal of
or interest on any Note, or reduce the principal amount thereof, the
interest rate thereon or the Redemption Price with respect thereto,
change the provisions of this Indenture relating to the application of
collections on, or the proceeds of the sale of, the Trust Estate to
payment of principal of or interest on the Notes, or change any place
of payment where, or the coin or currency in which, any Note or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to
the payment of any such amount due on the Notes on or after the
respective due dates thereof (or, in the case of redemption, on or
after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the Notes
or the Controlling Class, the consent of the Holders of which is
required for any such supplemental indenture, or the consent of the
Holders of which is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(iii) modify or alter (x) the provisions of the proviso as to the
definition of the term "Outstanding" or (y) the definition of
Controlling Class;
(iv) reduce the percentage of the Outstanding Amount of the Notes
or the Controlling Class of Notes, as applicable, required to direct
the Indenture Trustee to direct the Issuer to sell or liquidate the
Trust Estate pursuant to Section 5.04;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified
or waived without the consent of the Holder of each Outstanding Note
affected thereby;
(vi) modify any of the provisions of this Indenture in such manner
as to affect the calculation of the amount of any payment of interest
or principal due on any Note on any Payment Date (including the
calculation of any of the individual components of such calculation) or
to affect the rights of the Holders of Notes to the benefit of any
provisions for the mandatory redemption of the Notes contained herein;
or
(vii) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Trust Estate or, except as
54
otherwise permitted or contemplated herein, terminate the lien of this
Indenture on any property at any time subject hereto or deprive the
Holder of any Note of the security provided by the lien of this
Indenture.
It shall not be necessary for any Act of Noteholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 9.03. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Indenture Trustee may, but shall not be obligated to, enter into
any such supplemental indenture that affects the Indenture Trustee's own rights,
duties, liabilities or immunities under this Indenture or otherwise. The
Administrator shall provide a fully executed copy of any supplemental indentures
to this Indenture to each Rating Agency.
Section 9.04. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance therewith
with respect to the Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer and the Holders of the Notes
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 9.05. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
Section 9.06. Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
55
ARTICLE X.
REDEMPTION OF NOTES
Section 10.01. Redemption. The Notes are subject to redemption in
whole, but not in part, at the direction of the Servicer pursuant to Section
9.01 of the Sale and Servicing Agreement, on any Payment Date on which the
Servicer exercises its option to purchase the Trust Estate pursuant to said
Section 9.01, for a purchase price equal to the Redemption Price; provided, that
the Issuer has available funds sufficient to pay the Redemption Price. The
Servicer or the Issuer shall furnish the Rating Agencies and the Indenture
Trustee notice of such redemption. If the Notes are to be redeemed pursuant to
this Section 10.01, the Servicer shall furnish notice of such election to the
Indenture Trustee not later than 20 days prior to the Redemption Date and shall
deposit the Business Day prior to the Redemption Date with the Indenture Trustee
in the Note Distribution Account the Redemption Price of the Notes to be
redeemed, whereupon all such Notes shall be due and payable on the Redemption
Date upon the furnishing of a notice complying with Section 10.02 to each Holder
of the Notes.
Section 10.02. Form of Redemption Notice. Notice of redemption under
Section 10.01 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, or by facsimile mailed or transmitted not later than 10 days
prior to the applicable Redemption Date to each Holder of Notes, as of the close
of business on the Record Date preceding the applicable Redemption Date, at such
Holder's address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Notes are to be surrendered for payment
of the Redemption Price (which shall be the office or agency of the
Issuer to be maintained as provided in Section 3.02); and
(iv) that interest on the Notes shall cease to accrue on the
Redemption Date.
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give notice of
redemption, or any defect therein, to any Holder of any Note shall not impair or
affect the validity of the redemption of any other Note.
Section 10.03. Notes Payable on Redemption Date. The Notes or portions
thereof to be redeemed shall, following notice of redemption as required by
Section 10.02 (in the case of redemption pursuant to Section 10.01), on the
Redemption Date become due and payable at the Redemption Price and (unless the
Issuer shall default in the payment of the Redemption Price) no interest shall
accrue on the Redemption Price for any period after the date to which accrued
interest is calculated for purposes of calculating the Redemption Price.
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ARTICLE XI.
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture, the Issuer
shall furnish to the Indenture Trustee (i) an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the applicable requirements
of this Section, except that, in the case of any such application or request as
to which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for
the release of any property or securities subject to the lien of this
Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.01(a) or elsewhere in this Indenture, furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such deposit) to the Issuer of the Collateral or
other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (i) above, the
Issuer shall also deliver to the Indenture Trustee an Independent
Certificate as to the same matters, if the fair
57
value to the Issuer of the securities to be so deposited and of all
other such securities made the basis of any such withdrawal or release
since the commencement of the then-current fiscal year of the Issuer,
as set forth in the certificates delivered pursuant to clause (i) above
and this clause (ii), is 10% or more of the Outstanding Amount of the
Notes, but such a certificate need not be furnished with respect to any
securities so deposited, if the fair value thereof to the Issuer as set
forth in the related Officer's Certificate is less than $25,000 or less
than one percent of the Outstanding Amount of the Notes.
(iii) Whenever any property or securities are to be released from
the lien of this Indenture, the Issuer shall also furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such release) of the property or securities proposed
to be released and stating that in the opinion of such person the
proposed release will not impair the security under this Indenture in
contravention of the provisions hereof.
(iv) Other than with respect to the release of any Purchased
Receivable, the Issuer is required to furnish to the Indenture Trustee
an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (iii) above, the
Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than property as
contemplated by clause (v) below, or securities released from the lien
of this Indenture since the commencement of the then-current calendar
year, as set forth in the certificates required by clause (iii) above
and this clause (iv), equals 10% or more of the Outstanding Amount of
the Notes, but such certificate need not be furnished in the case of
any release of property or securities if the fair value thereof as set
forth in the related Officer's Certificate is less than $25,000 or less
than one percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 4.04 or any other provision of this
Section, the Issuer may, without compliance with the requirements of
the other provisions of this Section, (A) collect, liquidate, sell or
otherwise dispose of Receivables and Financed Vehicles as and to the
extent permitted or required by the Basic Documents and (B) make cash
payments out of the Trust Accounts as and to the extent permitted or
required by the Basic Documents.
Section 11.02. Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by,
58
counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to the
matters upon which such officer's certificate or opinion is based are erroneous.
Any such certificate of an Authorized Officer or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the Servicer, either
Seller, the Issuer or the Administrator, stating that the information with
respect to such factual matters is in the possession of the Servicer, the
applicable Seller, the Issuer or the Administrator, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
Section 11.03. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and except as herein otherwise expressly provided
such action shall become effective when such instrument or instruments are
delivered to the Indenture Trustee and, where it is hereby expressly required,
to the Issuer. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01) conclusive in
favor of the Indenture Trustee and the Issuer, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done,
59
omitted or suffered to be done by the Indenture Trustee or the Issuer in
reliance thereon, whether or not notation of such action is made upon such Note.
Section 11.04. Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
shall be in writing and, if such request, demand, authorization, direction,
notice, consent, waiver or act of Noteholders is to be made upon, given or
furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by the Issuer, shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Indenture Trustee at its Corporate
Trust Office; or
(ii) the Issuer by the Indenture Trustee or by any Noteholder,
shall be sufficient for every purpose hereunder if in writing and
mailed first-class, postage prepaid to the Issuer addressed to: Hyundai
Auto Receivables Trust 2004-A, in care of Wilmington Trust Company, as
Owner Trustee, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration, or at any other address previously furnished in writing
to the Indenture Trustee by the Issuer or the Administrator. The Issuer
shall promptly transmit any notice received by it from the Noteholders
to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally delivered
or mailed by certified mail, return receipt requested, to (i) in the case of
Moody's, at the following address: Moody's Investors Service, Inc., ABS
Monitoring Department, 99 Church Street, New York, New York 10007; (ii) in the
case of Standard & Poor's, at the following address: Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc., 55 Water Street, New
York, New York 10041, Attention of Asset Backed Surveillance Department; and
(iii) in the case of Fitch, at the following address: Fitch, Inc., One State
Street Plaza, New York, New York 10004; or as to each of the foregoing, at such
other address as shall be designated by written notice to the other parties.
Section 11.05. Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at such Holder's address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be
60
filed with the Indenture Trustee but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
Section 11.06. Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the Issuer
may enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture for such
payments or notices, provided that the Issuer agrees to pay any additional
expenses incurred as a result of such alternative payment or notice provision.
The Issuer will furnish to the Indenture Trustee a copy of each such agreement
and the Indenture Trustee will cause payments to be made and notices to be given
in accordance with such agreements. The Indenture Trustee shall provide a copy
of any request made pursuant to this Section 11.06 to the Owner Trustee.
Section 11.07. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 11.08. Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors, co-trustees and agents.
Section 11.09. Separability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 11.10. Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, and any other party
secured hereunder, and any other Person with an ownership interest in any part
of the Trust Estate, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 11.11. Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
61
Section 11.12. GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.13. Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 11.14. Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at the expense of the Servicer accompanied by an
Opinion of Counsel (which may be counsel to the Indenture Trustee or any other
counsel reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any other
Person secured hereunder or for the enforcement of any right or remedy granted
to the Indenture Trustee under this Indenture.
Section 11.15. Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer, including the Seller, or (iii) any
partner, owner, beneficiary, agent, officer, director, employee or agent of the
Indenture Trustee or the Owner Trustee in its individual capacity, any holder of
a beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee
or of any successor or assign of the Indenture Trustee or the Owner Trustee in
its individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity). For all purposes of this Indenture,
in the performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Article VI, VII and VIII of the Trust Agreement.
Section 11.16. No Petition. The Indenture Trustee, by entering into
this Indenture, and each Noteholder, by accepting a Note, hereby covenant and
agree that they will not at any time institute against the Issuer or the
Depositor, or join in any institution against the Issuer or the Depositor, of
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the Basic Documents.
Section 11.17. Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested; provided, however,
that the Indenture Trustee may
62
only cause the books of the Issuer to be audited on an annual basis, unless
there occurs an Event of Default hereunder. The Indenture Trustee shall, and
shall cause its representatives to, hold in confidence all such information
except to the extent such information is publicly available or such disclosure
may be required by law (and all reasonable applications for confidential
treatment are unavailing) and except to the extent that the Indenture Trustee
may reasonably determine with the advice of counsel and after consultation with
the Issuer that such disclosure is consistent with its obligations hereunder.
Section 11.18. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
Section 11.19. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Indenture is executed and delivered
by Wilmington Trust Company, not individually or personally but solely as Owner
Trustee of Hyundai Auto Receivables Trust 2004-A, in the exercise of the powers
and authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Issuer is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but is made and intended for the purpose for binding
only the Issuer, (c) nothing herein contained shall be construed as creating any
liability on Wilmington Trust Company individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability, if
any, being expressly waived by the parties hereto and by any Person claiming by,
through or under the parties hereto and (d) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of the Issuer or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Issuer under this Indenture or any other related documents.
Section 11.20. Representations and Warranties. The Issuer makes the
representations and warranties set forth below with respect to the Receivables,
on which the Indenture Trustee relies. Such representations and warranties speak
as of the execution and delivery of this Indenture as of the Closing Date, but
shall survive the assignment of the Receivables to the Indenture Trustee, and
shall not be waived by the Indenture Trustee except in accordance with the terms
of this Indenture.
(a) This Indenture creates a valid and continuing security interest (as
defined in the UCC) in the Receivables in favor of the Indenture Trustee, which
security interest is prior to all other Liens, and is enforceable as such
against creditors of and purchasers from the Issuer.
(b) Each Receivables constitutes "chattel paper" within the meaning of
the UCC as in effect in the state of origination
63
(c) Immediately upon the transfer thereof from the Depositor to the
Issuer pursuant to the Sale and Servicing Agreement, the Issuer shall have good
and marketable title to each Receivable, free and clear of any Lien of any
Person.
(d) The Issuer has caused, or will have caused, within ten days, the
filing of all appropriate financing statements in the proper filling office in
the appropriate jurisdiction under the applicable UCC in order to perfect the
security interest in the Receivables granted to the Indenture Trustee under this
Indenture.
(e) Other than the security interest granted to the Indenture Trustee
pursuant to this Indenture, the Issuer has not pledged, assigned, sold, granted
a security interest in, or otherwise conveyed any of the Receivables. The Issuer
has not authorized the filing of and is not aware of any financing statements
against the Issuer that include a description of collateral describing the
Receivables other than any financing statement relating to the security interest
granted to the Indenture Trustee under this Indenture. The Issuer is not aware
of any judgment or tax lien filings against the Issuer.
(f) The Contracts that constitute or evidence the Receivables do not
have any marks or notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than the Indenture Trustee, except for
such marks or notations indicating that they have been pledged, assigned or
otherwise conveyed (i) to the Depositor or the Issuer in accordance with the
Basic Documents, (ii) pursuant to the Second Amended and Restated Receivables
Purchase Agreement, dated as of July 23, 2002, as amended, among the Seller,
Hyundai BC Funding Corporation, Amsterdam Funding Corporation, Asset One
Securitization, LLC, Sheffield Receivables Corporation, Societe Generale, ABN
AMRO Bank N.V. and Barclays Bank PLC and the Purchase and Sale Agreement dated
as of January 17, 2000, as amended between the Seller and Hyundai BC Funding
Corporation or (iii) to HMFC in accordance with Dealer Agreements. All financing
statements filed or to be filed against the Issuer in favor of the Indenture
Trustee in connection with this Indenture describing the Receivables contain a
statement to the following effect: "A purchase of or security interest in any
collateral described in this financing statement, except as provided in the
Indenture, will violate the rights of the Indenture Trustee."
* * * * *
64
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized and duly attested, all as of the day and year first above written.
HYUNDAI AUTO RECEIVABLES TRUST 2004-A,
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee,
By: /s/ Kathleen A. Pedelini
-----------------------------
Name: Kathleen A. Pedelini
Title: Financial Services Officer
CITIBANK, N.A., not in its individual capacity but
solely as Indenture Trustee,
By: /s/ Karen Schluter
-----------------------------
Name: Karen Schluter
Title: Vice President
STATE OF DELAWARE )
) ss.:
COUNTY OF NEW CASTLE )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared Kathleen A. Pedelini, a
Financial Services Officer of Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee of Hyundai Auto Receivables Trust 2004-A,
a Delaware statutory trust (the "Trust") known to me to be the person and
officer whose name is subscribed to the foregoing instrument and acknowledged
to me that the same was the act of the said Trust, and that s/he executed the
same as the act of said statutory trust for the purpose and consideration
therein expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND
SEAL OF OFFICE, this 31st day of August 2004.
---
/s/ Michele Lauren Centrella
- ----------------------------
Notary Public
My commission expires: May 17, 2006
------------
STATE OF NEW YORK )
) ss.:
COUNTY OF KINGS )
BEFORE ME, the undersigned authority, a Notary Public in and for said county
and state, on this day personally appeared Karen Schluter, Vice President, known
to me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of Citibank, N.A.,
a national banking association, and that s/he executed the same as the act of
said corporation for the purpose and consideration therein stated.
GIVEN UNDER MY HAND AND
SEAL OF OFFICE, this 1 day of September 2004.
---
/s/ Nanetter Murphy
- ------------------------
Notary Public
My commission expires: January 2, 2007
-------------------
SCHEDULE A
[To be Delivered to the Trust at Closing]
EXHIBIT A-1
[FORM OF CLASS A-1 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $155,000,000(1)
No. R-_____ CUSIP NO. 449182 AZ 7
HYUNDAI AUTO RECEIVABLES TRUST 2004-A
1.78125% ASSET BACKED NOTE, CLASS A-1
HYUNDAI AUTO RECEIVABLES TRUST 2004-A, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of ONE HUNDRED FIFTY-FIVE MILLION DOLLARS,
payable on each Payment Date in an amount equal to the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the Class
A-1 Notes pursuant to Section 3.01 of the Indenture dated as of September 1,
2004 (the "Indenture"), between the Issuer and Citibank, N.A., a national
banking association, as Indenture Trustee (the "Indenture Trustee"); provided,
however, that the entire unpaid principal amount of this Note shall be due and
payable on the earlier of September 15, 2005 (the "Class A-1 Maturity Date") and
the Redemption Date, if any, Pursuant to Article X of the Indenture. Capitalized
terms used but not defined herein are defined in the Indenture, which also
contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum set
forth above, on each Payment Date until the principal of this Note is paid or
made available for payment, on the
- -----------------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
A-1-1
principal amount of this Note outstanding on the preceding Payment Date (after
giving effect to all payments of principal made on the preceding Payment Date),
subject to certain limitations contained in the last sentence of Section 3.01 of
the Indenture. Interest on this Note will accrue for each Payment Date on the
basis of a 360-day year and the actual number of days from the previous Payment
Date (or, in the case of the first Payment Date, from the Closing Date) to but
excluding the next Payment Date. Such principal of and interest on this Note
shall be paid in the manner specified herein.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 1.78125% Asset Backed Notes, Class A-1 (herein called the
"Class A-1 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-1 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes are and will be secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-1 Notes are
senior in right of payment to the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes, the Class B Notes, the Class C Notes and the Class D Notes, to
the extent provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day of
each month, or, if any such date is not a Business Day, the next succeeding
Business Day, commencing October 15, 2004.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Class A-1 Maturity Date and the
Redemption Date, if any, pursuant to Article X of the Indenture. Notwithstanding
the foregoing, if an Event of Default occurs, the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Controlling Class of Notes may declare the Notes to be immediately due
and payable in the manner provided in Section 5.02 of the Indenture. All
principal payments on the Class A-1 Notes shall be made pro rata to the Class
A-1 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of
A-1-2
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in The City of New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-1 Rate to the extent lawful.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes
of authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange subject to certain exceptions set forth in the
Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Seller, the Servicer, the Indenture Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer, including the Seller or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Seller, the Servicer,
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Seller, the Servicer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed and except that any
A-1-3
such partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Noteholder or Note Owner will
not at any time institute against the Issuer or the Depositor, or join in any
institution against the Issuer or the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for purposes of federal and state income tax, franchise tax
and any other tax measured in whole or in part by income, the Notes will be
characterized as indebtedness secured by the Trust Estate. Each Noteholder, by
acceptance of a Note (and each Note Owner by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for such purposes as indebtedness.
This Note, or any interest therein, may not be transferred to an
"employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental, foreign or church plan subject to applicable law that is
substantially similar to the fiduciary responsibility provisions of ERISA or
Section 4975 of the Code, unless such transferee represents, warrants and
covenants that its purchase and holding of this Note, throughout the period that
it holds this Note is, and will be, covered by Department of Labor prohibited
transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE 91-38; PTE
84-14 or another applicable prohibited transaction exemption (or in the case of
a governmental, foreign or church plan subject to law that is substantially
similar to ERISA or Section 4975 of the Code, a similar type of exemption or
other applicable relief). By its acquisition of this Note in book-entry form or
any interest therein, each transferee will be deemed to have represented,
warranted and covenanted that it satisfies the foregoing requirements and the
Indenture Trustee may rely conclusively on the same for purposes hereof.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
A-1-4
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes or the Controlling
Class of Notes, as applicable, representing a majority of the Outstanding Amount
of all Notes or Controlling Class of Notes at the time Outstanding. The
Indenture also contains provisions permitting Holders of Notes representing
specified percentages of the Outstanding Amount of the Controlling Class of
Notes, on behalf of the Holders of all the Notes, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note (or any one or more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Indenture Trustee to amend or waive certain
terms and conditions set forth in the Indenture without the consent of Holders
of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, Citibank, N.A. in its individual capacity, any owner of
a beneficial interest in the Issuer, the Seller, the Servicer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on this Note or
performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Indenture. The Holder of this Note by its
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
A-1-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: ______________________ HYUNDAI AUTO RECEIVABLES TRUST 2004-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under
the Trust Agreement,
---------------------------------
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date: ___________________ CITIBANK, N.A., not in its
individual capacity but solely as
Indenture Trustee,
By:
-------------------------------
Authorized Signatory
A-1-6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
___________________ FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto:
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ________________________ */
Signature Guaranteed:
________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-1-7
EXHIBIT A-2
[FORM OF CLASS A-2 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $215,000,000(2)
No. R-________ CUSIP NO. 449182 BA 1
HYUNDAI AUTO RECEIVABLES TRUST 2004-A
2.36% ASSET BACKED NOTE, CLASS A-2
HYUNDAI AUTO RECEIVABLES TRUST 2004-A, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of TWO HUNDRED FIFTEEN MILLION DOLLARS,
payable on each Payment Date in an amount equal to the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the Class
A-2 Notes pursuant to Section 3.01 of the Indenture dated as of September 1,
2004 (the "Indenture"), between the Issuer and Citibank, N.A., a national
banking association, as Indenture Trustee (the "Indenture Trustee"); provided,
however, that the entire unpaid principal amount of this Note shall be due and
payable on the earlier of September 15, 2007 (the "Class A-2 Maturity Date") and
the Redemption Date, if any, pursuant to Article X of the Indenture. Capitalized
terms used but not defined herein are defined in the Indenture, which also
contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum set
forth above, on each Payment Date until the principal of this Note is paid or
made available for payment, on the
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(2) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
A-2-1
principal amount of this Note outstanding on the preceding Payment Date (after
giving effect to all payments of principal made on the preceding Payment Date),
subject to certain limitations contained in the last sentence of Section 3.01 of
the Indenture. Interest on this Note will accrue for each Payment Date from and
including the 15th day of the month preceding the month of such Payment Date
(or, in the case of the first Payment Date, from the Closing Date) to but
excluding the 15th day of the month of such Payment Date. Interest will be
computed on the basis of a 360-day year consisting of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
herein.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 2.36% Asset Backed Notes, Class A-2 (herein called the "Class
A-2 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-2 Notes are subject to all
terms of the Indenture.
The Class A-2 Notes are and will be secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-2 Notes are
subordinated in right of payment to the Class A-1 Notes and are senior in right
of payment to the Class A-3 Notes, the Class A-4 Notes, the Class B Notes, the
Class C Notes and the Class D Notes, to the extent provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day of
each month, or, if any such date is not a Business Day, the next succeeding
Business Day, commencing October 15, 2004.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Class A-2 Maturity Date and the
Redemption Date, if any, pursuant to Article X of the Indenture. Notwithstanding
the foregoing, if an Event of Default occurs, the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Controlling Class of Notes may declare the Notes to be immediately due
and payable in the manner provided in Section 5.02 of the Indenture. All
principal payments on the Class A-2 Notes shall be made pro rata to the Class
A-2 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of
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this Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Note be submitted for notation of
payment. Any reduction in the principal amount of this Note (or any one or more
Predecessor Notes) effected by any payments made on any Payment Date shall be
binding upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Payment Date, then the Indenture Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Payment Date by notice mailed or
transmitted by facsimile prior to such Payment Date, and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in The City of New
York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-2 Rate to the extent lawful.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes
of authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange subject to certain exceptions set forth in the
Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Seller, the Servicer, the Indenture Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer, including the Seller or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Seller, the Servicer,
Indenture Trustee or the Owner Trustee in its individual capacity, any holder of
a beneficial interest in the Issuer, the Seller, the Servicer, the Owner Trustee
or the
A-2-3
Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity. Each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, agrees that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under the Indenture, the Noteholder shall have no
claim against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Noteholder or Note Owner will
not at any time institute against the Issuer or the Depositor, or join in any
institution against the Issuer or the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for purposes of federal and state income tax, franchise tax
and any other tax measured in whole or in part by income, the Notes will be
characterized as indebtedness secured by the Trust Estate. Each Noteholder, by
acceptance of a Note (and each Note Owner by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for such purposes as indebtedness.
This Note, or any interest therein, may not be transferred to an
"employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental, foreign or church plan subject to applicable law that is
substantially similar to the fiduciary responsibility provisions of ERISA or
Section 4975 of the Code, unless such transferee represents, warrants and
covenants that its purchase and holding of this Note, throughout the period that
it holds this Note is, and will be, covered by Department of Labor prohibited
transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE 91-38; PTE
84-14 or another applicable prohibited transaction exemption (or in the case of
a governmental, foreign or church plan, subject to law that is substantially
similar to ERISA or Section 4975 of the Code, a similar type of exemption or
other applicable relief). By its acquisition of this Note in book-entry form or
any interest therein, each transferee will be deemed to have represented,
warranted and covenanted that it satisfies the foregoing requirements and the
Indenture Trustee may rely conclusively on the same for purposes hereof.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
A-2-4
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes or
the Controlling Class of Notes, as applicable, representing a majority of the
Outstanding Amount of all Notes or Controlling Class of Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of Notes
representing specified percentages of the Outstanding Amount of the Controlling
Class of Notes, on behalf of the Holders of all the Notes, to waive compliance
by the Issuer with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Indenture Trustee to amend or waive certain
terms and conditions set forth in the Indenture without the consent of Holders
of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws. No reference
herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this Note at the times,
place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, Citibank, N.A. in its individual capacity, any owner of
a beneficial interest in the Issuer, the Seller, the Servicer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on this Note or
performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Indenture. The Holder of this Note by its
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
A-2-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: ______________________ HYUNDAI AUTO RECEIVABLES TRUST 2004-A
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but
solely as Owner Trustee under the
Trust Agreement,
_________________________________
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date: ___________________ CITIBANK, N.A., not in its
individual capacity but solely as
Indenture Trustee,
By:
______________________________
Authorized Signatory
A-2-6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
__________________ FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _________________________________________, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ________________________ */
Signature Guaranteed:
_____________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-2-7
EXHIBIT A-3
[FORM OF CLASS A-3 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $188,000,000(3)
No. R-________ CUSIP NO. 449182 BB 9
HYUNDAI AUTO RECEIVABLES TRUST 2004-A
2.97% ASSET BACKED NOTE, CLASS A-3
HYUNDAI AUTO RECEIVABLES TRUST 2004-A, a statutory trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of ONE HUNDRED EIGHTY-EIGHT MILLION
DOLLARS, payable on each Payment Date in an amount equal to the aggregate
amount, if any, payable from the Note Distribution Account in respect of
principal on the Class A-3 Notes pursuant to Section 3.01 of the Indenture dated
as of September 1, 2004 (the "Indenture"), between the Issuer and Citibank,
N.A., a national banking association, as Indenture Trustee (the "Indenture
Trustee"); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the earlier of May 15, 2009 (the "Class A-3
Maturity Date") and the Redemption Date, if any, pursuant to Article X of the
Indenture. Capitalized terms used but not defined herein are defined in the
Indenture, which also contains rules as to construction that shall be applicable
herein.
The Issuer will pay interest on this Note at the rate per
annum set forth above, on each Payment Date until the principal of this Note is
paid or made available for payment, on the
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(3) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
A-3-1
principal amount of this Note outstanding on the preceding Payment Date (after
giving effect to all payments of principal made on the preceding Payment Date),
subject to certain limitations contained in the last sentence of Section 3.01 of
the Indenture. Interest on this Note will accrue for each Payment Date from and
including the 15th day of the month preceding the month of such Payment Date
(or, in the case of the first Payment Date, from the Closing Date) to but
excluding the 15th day of the month of such Payment Date. Interest will be
computed on the basis of a 360-day year consisting of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
herein.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 2.97 % Asset Backed Notes, Class A-3 (herein called the "Class
A-3 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-3 Notes are subject to all
terms of the Indenture.
The Class A-3 Notes are and will be secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-3 Notes are
subordinated in right of payment to the Class A-1 Notes and the Class A-2 Notes
and are senior in right of payment to the Class A-4 Notes, the Class B Notes,
the Class C Notes and the Class D Notes, to the extent provided in the
Indenture.
Principal of the Class A-3 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day of
each month, or, if any such date is not a Business Day, the next succeeding
Business Day, commencing October 15, 2004.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Class A-3 Maturity Date and the
Redemption Date, if any, pursuant to Article X of the Indenture. Notwithstanding
the foregoing, if an Event of Default occurs, the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Controlling Class of Notes may declare the Notes to be immediately due
and payable in the manner provided in Section 5.02 of the Indenture. All
principal payments on the Class A-3 Notes shall be made pro rata to the Class
A-3 Noteholders entitled thereto. Payments of interest on this Note due and
payable on each Payment Date, together with the installment of principal, if
any, to the extent not in full payment of this Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Note
(or one or more Predecessor Notes) on the Note Register as of the close of
business on each Record Date,
A-3-2
except that with respect to Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in The City of New York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-3 Rate to the extent lawful.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes
of authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange subject to certain exceptions set forth in the
Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Seller, the Servicer, the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer, including the Seller or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of the Seller, the
Servicer, Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Seller, the Servicer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed and except that any
A-3-3
such partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
by accepting the benefits of the Indenture that such Noteholder or Note Owner
will not at any time institute against the Issuer or the Depositor, or join in
any institution against the Issuer or the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for purposes of federal and state income tax,
franchise tax and any other tax measured in whole or in part by income, the
Notes will be characterized as indebtedness secured by the Trust Estate. Each
Noteholder, by acceptance of a Note (and each Note Owner by acceptance of a
beneficial interest in a Note), agrees to treat the Notes for such purposes as
indebtedness.
This Note, or any interest therein, may not be transferred to
an "employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental, foreign or church plan subject to applicable law that is
substantially similar to the fiduciary responsibility provisions of ERISA or
Section 4975 of the Code, unless such transferee represents, warrants and
covenants that its purchase and holding of this Note, throughout the period that
it holds this Note is, and will be, covered by Department of Labor prohibited
transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE 91-38; PTE
84-14 or another applicable prohibited transaction exemption (or in the case of
a governmental, foreign, or church plan, subject to law that is substantially
similar to ERISA or Section 4975 of the Code, a similar type of exemption or
other applicable relief). By its acquisition of this Note in book-entry form or
any interest therein, each transferee will be deemed to have represented,
warranted and covenanted that it satisfies the foregoing requirements and the
Indenture Trustee may rely conclusively on the same for purposes hereof.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
A-3-4
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Holders of Notes or
the Controlling Class of Notes, as applicable, representing a majority of the
Outstanding Amount of all Notes or Controlling Class of Notes at the time
Outstanding. The Indenture also contains provisions permitting Holders of Notes
representing specified percentages of the Outstanding Amount of the Controlling
Class of Notes, on behalf of the Holders of all the Notes, to waive compliance
by the Issuer with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Indenture Trustee to amend or waive certain
terms and conditions set forth in the Indenture without the consent of Holders
of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, none of Wilmington Trust Company in
its individual capacity, Citibank, N.A. in its individual capacity, any owner of
a beneficial interest in the Issuer, the Seller, the Servicer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on this Note or
performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Indenture. The Holder of this Note by its
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
A-3-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: ______________________ HYUNDAI AUTO RECEIVABLES TRUST 2004-A
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but
solely as Owner Trustee under the
Trust Agreement,
__________________________________
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date: ___________________ CITIBANK, N.A., not in its
individual capacity but solely as
Indenture Trustee,
By:
_______________________________
Authorized Signatory
A-3-6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
__________________ FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _________________________________________, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ________________________ */
Signature Guaranteed:
_____________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-3-7
EXHIBIT A-4
[FORM OF CLASS A-4 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $92,100,000(4)
No. R-________ CUSIP NO. 449182 BC 7
HYUNDAI AUTO RECEIVABLES TRUST 2004-A
3.54 % ASSET BACKED NOTE, CLASS A-4
HYUNDAI AUTO RECEIVABLES TRUST 2004-A, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of NINETY-TWO MILLION ONE HUNDRED THOUSAND
DOLLARS, payable on each Payment Date in an amount equal to the aggregate
amount, if any, payable from the Note Distribution Account in respect of
principal on the Class A-4 Notes pursuant to Section 3.01 of the Indenture dated
as of September 1 2004 (the "Indenture"), between the Issuer and Citibank, N.A.,
a national banking association, as Indenture Trustee (the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on the earlier of August 15, 2011 (the "Class A-4 Maturity
Date") and the Redemption Date, if any, pursuant to Article X of the Indenture.
Capitalized terms used but not defined herein are defined in the Indenture,
which also contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum set
forth above, on each Payment Date until the principal of this Note is paid or
made available for payment, on the
- -----------------
(4) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
A-4-1
principal amount of this Note outstanding on the preceding Payment Date (after
giving effect to all payments of principal made on the preceding Payment Date),
subject to certain limitations contained in the last sentence of Section 3.01 of
the Indenture. Interest on this Note will accrue for each Payment Date from and
including the 15th day of the month preceding the month of such Payment Date
(or, in the case of the first Payment Date, from the Closing Date) to but
excluding the 15th day of the month of such Payment Date. Interest will be
computed on the basis of a 360-day year consisting of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
herein.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 3.54% Asset Backed Notes, Class A-4 (herein called the "Class
A-4 Notes"), all issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Class A-4 Notes are subject to all
terms of the Indenture.
The Class A-4 Notes are and will be secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-4 Notes are
subordinated in right of payment to the Class A-1 Notes, the Class A-2 Notes and
the Class A-3 Notes and are senior in right of payment to the Class B Notes, the
Class C Notes and the Class D Notes, to the extent provided in the Indenture.
Principal of the Class A-4 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day of
each month, or, if any such date is not a Business Day, the next succeeding
Business Day, commencing October 15, 2004.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Class A-4 Maturity Date and the
Redemption Date, if any, pursuant to Article X of the Indenture. Notwithstanding
the foregoing, if an Event of Default occurs, the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Controlling Class of Notes may declare the Notes to be immediately due
and payable in the manner provided in Section 5.02 of the Indenture. All
principal payments on the Class A-4 Notes shall be made pro rata to the Class
A-4 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of
A-4-2
this Note (or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Note be submitted for notation of
payment. Any reduction in the principal amount of this Note (or any one or more
Predecessor Notes) effected by any payments made on any Payment Date shall be
binding upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Payment Date, then the Indenture Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Payment Date by notice mailed or
transmitted by facsimile prior to such Payment Date, and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in The City of New
York.
The Issuer shall pay interest on overdue installments of interest at
the Class A-4 Rate to the extent lawful.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes
of authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange subject to certain exceptions set forth in the
Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Seller, the Servicer, the Indenture Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer, including the Seller or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Seller, the Servicer,
Indenture Trustee or the Owner Trustee in its individual capacity, any holder of
a beneficial interest in the Issuer, the Seller, the Servicer, the Owner Trustee
or the
A-4-3
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity. Each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, agrees that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under the Indenture, the Noteholder shall have no
claim against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Noteholder or Note Owner will
not at any time institute against the Issuer or the Depositor, or join in any
institution against the Issuer or the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for purposes of federal and state income tax, franchise tax
and any other tax measured in whole or in part by income, the Notes will be
characterized as indebtedness secured by the Trust Estate. Each Noteholder, by
acceptance of a Note (and each Note Owner by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for such purposes as indebtedness.
This Note, or any interest therein, may not be transferred to an
"employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental, foreign or church plan subject to applicable law that is
substantially similar to the fiduciary responsibility provisions of ERISA or
Section 4975 of the Code, unless such transferee represents, warrants and
covenants that its purchase and holding of this Note, throughout the period that
it holds this Note is, and will be, covered by Department of Labor prohibited
transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE 91-38; PTE
84-14 or another applicable prohibited transaction exemption (or in the case of
a governmental, foreign or church plan, subject to law that is substantially
similar to ERISA or Section 4975 of the Code, a similar type of exemption or
other applicable relief). By its acquisition of this Note in book-entry form or
any interest therein, each transferee will be deemed to have represented,
warranted and covenanted that it satisfies the foregoing requirements and the
Indenture Trustee may rely conclusively on the same for purposes hereof.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
A-4-4
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes or the Controlling
Class of Notes, as applicable, representing a majority of the Outstanding Amount
of all Notes or Controlling Class of Notes at the time Outstanding. The
Indenture also contains provisions permitting Holders of Notes representing
specified percentages of the Outstanding Amount of the Controlling Class of
Notes, on behalf of the Holders of all the Notes, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note (or any one or more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Indenture Trustee to amend or waive certain
terms and conditions set forth in the Indenture without the consent of Holders
of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws. No reference
herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this Note at the times,
place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, Citibank, N.A. in its individual capacity, any owner of a
beneficial interest in the Issuer, the Seller, the Servicer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on this Note or
performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Indenture. The Holder of this Note by its
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
A-4-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: HYUNDAI AUTO RECEIVABLES TRUST 2004-A
---------------------
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement,
----------------------------------
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: CITIBANK, N.A., not in its
----------------------- individual capacity but
solely as Indenture Trustee,
By:
------------------------------
Authorized Signatory
A-4-6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
__________________ FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto: ________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _________________________________________, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ________________________ */
Signature Guaranteed:
________________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-4-7
EXHIBIT B
[FORM OF CLASS B NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $36,500,000(5)
No. R-________ CUSIP NO. 449182 BD 5
HYUNDAI AUTO RECEIVABLES TRUST 2004-A
3.46% ASSET BACKED NOTE, CLASS B
HYUNDAI AUTO RECEIVABLES TRUST 2004-A, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of THIRTY-SIX MILLION FIVE HUNDRED
THOUSAND DOLLARS, payable on each Payment Date in an amount equal to the
aggregate amount, if any, payable from the Note Distribution Account in respect
of principal on the Class B Notes pursuant to Section 3.01 of the Indenture
dated as of September 1, 2004 (the "Indenture"), between the Issuer and
Citibank, N.A., a national banking association, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal amount
of this Note shall be due and payable on the earlier of August 15, 2011 (the
"Class B Maturity Date") and the Redemption Date, if any, pursuant to Article X
of the Indenture. Capitalized terms used but not defined herein are defined in
the Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer will pay interest on this Note at the rate per annum set
forth above, on each Payment Date until the principal of this Note is paid or
made available for payment, on the
- -----------------
(5) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
B-1
principal amount of this Note outstanding on the preceding Payment Date (after
giving effect to all payments of principal made on the preceding Payment Date),
subject to certain limitations contained in the last sentence of Section 3.01 of
the Indenture. Interest on this Note will accrue for each Payment Date from and
including the 15th day of the month preceding the month of such Payment Date
(or, in the case of the first Payment Date, from the Closing Date) to but
excluding the 15th day of the month of such Payment Date. Interest will be
computed on the basis of a 360-day year consisting of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
herein.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 3.46% Asset Backed Notes, Class B (herein called the "Class B
Notes"), all issued under the Indenture, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Class B Notes are subject to all terms of the
Indenture.
The Class B Notes are and will be secured by the collateral pledged as
security therefor as provided in the Indenture. The Class B Notes are
subordinated in right of payment to the Class A Notes and are senior in right of
payment to the Class C Notes and the Class D Notes, to the extent provided in
the Indenture.
Principal of the Class B Notes will be payable on each Payment Date in
an amount described on the face hereof. "Payment Date" means the 15th day of
each month, or, if any such date is not a Business Day, the next succeeding
Business Day, commencing October 15, 2004.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Class B Maturity Date and the
Redemption Date, if any, pursuant to Article X of the Indenture. Notwithstanding
the foregoing, if an Event of Default occurs, the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Controlling Class of Notes may declare the Notes to be immediately due
and payable in the manner provided in Section 5.02 of the Indenture. All
principal payments on the Class B Notes shall be made pro rata to the Class B
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of
B-2
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in The City of New York.
The Issuer shall pay interest on overdue installments of interest at
the Class B Rate to the extent lawful.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes
of authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange subject to certain exceptions set forth in the
Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Seller, the Servicer, the Indenture Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer, including the Seller or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Seller, the Servicer,
Indenture Trustee or the Owner Trustee in its individual capacity, any holder of
a beneficial interest in the Issuer, the Seller, the Servicer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed and except that any
B-3
such partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Noteholder or Note Owner will
not at any time institute against the Issuer or the Depositor, or join in any
institution against the Issuer or the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for purposes of federal and state income tax, franchise tax
and any other tax measured in whole or in part by income, the Notes will be
characterized as indebtedness secured by the Trust Estate. Each Noteholder, by
acceptance of a Note (and each Note Owner by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for such purposes as indebtedness.
This Note, or any interest therein, may not be transferred to an
"employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental, foreign or church plan subject to applicable law that is
substantially similar to the fiduciary responsibility provisions of ERISA or
Section 4975 of the Code, unless such transferee represents, warrants and
covenants that its purchase and holding of this Note, throughout the period that
it holds this Note is, and will be, covered by Department of Labor prohibited
transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE 91-38; PTE
84-14 or another applicable prohibited transaction exemption (or in the case of
a governmental, foreign or church plan, subject to law that is substantially
similar to ERISA or Section 4975 of the Code, a similar type of exemption or
other applicable relief). By its acquisition of this Note in book-entry form or
any interest therein, each transferee will be deemed to have represented,
warranted and covenanted that it satisfies the foregoing requirements and the
Indenture Trustee may rely conclusively on the same for purposes hereof.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
B-4
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes or the Controlling
Class of Notes, as applicable, representing a majority of the Outstanding Amount
of all Notes or Controlling Class of Notes at the time Outstanding. The
Indenture also contains provisions permitting Holders of Notes representing
specified percentages of the Outstanding Amount of the Controlling Class of
Notes, on behalf of the Holders of all the Notes, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note (or any one or more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Indenture Trustee to amend or waive certain
terms and conditions set forth in the Indenture without the consent of Holders
of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws of
the State of New York, without reference to its conflict of law provisions, and
the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, Citibank, N.A. in its individual capacity, any owner of a
beneficial interest in the Issuer, the Seller, the Servicer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on this Note or
performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Indenture. The Holder of this Note by its
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
B-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: HYUNDAI AUTO RECEIVABLES TRUST 2004-A
---------------------
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement,
----------------------------------
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: CITIBANK, N.A., not in its
----------------------- individual capacity but
solely as Indenture Trustee,
By:
------------------------------
Authorized Signatory
B-6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
__________________ FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto: ________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _________________________________________, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ________________________ */
Signature Guaranteed:
________________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
B-7
EXHIBIT C
[FORM OF CLASS C NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $26,900,000(6)
No. R-________ CUSIP NO. 449182 BE 3
HYUNDAI AUTO RECEIVABLES TRUST 2004-A
3.36% ASSET BACKED NOTE, CLASS C
HYUNDAI AUTO RECEIVABLES TRUST 2004-A, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of TWENTY-SIX MILLION NINE HUNDRED
THOUSAND DOLLARS, payable on each Payment Date in an amount equal to the
aggregate amount, if any, payable from the Note Distribution Account in respect
of principal on the Class C Notes pursuant to Section 3.01 of the Indenture
dated as of September 1, 2004 (the "Indenture"), between the Issuer and
Citibank, N.A., a national banking association, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal amount
of this Note shall be due and payable on the earlier of August 15, 2011 (the
"Class C Maturity Date") and the Redemption Date, if any, pursuant to Article X
of the Indenture. Capitalized terms used but not defined herein are defined in
the Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer will pay interest on this Note at the rate per annum set
forth above, on each Payment Date until the principal of this Note is paid or
made available for payment, on the
- -----------------
(6) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
C-1
principal amount of this Note outstanding on the preceding Payment Date (after
giving effect to all payments of principal made on the preceding Payment Date),
subject to certain limitations contained in the last sentence of Section 3.01 of
the Indenture. Interest on this Note will accrue for each Payment Date from and
including the 15th day of the month preceding the month of such Payment Date
(or, in the case of the first Payment Date, from the Closing Date) to but
excluding the 15th day of the month of such Payment Date. Interest will be
computed on the basis of a 360-day year consisting of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
herein.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 3.36% Asset Backed Notes, Class C (herein called the "Class C
Notes"), all issued under the Indenture, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Class C Notes are subject to all terms of the
Indenture.
The Class C Notes are and will be secured by the collateral pledged as
security therefor as provided in the Indenture. The Class C Notes are
subordinated in right of payment to the Class A Notes and the Class B Notes and
are senior in right of payment to the Class D Notes, to the extent provided in
the Indenture.
Principal of the Class C Notes will be payable on each Payment Date in
an amount described on the face hereof. "Payment Date" means the 15th day of
each month, or, if any such date is not a Business Day, the next succeeding
Business Day, commencing October 15, 2004.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Class C Maturity Date and the
Redemption Date, if any, pursuant to Article X of the Indenture. Notwithstanding
the foregoing, if an Event of Default occurs, the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Controlling Class of Notes may declare the Notes to be immediately due
and payable in the manner provided in Section 5.02 of the Indenture. All
principal payments on the Class C Notes shall be made pro rata to the Class C
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of
C-2
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in The City of New York.
The Issuer shall pay interest on overdue installments of interest at
the Class C Rate to the extent lawful.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes
of authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange subject to certain exceptions set forth in the
Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Seller, the Servicer, the Indenture Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer, including the Seller or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Seller, the Servicer,
Indenture Trustee or the Owner Trustee in its individual capacity, any holder of
a beneficial interest in the Issuer, the Seller, the Servicer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed and except that any
C-3
such partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Noteholder or Note Owner will
not at any time institute against the Issuer or the Depositor, or join in any
institution against the Issuer or the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for purposes of federal and state income tax, franchise tax
and any other tax measured in whole or in part by income, the Notes will be
characterized as indebtedness secured by the Trust Estate. Each Noteholder, by
acceptance of a Note (and each Note Owner by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for such purposes as indebtedness.
This Note, or any interest therein, may not be transferred to an
"employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental, foreign or church plan subject to applicable law that is
substantially similar to the fiduciary responsibility provisions of ERISA or
Section 4975 of the Code, unless such transferee represents, warrants and
covenants that its purchase and holding of this Note, throughout the period that
it holds this Note is, and will be, covered by Department of Labor prohibited
transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE 91-38; PTE
84-14 or another applicable prohibited transaction exemption (or in the case of
a governmental, foreign or church plan, subject to law that is substantially
similar to ERISA or Section 4975 of the Code, a similar type of exemption or
other applicable relief). By its acquisition of this Note in book-entry form or
any interest therein, each transferee will be deemed to have represented,
warranted and covenanted that it satisfies the foregoing requirements and the
Indenture Trustee may rely conclusively on the same for purposes hereof.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
C-4
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes or the Controlling
Class of Notes, as applicable, representing a majority of the Outstanding Amount
of all Notes or Controlling Class of Notes at the time Outstanding. The
Indenture also contains provisions permitting Holders of Notes representing
specified percentages of the Outstanding Amount of the Controlling Class of
Notes, on behalf of the Holders of all the Notes, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note (or any one or more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Indenture Trustee to amend or waive certain
terms and conditions set forth in the Indenture without the consent of Holders
of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture. The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, Citibank, N.A. in its individual capacity, any owner of a
beneficial interest in the Issuer, the Seller, the Servicer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on this Note or
performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Indenture. The Holder of this Note by its
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
C-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: HYUNDAI AUTO RECEIVABLES TRUST 2004-A
---------------------
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement,
----------------------------------
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: CITIBANK, N.A., not in its
----------------------- individual capacity but
solely as Indenture Trustee,
By:
------------------------------
Authorized Signatory
C-6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
__________________ FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto: ________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _________________________________________, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ________________________ */
Signature Guaranteed:
________________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
C-7
EXHIBIT D
[FORM OF CLASS D NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $32,800,000(7)
No. R-________ CUSIP NO. 449182 BF 0
HYUNDAI AUTO RECEIVABLES TRUST 2004-A
4.10% ASSET BACKED NOTE, CLASS D
HYUNDAI AUTO RECEIVABLES TRUST 2004-A, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of THIRTY-TWO MILLION EIGHT HUNDRED
THOUSAND DOLLARS, payable on each Payment Date in an amount equal to the
aggregate amount, if any, payable from the Note Distribution Account in respect
of principal on the Class D Notes pursuant to Section 3.01 of the Indenture
dated as of September 1, 2004 (the "Indenture"), between the Issuer and
Citibank, N.A., a national banking association, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal amount
of this Note shall be due and payable on the earlier of August 15, 2011 (the
"Class D Maturity Date") and the Redemption Date, if any, pursuant to Article X
of the Indenture. Capitalized terms used but not defined herein are defined in
the Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer will pay interest on this Note at the rate per annum set
forth above, on each Payment Date until the principal of this Note is paid or
made available for payment, on the
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(7) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
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principal amount of this Note outstanding on the preceding Payment Date (after
giving effect to all payments of principal made on the preceding Payment Date),
subject to certain limitations contained in the last sentence of Section 3.01 of
the Indenture. Interest on this Note will accrue for each Payment Date from and
including the 15th day of the month preceding the month of such Payment Date
(or, in the case of the first Payment Date, from the Closing Date) to but
excluding the 15th day of the month of such Payment Date. Interest will be
computed on the basis of a 360-day year consisting of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
herein.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 4.10% Asset Backed Notes, Class D (herein called the "Class D
Notes"), all issued under the Indenture, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Class D Notes are subject to all terms of the
Indenture.
The Class D Notes are and will be secured by the collateral pledged as
security therefor as provided in the Indenture. The Class D Notes are
subordinated in right of payment to the Class A Notes, the Class B Notes and the
Class C Notes, to the extent provided in the Indenture.
Principal of the Class D Notes will be payable on each Payment Date in
an amount described on the face hereof. "Payment Date" means the 15th day of
each month, or, if any such date is not a Business Day, the next succeeding
Business Day, commencing October 15, 2004.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Class D Maturity Date and the
Redemption Date, if any, pursuant to Article X of the Indenture. Notwithstanding
the foregoing, if an Event of Default occurs, the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Controlling Class of Notes may declare the Notes to be immediately due
and payable in the manner provided in Section 5.02 of the Indenture. All
principal payments on the Class D Notes shall be made pro rata to the Class D
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register as of the close of business on each Record Date, except
that with respect to Notes registered on the Record Date in the name of
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the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not noted hereon. If funds are expected to be available,
as provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in The City of New York.
The Issuer shall pay interest on overdue installments of interest at
the Class D Rate to the extent lawful.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new Notes
of authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange subject to certain exceptions set forth in the
Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Seller, the Servicer, the Indenture Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer, including the Seller or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Seller, the Servicer,
Indenture Trustee or the Owner Trustee in its individual capacity, any holder of
a beneficial interest in the Issuer, the Seller, the Servicer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed and except that any
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such partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Noteholder or Note Owner will
not at any time institute against the Issuer or the Depositor, or join in any
institution against the Issuer or the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for purposes of federal and state income tax, franchise tax
and any other tax measured in whole or in part by income, the Notes will be
characterized as indebtedness secured by the Trust Estate. Each Noteholder, by
acceptance of a Note (and each Note Owner by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for such purposes as indebtedness.
This Note, or any interest therein, may not be transferred to an
"employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental, foreign or church plan subject to applicable law that is
substantially similar to the fiduciary responsibility provisions of ERISA or
Section 4975 of the Code, unless such transferee represents, warrants and
covenants that its purchase and holding of this Note, throughout the period that
it holds this Note is, and will be, covered by Department of Labor prohibited
transaction class exemption ("PTE") 90-1; PTE 96-23; PTE 95-60; PTE 91-38; PTE
84-14 or another applicable prohibited transaction exemption (or in the case of
a governmental, foreign or church plan, subject to law that is substantially
similar to ERISA or Section 4975 of the Code, a similar type of exemption or
other applicable relief). By its acquisition of this Note in book-entry form or
any interest therein, each transferee will be deemed to have represented,
warranted and covenanted that it satisfies the foregoing requirements and the
Indenture Trustee may rely conclusively on the same for purposes hereof.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
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The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes or the Controlling
Class of Notes, as applicable, representing a majority of the Outstanding Amount
of all Notes or Controlling Class of Notes at the time Outstanding. The
Indenture also contains provisions permitting Holders of Notes representing
specified percentages of the Outstanding Amount of the Controlling Class of
Notes, on behalf of the Holders of all the Notes, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note (or any one or more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Indenture Trustee to amend or waive certain
terms and conditions set forth in the Indenture without the consent of Holders
of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture. The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, Citibank, N.A. in its individual capacity, any owner of a
beneficial interest in the Issuer, the Seller, the Servicer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on this Note or
performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Indenture. The Holder of this Note by its
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: HYUNDAI AUTO RECEIVABLES TRUST 2004-A
---------------------
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement,
----------------------------------
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: CITIBANK, N.A., not in its
----------------------- individual capacity but
solely as Indenture Trustee,
By:
------------------------------
Authorized Signatory
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
__________________ FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto: ________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _________________________________________, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ________________________ */
Signature Guaranteed:
________________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
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EXHIBIT E
FORM OF NOTE DEPOSITORY AGREEMENT
(Letter of Representations)