Exhibit 10.1
EXECUTION COPY
SALE AND SERVICING AGREEMENT
among
HYUNDAI AUTO RECEIVABLES TRUST 2004-A,
Issuer,
HYUNDAI ABS FUNDING CORPORATION,
Depositor,
HYUNDAI MOTOR FINANCE COMPANY,
Seller and Servicer,
and
CITIBANK, N.A.,
Indenture Trustee
Dated as of September 1, 2004
================================================================================
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions.................................................................1
Section 1.02 Other Definitional Provisions..............................................17
ARTICLE II.
CONVEYANCE OF RECEIVABLES
Section 2.01 Conveyance of Receivables..................................................18
ARTICLE III.
THE RECEIVABLES
Section 3.01 Representations and Warranties of the Seller...............................19
Section 3.02 Representations and Warranties of the Depositor............................19
Section 3.03 Repurchase Upon Breach.....................................................20
ARTICLE IV.
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01 Duties of Servicer.........................................................21
Section 4.02 Collection of Receivable Payments; Modifications of Receivables............22
Section 4.03 Realization upon Receivables...............................................22
Section 4.04 Physical Damage Insurance..................................................23
Section 4.05 Maintenance of Security Interests in Financed Vehicles.....................23
Section 4.06 Covenants of Servicer......................................................23
Section 4.07 Purchase of Receivables Upon Breach........................................24
Section 4.08 Servicing Fee..............................................................24
Section 4.09 Servicer's Certificate.....................................................25
Section 4.10 Annual Statement as to Compliance, Notice of Servicer Termination Event....25
Section 4.11 [Reserved].................................................................25
Section 4.12 Access to Certain Documentation and Information Regarding Receivables......25
Section 4.13 Term of Servicer...........................................................26
Section 4.14 Annual Independent Accountants' Report.....................................26
Section 4.15 Reports to the Commission..................................................26
Section 4.16 Compensation of Indenture Trustee..........................................26
ARTICLE V.
DISTRIBUTIONS; STATEMENTS TO SECURITYHOLDERS
Section 5.01 Post Office Box............................................................27
Section 5.02 Accounts...................................................................27
Section 5.03 Application of Collections.................................................29
Section 5.04 Purchased Amounts..........................................................29
i
Section 5.05 Distributions..............................................................29
Section 5.06 Reserve Account............................................................31
Section 5.07 Statements to Securityholders..............................................31
Section 5.08 Advances by the Servicer...................................................33
ARTICLE VI.
THE DEPOSITOR
Section 6.01 Representations of Depositor...............................................33
Section 6.02 Corporate Existence........................................................35
Section 6.03 Liability of Depositor; Indemnities........................................35
Section 6.04 Merger or Consolidation of, or Assumption of the Obligations of,
Depositor..................................................................35
Section 6.05 Amendment of Depositor's Organizational Documents..........................35
ARTICLE VII.
THE SERVICER
Section 7.01 Representations of Servicer................................................35
Section 7.02 Indemnities of Servicer....................................................36
Section 7.03 Merger or Consolidation of, or Assumption of the Obligations of,
Servicer...................................................................37
Section 7.04 Limitation on Liability of Servicer and Others.............................38
Section 7.05 Appointment of Subservicer.................................................38
Section 7.06 Servicer Not to Resign.....................................................39
ARTICLE VIII.
DEFAULT
Section 8.01 Servicer Termination Events................................................39
Section 8.02 Consequences of a Servicer Termination Event...............................40
Section 8.03 Appointment of Successor Servicer..........................................40
Section 8.04 Notification to Securityholders............................................41
Section 8.05 Waiver of Past Defaults....................................................41
ARTICLE IX.
TERMINATION
Section 9.01 Optional Purchase of All Receivables.......................................41
ARTICLE X.
MISCELLANEOUS
Section 10.01 Amendment..................................................................42
Section 10.02 Protection of Title to Trust...............................................42
Section 10.03 Notices....................................................................44
Section 10.04 Assignment by the Depositor or the Servicer................................44
Section 10.05 Limitations on Rights of Others............................................45
Section 10.06 Severability...............................................................45
ii
Section 10.07 Counterparts................................................................45
Section 10.08 Headings ...................................................................45
Section 10.09 GOVERNING LAW...............................................................45
Section 10.10 Assignment by Issuer........................................................45
Section 10.11 Nonpetition Covenants.......................................................45
Section 10.12 Limitation of Liability of Owner Trustee and Indenture Trustee..............45
Exhibit A Representations and Warranties of Hyundai Motor Finance Company
Under Section 3.02 of the Receivables Purchase Agreement
Exhibit B Form of Record Date Statement
Exhibit C Form of Servicer's Certificate
Exhibit D Extension Policy
Schedule A Schedule of Receivables
Schedule B Required Yield Supplement Overcollateralization Amount
iii
This SALE AND SERVICING AGREEMENT, dated as of September 1, 2004, among
HYUNDAI AUTO RECEIVABLES TRUST 2004-A, a Delaware statutory trust (the
"Issuer"), HYUNDAI ABS FUNDING CORPORATION, a Delaware corporation (the
"Depositor"), HYUNDAI MOTOR FINANCE COMPANY, a California corporation, as
servicer (in such capacity, the "Servicer") and as seller (in such capacity, the
"Seller"), and Citibank, N.A., a national banking association, as indenture
trustee (the "Indenture Trustee").
WHEREAS, the Issuer desires to purchase a portfolio of receivables
arising in connection with automobile retail installment sale contracts acquired
by the Seller in the ordinary course of business and sold by the Seller to the
Depositor;
WHEREAS, the Depositor is willing to sell such receivables to the
Issuer; and
WHEREAS, the Servicer is willing to service such receivables.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Administration Agreement" means the Owner Trust Administration
Agreement, dated as of September 1, 2004, among Hyundai Auto Receivables Trust
2004-A, Hyundai Motor Finance Company, and Citibank, N.A., a national banking
association, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Adjusted Pool Balance" means, with respect to any Payment Date, the
Pool Balance as of the end of the previous Collection Period less the Required
Yield Supplement Overcollateralization Amount with respect to such Payment Date.
"Advance" means, as to any Payment Date, an advance made by the
Servicer on such Payment Date pursuant to Section 5.08 in respect of the
aggregate of all Scheduled Payments of interest which were due during the
related Collection Period that remained unpaid at the end of such Collection
Period.
"Agreement" means this Sale and Servicing Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Amount Financed" means with respect to a Receivable, the amount
advanced under the Receivable toward the purchase price of the Financed Vehicle
and any related costs.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate
of finance charges stated in the related Contract.
1
"Available Amounts" means, with respect to any Payment Date, the sum of
the following amounts (without duplication) with respect to the related
Collection Period: (i) all Collections on Receivables, (ii) the Purchased Amount
of each Receivable that becomes a Purchased Receivable, (iii) Advances and (iv)
Recoveries.
"Available Amounts Shortfall" means, with respect to any Payment Date,
the positive difference, if any, of the Total Required Payment for such Payment
Date minus the Available Amounts for such Payment Date.
"Basic Documents" means the Trust Agreement, the Securities Account
Control Agreement, the Indenture, this Agreement, the Receivables Purchase
Agreement, the Administration Agreement, the Note Depository Agreement and other
documents and certificates delivered in connection therewith.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which a commercial banking institution in the states of California, Delaware
or New York are authorized or obligated by law or executive order to remain
closed.
"Certificate" means a certificate evidencing the beneficial interest of
a Certificateholder in the Trust.
"Certificateholders" has the meaning assigned to such term in the Trust
Agreement.
"Class" means any one of the classes of Notes.
"Class A Noteholders" means the Class A-1 Noteholders, the Class A-2
Noteholders, Class A-3 Noteholders and the Class A-4 Noteholders.
"Class A Notes" means the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes.
"Class A-1 Noteholder" means the Person in whose name a Class A-1 Note
is registered in the Note Register.
"Class A-1 Notes" means the 1.78125% Asset Backed Notes, Class A-1,
substantially in the form of Exhibit A-1 to the Indenture.
"Class A-1 Rate" means 1.78125% per annum, computed on the basis of an
actual/360-day year.
"Class A-2 Noteholder" means the Person in whose name a Class A-2 Note
is registered in the Note Register.
"Class A-2 Notes" means the 2.36% Asset Backed Notes, Class A-2,
substantially in the form of Exhibit A-2 to the Indenture.
"Class A-2 Rate" means 2.36% per annum, computed on the basis of a
360-day year consisting of twelve 30-day months.
2
"Class A-3 Noteholder" means the Person in whose name a Class A-3 Note
is registered in the Note Register.
"Class A-3 Notes" means the 2.97% Asset Backed Notes, Class A-3,
substantially in the form of Exhibit A-3 to the Indenture.
"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 Noteholder" means the Person in whose name a Class A-4 Note
is registered in the Note Register.
"Class A-4 Notes" means the 3.54% Asset Backed Notes, Class A-4,
substantially in the form of Exhibit A-4 to the Indenture.
"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 Maturity Date" means August 15, 2011.
"Class B Noteholder" means the Person in whose name a Class B Note is
registered in the Note Register.
"Class B Notes" means the 3.46% Asset Backed Notes, Class B,
substantially in the form of Exhibit B to the Indenture.
"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 Maturity Date" means August 15, 2011.
"Class C Noteholder" means the Person in whose name a Class C Note is
registered in the Note Register.
"Class C Notes" means the 3.36% Asset Backed Notes, Class C,
substantially in the form of Exhibit C to the Indenture.
"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 Maturity Date" means August 15, 2011.
"Class D Noteholder" means the Person in whose name a Class D Note is
registered in the Note Register.
"Class D Notes" means the 4.10% Asset Backed Notes, Class D,
substantially in the form of Exhibit D to the Indenture.
3
"Class D Rate" means 4.10% per annum, computed on the basis of a
360-day year consisting of twelve 30-day months.
"Closing Date" means September 1, 2004.
"CFR" means the Code of Federal Regulations.
"Collateral" has the meaning specified in the Granting Clause of the
Indenture.
"Collection" means, with respect to any Receivable and to the extent
received by the Servicer after the Cutoff Date, (i) any monthly payment by or on
behalf of the Obligor thereunder, (ii) full or partial prepayment of that
Receivable, (iii) all Liquidation Proceeds and (iv) any other amounts received
by the Servicer which, in accordance with the customary servicing practices,
would be applied to the payment of accrued interest or to reduce the Principal
Balance of that Receivable; provided, however, that the term "Collection" in no
event will include (1) any amounts in respect of any Receivable purchased by the
Servicer, the Seller or the Depositor on a prior Payment Date, (2) any late
fees, extension fees, non-sufficient funds charges and any and all other
administrative fees or similar charges allowed by applicable law with respect to
any Receivable and payable to the Servicer.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 5.02(b)(i).
"Collection Period" means each fiscal month of the Servicer during the
term of this Agreement. With respect to any Determination Date or Payment Date,
the "related Collection Period" means the Collection Period preceding the fiscal
month in which such Determination Date or Payment Date occurs.
"Commission" means the Securities and Exchange Commission.
"Contract" means a motor vehicle retail installment sale contract.
"Controlling Class" means with respect to any Notes that are
Outstanding, the Class A Notes (voting together as a single class) so long as
the Class A Notes are Outstanding, and thereafter the Class B Notes so long as
any Class B Notes are Outstanding, and thereafter 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, excluding in each case, Notes held by the
Depositor, the Servicer or their affiliates.
"Conveyed Assets" has the meaning provided in Section 2.01.
"Corporate Trust Administration Department" has the meaning set forth
in the Trust Agreement.
"Corporate Trust Office" has the meaning set forth in the Indenture.
4
"Credit and Collection Policy" means the credit and collection
practices, policies and procedures of HMFC as in effect as of the Closing Date
and any subsequent amendments thereto unless the context indicates otherwise.
"Cutoff Date" means the close of business on July 31, 2004.
"Dealer" means the dealer who sold a Financed Vehicle and who
originated the related Receivable and assigned it to HMFC pursuant to a Dealer
Agreement.
"Dealer Agreement" means an agreement between HMFC and a Dealer
pursuant to which such Dealer sells Contracts to HMFC.
"Defaulted Receivables" means any Receivable (a) on which any
installment is unpaid more than sixty (60) days past its original due date (as
defined in the Credit and Collection Policy) or (b) the Obligor of which has
suffered an Insolvency Event.
"Deliver" or "Delivered": when used with respect to Trust Account
Property means when the relevant steps specified below are accomplished with
respect to such Trust Account Property:
(i) if such Trust Account Property is an instrument or a certificated
security (each as defined in the UCC), by (a) delivering such instrument or
security certificate to the Eligible Institution then maintaining the applicable
Eligible Account either registered in the name of such Eligible Institution, or
indorsed, by an effective endorsement, to the Eligible Institution or in blank
(provided, that no endorsement shall be required for certificated securities in
bearer form), (b) causing such Eligible Institution to maintain (on behalf of
the Indenture Trustee) continuous possession of such instrument or security
certificate, (c) causing the Eligible Institution to credit such instrument or
certificated security to the appropriate Eligible Account (d) causing the
Eligible Institution to agree to treat all such instruments and certificated
securities as "financial assets" (as defined in the UCC) and (e) causing the
Eligible Institution to agree pursuant to a Control Agreement that it will
comply with "entitlement orders" (as defined in the UCC) originated by the
Indenture Trustee with respect to each security entitlement (as defined in the
UCC) relating to such instruments and certificated securities without further
consent by the Depositor, the Issuer or any other Person;
(ii) if such Trust Account Property is a security entitlement (as
defined in the UCC), by (a) causing the Eligible Institution then maintaining
the applicable Eligible Account to become the entitlement holder of such
security entitlement, (b) causing the Eligible Institution to credit such
security entitlement to the appropriate Eligible Account thereby creating a
securities entitlement with respect to the financial asset underlying such
securities entitlement and (c) causing the Eligible Institution to agree
pursuant to a Control Agreement that it will comply with "entitlement orders"
(as defined in the UCC) originated by the Indenture Trustee with respect to each
security entitlement (as defined in the UCC) without further consent by the
Depositor, Issuer or any other Person;
(iii) if such Trust Account Property is an uncertificated security (as
defined in the UCC), by (a) causing the Eligible Institution then maintaining
the applicable Eligible Account to become the registered owner of such
uncertificated security, (b) causing such registration to
5
remain effective and (c) causing the Eligible Institution to credit such
uncertificated security to the appropriate Eligible Account thereby creating a
securities entitlement with respect to the uncertificated security and (c)
causing the Eligible Institution to agree pursuant to a Control Agreement that
it will comply with "entitlement orders" (as defined in the UCC) originated by
the Indenture Trustee with respect to each security entitlement (as defined in
the UCC) without further consent by the Depositor, Issuer or any other Person;
(iv) if such Trust Account Property consists of deposit accounts (as
defined in the UCC) by either (X) causing the Indenture Trustee to be the
customer with respect to such deposit accounts or (Y) causing the bank
maintaining such deposit account to enter into a Control Agreement pursuant to
which it agrees to comply with all instructions issued by the Indenture Trustee
without further consent by the Depositor, Issuer or any other Person;
(v) in the case of any general intangibles, by causing an effective
financing statement naming the Issuer as debtor and the Indenture Trustee as
secured party and covering such general intangibles to be filed in the location
(within the meaning of Section 9-307 of the UCC) of the Issuer; and
(vi) in the case of any Trust Account Property not covered above or as
an additional method of delivery for any of the foregoing, by delivering to the
Indenture Trustee a legal opinion of counsel reasonably satisfactory to the
Indenture Trustee specifying another method of delivery that will result in the
Indenture Trustee having a valid and perfected security interest therein and by
delivery in compliance with the method specified in such legal opinion.
"Depositor" means Hyundai ABS Funding Corporation, a Delaware
corporation, and its successors in interest.
"Determination Date" means, with respect to each Payment Date, the
earlier of the tenth calendar day of the month in which such Payment Date occurs
(or if such tenth day is not a Business Day, the next succeeding Business Day).
"Eligible Account" means a segregated securities account with an
Eligible Institution.
"Eligible Institution" means the following:
(a) a depository institution or trust company
(i) whose commercial paper, short-term unsecured debt
obligations or other short-term deposits are rated
"P-1" by Moody's or "A-1+" by Standard & Poor's or
"F1" by Fitch, if the deposits are to be held in the
account for 30 days or less, or
(ii) whose long-term unsecured debt obligations are
rated at least "Aa3" by Moody's or "AA-" by Standard
& Poor's or "AA-" by Fitch, if the deposits are to be
held in the account more than 30 days, or
6
(b) a segregated trust account or accounts maintained in the
trust department of a federal or state-chartered depository
institution having a combined capital and surplus of at least
$50,000,000 and subject to regulations regarding fiduciary
funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), or
(c) any other institution that the Rating Agencies shall
approve in writing.
"Eligible Investments" means book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form and that evidence:
(a) direct obligations of, and obligations fully guaranteed as
to the full and timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
of any depository institution (including any affiliate of the
Depositor, the Servicer, the Indenture Trustee or the Owner Trustee) or
trust company incorporated under the laws of the United States of
America or any state thereof or the District of Columbia (or any
domestic branch of a foreign bank) and subject to supervision and
examination by Federal or state banking or depository institution
authorities (including depository receipts issued by any such
institution or trust company as custodian with respect to any
obligation referred to in the first bullet point above or a portion of
such obligation for the benefit of the holders of such depository
receipts); provided that at the time of the investment or contractual
commitment to invest therein (which shall be deemed to be made again
each time funds are reinvested following each Payment Date), the
commercial paper or other short-term senior unsecured debt obligations
(other than such obligations the rating of which is based on the credit
of a person other than such depository institution or trust company) of
such depository institution or trust company shall have a credit rating
from each Rating Agency in the highest investment category granted
thereby;
(c) commercial paper (including commercial paper of any
affiliate of Depositor, the Servicer, the Indenture Trustee or the
Owner Trustee) having, at the time of the investment or contractual
commitment to invest therein, a rating from each Rating Agency in the
highest investment category granted thereby;
(d) investments in money market funds (including funds for
which the Depositor, the Servicer, the Indenture Trustee or the Owner
Trustee or any of their respective affiliates is investment manager or
advisor) having a rating from each of Moody's and Standard & Poor's in
the highest investment category granted thereby;
(e) bankers' acceptances issued by any depository institution
or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that
is a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) described in clause (b);
7
(g) any other investment with respect to which the Issuer, the
Indenture Trustee or the Servicer has received written notification
from each Rating Agency that the acquisition of such investment will
satisfy the Rating Agency Condition.
"Eligible Servicer" means Hyundai Motor Finance Company or any other
Person that at the time of its appointment as Servicer (i) is servicing a
portfolio of motor vehicle retail installment sale contracts or motor vehicle
installment loans, (ii) is legally qualified and has the capacity to service the
Receivables, (iii) has demonstrated the ability professionally and competently
to service a portfolio of motor vehicle retail installment sale contracts or
motor vehicle installment loans similar to the Receivables with reasonable skill
and care and (iv) has a minimum net worth of $100,000,000.
"Extension Policy" shall mean the policies of the Servicer with respect
to granting extensions on the Contracts as set forth on Exhibit D hereto.
"Fee Letter" means the letter regarding fees dated September 1, 2004
between the Depositor, the Owner Trustee and HMFC.
"Financed Vehicle" means a new or used automobile, light-duty truck,
van or minivan, together with all accessions thereto, securing an Obligor's
indebtedness under the related Contract.
"First Priority Principal Distribution Amount" means, with respect to
any Payment Date, an amount, not less than zero, equal to the result of (i) the
aggregate outstanding principal amount of the Class A Notes as of the preceding
Payment Date (after giving effect to any principal payments made on the Class A
Notes on that preceding Payment Date), minus (ii) the Adjusted Pool Balance at
the end of the Collection Period preceding that Payment Date; provided, however,
that the First Priority Principal Distribution Amount shall not exceed the sum
of the aggregate outstanding principal amount of all of the Notes on that
Payment Date (after giving effect to any principal payments made on the Notes on
that preceding Payment Date); and provided further, that the First Priority
Principal Distribution Amount on and after the Stated Maturity Date of a class
of Class A Notes shall not be less than the amount that is necessary to reduce
the outstanding principal amount of such class of the Class A Notes and all
earlier maturing classes of Class A Notes to zero.
"Fitch" means Fitch, Inc., and its successors.
"HMFC" means Hyundai Motor Finance Company, a California corporation,
and its successors.
"Indenture" means the Indenture, dated as of September 1, 2004, between
the Issuer and the Indenture Trustee, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Indenture Trustee" means the Person acting as Indenture Trustee under
the Indenture, its successors in interest and any successor trustee under the
Indenture.
"Initial Class A-1 Note Balance" means $155,000,000.
8
"Initial Class A-2 Note Balance" means $215,000,000.
"Initial Class A-3 Note Balance" means $188,000,000.
"Initial Class A-4 Note Balance" means $92,100,000.
"Initial Class B Note Balance" means $36,500,000.
"Initial Class C Note Balance" means $26,900,000.
"Initial Class D Note Balance" means $32,800,000.
"Initial Pool Balance" means, an amount equal to the aggregate
Principal Balance of the Receivables as of the Cutoff Date.
"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in an
involuntary case under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person's affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or (b)
the commencement by such Person 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 such Person to the entry of an order for relief in an
involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing.
"Interest Distribution Account" means, the account designated as such,
established and maintained pursuant to Section 5.02(b)(iv).
"Interest Period" means, with respect to the Class A-1 Notes, the
period from and including the most recent Payment Date on which interest has
been paid (or, in the case of the first Payment Date, the Closing Date) to but
excluding the next succeeding Payment Date and, with respect 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, the period from and including the 15th day of the
calendar month (or, in the case of the first Payment Date, from and including
the Closing Date) to but excluding the 15th day of the next calendar month.
"Investment Earnings" means, with respect to any Payment Date, any
investment earnings (net of losses and investment expenses) on amounts on
deposit in a Trust Account.
"Issuer" means Hyundai Auto Receivables Trust 2004-A.
9
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that attach to the respective Receivable by operation of law as a result of any
act or omission by the related Obligor.
"Liquidated Receivable" means a Receivable with respect to which the
earliest of the following shall have occurred: (i) the related Financed Vehicle
has been repossessed and liquidated, (ii) the related Financed Vehicle has been
repossessed for 90 days or more and has not yet been liquidated, (iii) the end
of the Collection Period in which the Receivable becomes more than 120 days past
due, or (iv) the Servicer has determined in accordance with its collection
policies that all amounts that it expects to receive with respect to the
Receivable have been received.
"Liquidation Proceeds" means, with respect to any Liquidated
Receivable, all proceeds of the liquidation of such Liquidated Receivable, net
of the sum of any out-of-pocket expenses of the Servicer reasonably allocated to
the repossession, transport, reconditioning and liquidation and any amounts
required by law to be remitted or allocated to the account of the Obligor on
such Liquidated Receivable.
"Local Remittance Account" has the meaning provided in Section 5.02(a).
"Lockbox Bank" means Citibank, N.A. or an Eligible Institution.
"Monthly Remittance Condition" means (i)(A) the short-term debt of the
Servicer is rated in the highest rating category, or is otherwise acceptable to,
each Rating Agency and (B) no Servicer Termination Event has occurred or (ii)(A)
the Servicer obtains a letter of credit, surety bond or insurance policy under
which demands for payment may be made to secure the timely remittance of
Collections and Available Amounts to the Collection Account and (B) the
Indenture Trustee is provided with confirmation from each Rating Agency to the
effect that the use of such alternative remittance schedule will not result in
the qualification, reduction or withdrawal of its then-current rating on any
Class of Notes.
"Moody's" means Moody's Investors Service, Inc., and its successors.
"Note Balance" means, as of any date of determination, an amount equal
to (a) the sum of (i) the Initial Class A-1 Note Balance, (ii) the Initial Class
A-2 Note Balance, (iii) the Initial Class A-3 Note Balance, (iv) the Initial
Class A-4 Note Balance, (v) the Initial Class B Note Balance, (vi) the Initial
Class C Note Balance and (vii) the Initial Class D Note Balance less (b) all
amounts distributed to Noteholders on or prior to such date and allocable to
principal thereon.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.02(b)(ii).
"Note Pool Factor" means, with respect to each Class of Notes as of the
close of business on the last day of a Collection Period, a seven-digit decimal
figure equal to the Outstanding Amount of such Class of Notes (after giving
effect to any reductions thereof to be made on the immediately following Payment
Date) divided by the original Outstanding Amount of such Class
10
of Notes. The Note Pool Factor will be 1.0000000 as of the Closing Date;
thereafter, the Note Pool Factor will decline to reflect reductions in the
Outstanding Amount of such Class of Notes.
"Noteholders" shall mean the Class A-1 Noteholders, the Class A-2
Noteholders, the Class A-3 Noteholders, the Class A-4 Noteholders, the Class B
Noteholders, the Class C Noteholders or the Class D Noteholders.
"Obligor" means a person who obtained installment credit for the
purchase of a Financed Vehicle the terms of which are evidenced by a Contract,
and any other person obligated to make payments thereunder.
"Officers' Certificate" means a certificate signed by (a) the chairman
of the board, any vice president, the controller or any assistant controller and
(b) the president, a treasurer, assistant treasurer, secretary or assistant
secretary of the Depositor or the Servicer, as appropriate.
"Opinion of Counsel" means one or more written opinions of counsel, who
may be an employee of or counsel to the Depositor or the Servicer, which counsel
shall be acceptable to the Indenture Trustee, the Owner Trustee or the Rating
Agencies, as applicable, and which shall be addressed to the Owner Trustee and
the Indenture Trustee.
"Outstanding Amount" means, as of any date of determination, the
aggregate principal amount of a Class of Notes outstanding as of such date of
determination.
"Owner Trustee" means Wilmington Trust Company, acting not in its
individual capacity but solely as owner trustee under the Trust Agreement.
"Payment Date" means, with respect to each Collection Period, the 15th
day of the following month or, if such day is not a Business Day, the
immediately following Business Day, commencing on October 15, 2004.
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery" above.
"Pool Balance" means, with respect to any Payment Date, an amount equal
to the aggregate Principal Balance of the Receivables at the end of the related
Collection Period, after giving effect to all payments of principal received
from Obligors and Purchased Amounts to be remitted by the Servicer for such
Collection Period and reduction to zero of the aggregate outstanding Principal
Balance of all Receivables that became Liquidated Receivables during such
Collection Period.
"Post Office Box" means any post office boxes maintained by the Lockbox
Bank pursuant to a separate arrangement with the Servicer and not through the
Corporate Trust Office of the Indenture Trustee, to which payments on
receivables owned or serviced by HMFC are or will be sent.
"Principal Balance" means, as of any time with respect to any
Receivable, the principal balance of such Receivable as of the close of business
on the last day of the preceding Collection
11
Period under the terms of the Receivable determined in accordance with the
customary servicing practices.
"Principal Distribution Account" means that account designated as such
established and maintained pursuant to Section 5.02(b)(iv).
"Purchased Amount" means, with respect to any Receivable that became a
Purchased Receivable, the unpaid principal balance owed by the Obligor thereon
plus interest on such amount at the applicable APR to the last day of the
Collection Period of repurchase.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by or on behalf of the Servicer
pursuant to Section 4.07 of this Agreement or by or on behalf of the Seller
pursuant to Section 7.02 of the Receivables Purchase Agreement.
"Rating Agency" means Fitch, Moody's or Standard & Poor's, as the
context may require. If none of Fitch, Moody's, Standard & Poor's or a successor
thereto remains in existence, "Rating Agency" shall mean any nationally
recognized statistical rating organization or other comparable Person designated
by the Depositor and, written notice of which designation shall be given to the
Owner Trustee, the Indenture Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' (or such shorter period as shall be
acceptable to each Rating Agency) prior notice thereof and that each Rating
Agency shall not have notified the Issuer or the Indenture Trustee in writing
that such action will result in a reduction, withdrawal or down-grade of the
then-current rating of each class of Notes.
"Realized Losses" means, with respect to any Receivable that becomes a
Liquidated Receivable, the excess of the Principal Balance thereof over the
portion of related Liquidation Proceeds allocable to principal.
"Receivable" means any Contract listed on Schedule A (which Schedule
may be in the form of microfiche).
"Receivable Files" means the following documents with respect to each
Financed Vehicle:
(i) the fully executed original of each Receivable (together
with any agreements modifying each such Receivable, including any
extension agreement);
(ii) the original credit application, or a copy thereof, fully
executed by each Obligor thereon;
(iii) the original certificate of title or such other
documents evidencing the security interest of the Seller in the related
Financed Vehicle; and
12
(iv) any and all other documents that the Servicer shall have
kept on file in accordance with its customary procedures relating to
Receivables, Obligors or Financed Vehicles.
"Receivables Purchase Agreement" means the Receivables Purchase
Agreement dated as of September 1, 2004, between the Seller and the Depositor,
as amended, supplemented, amended and restated or otherwise modified from time
to time.
"Record Date" means, as to any Payment Date, the day immediately
preceding such Payment Date.
"Recoveries" means, with respect to any Receivable that becomes a
Liquidated Receivable, monies collected in respect thereof (other than
Liquidation Proceeds), from whatever source, net of the sum of any amounts
expended by the Servicer for the account of the Obligor and any amounts required
by law to be remitted or allocated to the account of the Obligor.
"Regular Principal Distribution Amount" means, with respect to any
Payment Date, an amount no less than zero equal to the excess, if any, of (i)
the aggregate outstanding principal amount of the Notes immediately preceding
such Payment Date over (ii)(a) the Adjusted Pool Balance as of the last day of
the related Collection Period minus (b) the Target Overcollateralization Amount
with respect to such Payment Date; provided, however, that the Regular Principal
Distribution Amount shall not exceed the sum of the aggregate outstanding
principal amount of all of the Notes on such Payment Date (after giving effect
to any principal payments made on the Notes on such Payment Date in respect of
the First Priority Principal Distribution Amount, the Second Priority Principal
Distribution Amount, and the Third Priority Principal Distribution Amount, if
any); and provided further, that the Regular Principal Distribution Amount on or
after the Class D Stated Maturity Date shall not be less than the amount that is
necessary to reduce the outstanding principal amount of the Class D Notes to
zero.
"Required Yield Supplement Overcollateralization Amount" means with
respect to any Payment Date, the dollar amount set forth next to such Payment
Date on Schedule B hereto.
"Reserve Account" means the account designated as such, established by
the Issuer and maintained by the Indenture Trustee pursuant to Section
5.02(b)(iii).
"Reserve Account Deposit" means $5,770,077.89.
"Reserve Account Required Amount" means with respect to any Payment
Date, an amount equal to 0.75% of the Adjusted Pool Balance as of the Cutoff
Date; provided, however, that in no event shall the Reserve Account Required
Amount on any Payment Date be more than the aggregate outstanding principal
amount of the Notes on such Payment Date (after giving effect to the allocation
of principal payments on such Payment Date).
"Reserve Account Withdrawal Amount" means, with respect to each Payment
Date, the lesser of (x) the Available Amounts Shortfall with respect to such
Payment Date and (y) and the amount on deposit in the Reserve Account on such
Payment Date.
13
"Responsible Officer" means the chairman of the board, the president,
any executive vice president, any vice president, the treasurer, any assistant
treasurer, the secretary, or any assistant secretary of the Servicer.
"Scheduled Payment" means, with respect to each Receivable, the
scheduled monthly payment amount set forth in the related Contract and required
to be paid by the Obligor during each Collection Period.
"Second Priority Principal Distribution Amount" means, with respect to
any Payment Date, an amount not less than zero equal to (i) the sum of the
aggregate outstanding principal amount of the Class A Notes and the Class B
Notes as of the preceding Payment Date (after giving effect to any principal
payments made on the Class A Notes and the Class B Notes on that preceding
Payment Date), minus (ii) the Adjusted Pool Balance at the end of the Collection
Period preceding that Payment Date, minus (iii) the First Priority Principal
Distribution Amount; provided, however, that the Second Priority Principal
Distribution Amount shall not exceed the sum of the aggregate outstanding
principal amount of all of the Notes on that Payment Date (after giving effect
to any principal payments made on the Notes on that preceding Payment Date); and
provided further, that the Second Priority Principal Distribution Amount on and
after the Class B Maturity Date shall not be less than the amount that is
necessary to reduce the outstanding principal amount of the Class B Notes to
zero.
"Securities" means the Notes and the Certificates.
"Securities Account Control Agreement" means the Securities Account
Control Agreement dated as of September 1, 2004 between the Trust, the Indenture
Trustee and the Securities Intermediary, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Securities Intermediary" means Citibank, N.A., in its capacity as the
securities intermediary in the Securities Account Control Agreement.
"Securityholders" means the Noteholders and/or the Certificateholders,
as the context may require.
"Seller" means HMFC and its successors in interest as seller of the
Receivables to the Depositor pursuant to the Receivables Purchase Agreement.
"Servicer" means HMFC, as the servicer of the Receivables, and each
successor to HMFC (in the same capacity) pursuant to Section 7.03 or 8.03.
"Servicer Termination Event" has the meaning set forth in Section 8.01.
"Servicer's Certificate" means an Officers' Certificate of the Servicer
delivered pursuant to Section 4.09, substantially in the form of Exhibit C.
"Servicing Fee" means an amount equal to the product of the Servicing
Fee Rate and the Pool Balance as of the first day of the related Collection
Period.
14
"Servicing Fee Rate" means 1.00% per annum.
"Simple Interest Method" means the method of allocating the monthly
payments received with respect to a Receivable to interest in an amount equal to
the product of (i) the applicable APR, (ii) the period of time (expressed as a
fraction of a year, based on the actual number of days in the calendar month and
365 days in the calendar year) elapsed since the preceding payment was made
under such Receivable and (iii) the outstanding principal amount of such
Receivable, and allocating the remainder of each such monthly payment to
principal.
"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., and its successors.
"Stated Maturity Date" means, for each class of Notes, the respective
date set forth opposite such class of Notes in the table below or, if such date
is not a Business Day, the next succeeding Business Day:
Class Stated Maturity Date
----- --------------------
Class A-1 Notes September 15, 2005
Class A-2 Notes September 15, 2007
Class A-3 Notes May 15, 2009
Class A-4 Notes August 15, 2011
Class B Notes August 15, 2011
Class C Notes August 15, 2011
Class D Notes August 15, 2011
"Target Overcollateralization Amount" means, with respect to any
Payment Date, the greater of (a) 8.00% of the Adjusted Pool Balance, minus
amounts on deposit in the Reserve Account after withdrawals from the Reserve
Account but prior to deposits to the Reserve Account, in each case, on such
Payment Date and (b) 1.25% of the Adjusted Pool Balance as of the Cut-off Date.
Notwithstanding the foregoing, the Target Overcollateralization Amount shall not
exceed the Adjusted Pool Balance on such Payment Date.
"Third Priority Principal Distribution Amount" means, with respect to
any Payment Date, an amount not less than zero equal to (i) the sum of the
aggregate outstanding principal amount of the Class A Notes, the Class B Notes
and the Class C Notes as of the preceding Payment Date (after giving effect to
any principal payments made on the Class A Notes, the Class B Notes and
15
the Class C Notes on that preceding Payment Date), minus (ii) the Adjusted Pool
Balance at the end of the Collection Period, minus (iii) the First Priority
Principal Distribution Amount, minus (iv) the Second Priority Principal
Distribution Amount; provided, however, that the Third Priority Principal
Distribution Amount shall not exceed the sum of the aggregate outstanding
principal amount of all of the Notes on that Payment Date (after giving effect
to any principal payments made on the Notes on that preceding Payment Date); and
provided further, that the Third Priority Principal Distribution Amount on and
after the Class C Maturity Date shall not be less than the amount that is
necessary to reduce the outstanding principal amount of the Class C Notes to
zero.
"Total Required Payment" means (a) with respect to any Payment Date
prior to the occurrence of an "Event of Default" under the Indenture which has
resulted in the acceleration of the Notes, the sum of (i) the Servicing Fee for
the related Collection Period and all unpaid Servicing Fees from prior
Collection Periods, (ii) unreimbursed Advances, (iii) the accrued and unpaid
interest on the Notes, (iv) an amount equal to the change in the Adjusted Pool
Balance during the related Collection Period, and (v) on or after the Stated
Maturity Date of any class of Notes, an amount necessary to reduce the
outstanding principal amount of such class of Notes to zero, and (b) with
respect to any Payment Date following the occurrence and during the continuation
of an "Event of Default" under the Indenture which has resulted in an
acceleration of the Notes, until the Payment Date on which the outstanding
principal amount of all the Notes has been paid in full, the sum of (i) the
specified amounts payable to the Indenture Trustee, (ii) the Servicing Fee for
the related Collection Period and all unpaid Servicing Fees from prior
Collection Periods, (iii) unreimbursed Advances, (iv) the accrued and unpaid
interest on the Notes and (v) the amount necessary to reduce the outstanding
principal amount of all the Notes to zero.
"Trust" means the Issuer.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account and all proceeds of the
foregoing.
"Trust Accounts" shall mean the Collection Account, the Note
Distribution Account and the Reserve Account.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated
as of September 1, 2004, between the Depositor, the Administrator and the Owner
Trustee, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Trust Officer" means, in the case of the Indenture Trustee or any
Officer within the Corporate Trust Office of the Indenture Trustee, as the case
may be, including any Vice President, Assistant Vice President, Assistant
Treasurer, Assistant Secretary or any other officer of the Indenture 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 Indenture and, with respect to the
Owner Trustee, any officer in the Corporate Trust Administration
16
Department of the Owner Trustee with direct responsibility for the
administration of the Trust Agreement and the other Basic Documents on behalf of
the Owner Trustee.
"UCC" means the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
Section 1.02 Other Definitional Provisions.
(a) Capitalized terms used herein that are not otherwise
defined has the meanings ascribed thereto in the Indenture or, if not defined
therein, in the Trust Agreement.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Article, Section,
Schedule and Exhibit references contained in this Agreement are references to
Articles, Sections, Schedules and Exhibits in or to this Agreement unless
otherwise specified; "or" shall include "and/or"; and the term "including" shall
mean "including without limitation".
(e) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
(f) 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.
17
ARTICLE II.
CONVEYANCE OF RECEIVABLES
Section 2.01 Conveyance of Receivables.
In consideration of the Issuer's delivery to or upon the order of the
Depositor of $744,846,492.76, the Certificates and such other amounts to be
distributed to the Depositor on the Closing Date, the Depositor does hereby
sell, transfer, assign, set over and otherwise convey to the Issuer, without
recourse (subject to the obligations of the Depositor set forth herein), all
right, title and interest of the Depositor in and to:
(i) the Receivables and all moneys received thereon on or
after the Cutoff Date;
(ii) the security interests in the Financed Vehicles and any
accessions thereto granted by Obligors pursuant to the Receivables and
any other interest of the Depositor in such Financed Vehicles;
(iii) any Liquidation Proceeds and any other proceeds with
respect to the Receivables from claims on any physical damage, credit
life or disability insurance policies covering the Financed Vehicles or
the related Obligors, including any vendor's single interest or other
collateral protection insurance policy;
(iv) any property that shall have secured a Receivable and
shall have been acquired by or on behalf of the Depositor, the Servicer
or the Trust;
(v) all documents and other items contained in the Receivable
Files;
(vi) all of the Depositor's rights (but not its obligations)
under the Receivables Purchase Agreement;
(vii) all right, title and interest in the Trust Accounts and
all funds, securities or other assets credited from time to time to the
Trust Accounts and in all investments therein and proceeds thereof
(including all Investment Earnings thereon);
(viii) any proceeds from any Receivable repurchased by a
Dealer pursuant to a Dealer Agreement; and
(ix) the proceeds of any and all of the foregoing
(collectively, with the assets listed in clauses (i) through (viii)
above, the "Conveyed Assets").
It is the intention of the Depositor that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Conveyed Assets
from the Depositor to the Trust and the beneficial interest in and title to the
Receivables and the related property shall not be part of the Depositor's estate
in the event of the filing of a bankruptcy petition by or against the Depositor
under any bankruptcy law. In the event that, notwithstanding the intent of the
Depositor, the transfer and assignment contemplated hereby is held not to be a
sale or is otherwise not effective
18
to sell the Conveyed Assets, this Agreement shall constitute a grant by the
Depositor to the Issuer of a security interest in all Conveyed Assets and all
accounts, money, chattel paper, securities, instruments, documents, deposit
accounts, uncertificated securities, general intangibles, contract rights, goods
and other property consisting of, arising from or relating to such Conveyed
Assets, for the benefit of the Securityholders.
ARTICLE III.
THE RECEIVABLES
Section 3.01 Representations and Warranties of the Seller.
(a) The Seller has made each of the representations and
warranties set forth in Exhibit A hereto under the Receivables Purchase
Agreement and has consented to the assignment by the Depositor to the Issuer of
the Depositor's rights with respect thereto. Such representations and warranties
speak as of the execution and delivery of this Agreement and as of the Closing
Date, but shall survive the sale, transfer and assignment of the Receivables to
the Issuer and the pledge of such Receivables to the Indenture Trustee. Pursuant
to Section 2.01 of this Agreement, the Depositor has sold, assigned, transferred
and conveyed to the Issuer, as part of the assets of the Issuer, its rights
under the Receivables Purchase Agreement, including the representations and
warranties of the Seller therein as set forth in Exhibit A, upon which
representations and warranties the Issuer relies in accepting the Receivables
and delivering the Securities, together with all rights of the Depositor with
respect to any breach thereof, including the right to require the Seller to
repurchase Receivables in accordance with the Receivables Purchase Agreement. It
is understood and agreed that the representations and warranties referred to in
this Section shall survive the sale and delivery of the Receivables to the
Issuer.
(b) The Seller hereby agrees that the Issuer shall have the
right to enforce any and all rights under the Receivables Purchase Agreement
assigned to the Issuer herein, including the right to cause the Seller to
repurchase any Receivable with respect to which it is in breach of any of its
representations and warranties set forth in Exhibit A, directly against the
Seller as though the Issuer were a party to the Receivables Purchase Agreement,
and the Issuer shall not be obligated to exercise any such rights indirectly
through the Depositor.
Section 3.02 Representations and Warranties of the Depositor. The
Depositor makes the following representations and warranties, on which the
Issuer relies in accepting the Receivables and delivering the Securities. Such
representations and warranties speak as of the execution and delivery of this
Agreement and as of the Closing Date, but shall survive the sale, transfer and
assignment of the Receivables by the Depositor to the Issuer and the pledge
thereof to the Indenture Trustee pursuant to the Indenture:
(a) This Agreement creates a valid and continuing security
interest (as defined in the UCC) in the Receivables in favor of the Issuer,
which security interest is prior to all other Liens, and is enforceable as such
against creditors of and purchasers from the Depositor.
(b) Each Receivable constitutes "chattel paper" within the
meaning of the UCC.
19
(c) Immediately upon the transfer thereof from the Depositor
to the Issuer pursuant to this Agreement, the Issuer shall have good and
marketable title to each Receivable, free and clear of any Lien of any Person.
(d) The Depositor has caused, or will have caused, within ten
days, the filing of all appropriate financing statements in the proper filing
office in the appropriate jurisdiction under the applicable UCC in order to
perfect the security interest in the Receivables granted to the Issuer under
this Agreement.
(e) Other than the security interest granted to the Issuer
pursuant to this Agreement, the Depositor has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Receivables.
The Depositor has not authorized the filing of and is not aware of any financing
statements against the Depositor that include a description of collateral
describing the Receivables other than any financing statement relating to the
security interest granted to the Issuer under this Agreement. The Depositor is
not aware of any judgment or tax lien filings against the Depositor.
(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 Issuer, except for
such marks or notations indicating that they have been pledged, assigned or
otherwise conveyed (i) to the Depositor or the Indenture Trustee 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 Depositor in favor of the Issuer in
connection with this Agreement 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 Sale and
Servicing Agreement, will violate the rights of the Issuer."
Section 3.03 Repurchase Upon Breach. The Depositor, the Owner Trustee,
the Indenture Trustee, the Seller, and the Servicer shall inform the other
parties to this Agreement promptly, in writing, upon the discovery of any breach
of the Seller's representations and warranties made pursuant to Section 3.01 of
this Agreement or Section 3.02 of the Receivables Purchase Agreement, without
regard to any limitation set forth in such representation or warranty concerning
the knowledge of the Seller as to the facts stated therein. The occurrence of a
breach of any of the Seller's representations and warranties contained in
Section 3.01 of this Agreement or Section 3.02(b) of the Receivables Purchase
Agreement with respect to any Receivable shall constitute an event obligating
the Seller to repurchase such Receivables if the interests of the Depositor, the
Indenture Trustee, the Owner Trustee, the Issuer or the Securityholders are
materially and adversely affected by such breach (each, a "Repurchase Event"),
at the Purchased Amount, from the Depositor or from the Issuer, as applicable,
unless any such breach shall have been cured by the last day of the first
Collection Period following the discovery or notice thereof by or to the Seller
or the Servicer. In consideration of the repurchase of any such Receivable, the
20
Seller shall remit the Purchased Amount to the Collection Account and notify in
writing the Indenture Trustee of such deposit, in the manner specified in
Section 5.04. The sole remedy of the Issuer, the Indenture Trustee, the
Noteholders, or the Certificateholders with respect to a breach of
representations and warranties contained in Section 3.01 of this Agreement or
Section 3.02(b) of the Receivables Purchase Agreement shall be to require the
Seller to repurchase the affected Receivables.
ARTICLE IV.
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01 Duties of Servicer. The Servicer, for the benefit of the
Issuer and the Indenture Trustee, shall manage, service, administer and make
collections on the Receivables and perform the other actions required of the
Servicer under this Agreement. The Servicer shall service the Receivables in
accordance with its customary and usual procedures and consistent with the
procedures employed by institutions that service motor vehicle retail
installment sale contracts. The Servicer's duties shall include the collection
and posting of all payments, responding to inquiries of Obligors, investigating
delinquencies, sending payment statements to Obligors, reporting any required
tax information to Obligors, monitoring the Collateral, accounting for
collections, furnishing monthly and annual statements to the Owner Trustee and
the Indenture Trustee with respect to distributions and performing the other
duties specified herein. The Servicer also shall administer and enforce all
rights of the holder of the Receivables under the Receivables and the Dealer
Agreements. To the extent consistent with the standards, policies and procedures
otherwise required hereby and the Credit and Collection Policy, the Servicer
shall follow its customary standards, policies and procedures and shall have
full power and authority, acting alone, to do any and all things in connection
with the managing, servicing, administration and collection of the Receivables
that it may deem necessary or desirable. Without limiting the generality of the
foregoing, the Servicer is hereby authorized and empowered to execute and
deliver, on behalf of itself, the Issuer, the Owner Trustee, the Indenture
Trustee, the Certificateholders and the Noteholders, or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments with respect to the Receivables
and with respect to the Financed Vehicles; provided, however, that
notwithstanding the foregoing, the Servicer shall not, except pursuant to an
order from a court of competent jurisdiction or as required by applicable law,
release an Obligor from payment of any unpaid amount due under any Receivable,
reduce the related APR or waive the right to collect the unpaid balance of any
Receivable from an Obligor. The Servicer is hereby authorized to commence, in
its own name or in the name of the Issuer, the Indenture Trustee, the Owner
Trustee, the Certificateholders or the Noteholders, a legal proceeding to
enforce a Receivable pursuant to Section 4.03 or to commence or participate in
any other legal proceeding (including a bankruptcy proceeding) relating to or
involving a Receivable, an Obligor or a Financed Vehicle. If the Servicer
commences or participates in any such legal proceeding in its own name, the
Indenture Trustee or the Issuer shall thereupon be deemed to have automatically
assigned the applicable Receivable to the Servicer solely for purposes of
commencing or participating in such proceeding as a party or claimant, and the
Servicer is authorized and empowered by the Indenture Trustee or the Issuer to
execute and deliver in the Indenture Trustee's or the Issuer's name any notices,
demands, claims, complaints, responses, affidavits or other documents or
instruments in connection with any such proceeding.
21
If in any enforcement suit or legal proceeding it shall be held that the
Servicer may not enforce a Receivable on the ground that it shall not be a real
party in interest or a holder entitled to enforce such Receivable, the Owner
Trustee shall, at the Servicer's expense and direction, take steps to enforce
such Receivable, including bringing suit in its name or the name of the Issuer,
the Indenture Trustee, the Certificateholders or the Noteholders. The Owner
Trustee and the Indenture Trustee shall upon the written request of the Servicer
furnish the Servicer with any powers of attorney and other documents reasonably
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
Section 4.02 Collection of Receivable Payments; Modifications of
Receivables.
(a) Consistent with the standards, policies and procedures required by
this Agreement, the Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Receivables as and
when the same shall become due, and shall follow such collection procedures as
it follows with respect to all comparable motor vehicle receivables that it
services for itself or others and otherwise act with respect to the Receivables
in such a manner as will, in the reasonable judgment of the Servicer, maximize
the amount to be received by the Trust with respect thereto. The Servicer is
authorized in its discretion to waive any prepayment charge, late payment charge
or any other similar fees that may be collected in the ordinary course of
servicing any Receivable.
(b) The Servicer may grant payment extensions in accordance with its
customary procedures if the Servicer believes in good faith that such extension
is necessary to avoid a default on such Receivable, will maximize the amount to
be received by the Trust with respect to such Receivable and is otherwise in the
best interests of the Trust; provided, that no such extension shall extend the
final payment date on any Receivable beyond the last day of the Collection
Period ending three months prior to the Class D Maturity Date. Anything herein
to the contrary notwithstanding, the Servicer shall grant payment extensions
with respect to a Receivable only to the extent permissible in its extension
policy in effect from time to time, which policy in effect as of the date hereof
is attached hereto as Exhibit D. Generally, a Contract may be extended for at
most one month per extension and there may not be more than six extensions
during the life of the Contract.
(c) Upon any extension not in accordance with this Section, the
Servicer shall be required to purchase the related Receivable in accordance with
Section 4.07.
Section 4.03 Realization upon Receivables. Consistent with the
standards, policies and procedures required by this Agreement and the Credit and
Collection Policy, the Servicer shall use its best efforts to repossess or
otherwise convert the ownership of and liquidate any Financed Vehicle securing a
Receivable with respect to which the Servicer shall have determined that
eventual payment in full is unlikely. The Servicer shall begin such repossession
and conversion procedures as soon as practicable after default on such
Receivable; provided, however, that the Servicer may elect not to repossess a
Financed Vehicle within such time period if in its good faith judgment it
determines that the proceeds ultimately recoverable with respect to such
Receivable would be increased by forbearance. In repossessing or otherwise
converting the ownership of a Financed Vehicle and liquidating a Receivable, the
Servicer is authorized to follow such customary practices and procedures as it
shall deem necessary or advisable,
22
consistent with the standard of care required by Section 4.01, which practices
and procedures may include reasonable efforts to realize upon any recourse to
Dealers, the sale of the related Financed Vehicle at public or private sale, the
submission of claims under an insurance policy and other actions by the Servicer
in order to realize upon a Receivable; provided, however, that in any case in
which the Financed Vehicle shall have suffered damage, the Servicer shall not
expend funds in connection with any repair or towards the repossession of such
Financed Vehicle unless it shall determine in its reasonable judgment that such
repair or repossession shall increase the related Liquidation Proceeds by an
amount materially greater than the expense for such repair or repossession. The
Servicer shall be entitled to recover all reasonable expenses incurred by it in
the course of repossessing and liquidating a Financed Vehicle into cash
proceeds, but only out of the cash proceeds of the sale of such Financed
Vehicle, any deficiency obtained from the related Obligor or any amounts
received from recourse to the related Dealer.
Section 4.04 Physical Damage Insurance. The Servicer shall, in
accordance with its customary servicing procedures, require each Obligor to
obtain and maintain physical loss damage insurance covering the related Financed
Vehicle as of the execution of the related Receivable.
Section 4.05 Maintenance of Security Interests in Financed Vehicles.
(a) The Servicer shall, in accordance with its customary servicing
procedures, take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle.
The Servicer is hereby authorized to take such steps as are necessary to
re-perfect such security interest on behalf of the Issuer and the Indenture
Trustee in the event of the relocation of a Financed Vehicle, or for any other
reason. In the event that the assignment of a Receivable to the Issuer is
insufficient, without a notation on the related Financed Vehicle's certificate
of title, or without fulfilling any additional administrative requirements under
the laws of the state in which such Financed Vehicle is located, to perfect a
security interest in the related Financed Vehicle in favor of the Issuer, the
Servicer hereby agrees that the designation of HMFC as the secured party on the
certificate of title is in its capacity as agent of the Issuer.
(b) The Depositor, the Trust, the Indenture Trustee, and the Servicer
hereby agree that, upon a Servicer Termination Event, the Indenture Trustee may
take or cause to be taken such actions as may, in the opinion of counsel to the
Indenture Trustee, be necessary to perfect or re-perfect the security interests
in the Financed Vehicles in the name of the Issuer, including by amending the
title documents of the Financed Vehicles. The Servicer hereby agrees to pay all
expenses related to such perfection or reperfection and to take all action
necessary therefor.
Section 4.06 Covenants of Servicer. By its execution and delivery of
this Agreement, the Servicer hereby covenants as follows (upon which covenants
the Issuer, the Indenture Trustee and the Owner Trustee rely in accepting the
Receivables and delivering the applicable Securities):
23
(a) Liens in Force. No Financed Vehicle securing a Receivable shall be
released in whole or in part from the security interest granted by such
Receivable, except upon payment in full of such Receivable or as otherwise
contemplated herein;
(b) No Impairment. The Servicer shall do nothing to impair the rights
of the Trust in the property of the Trust;
(c) No Amendments. The Servicer shall not extend or otherwise amend the
terms of any Receivable, except in accordance with Section 4.02 and the Servicer
shall not amend or modify the Credit and Collection Policy if such amendment or
modification may have a material adverse effect on the interest of the
Noteholders; and
(d) Restrictions on Liens. The Servicer shall not (A) create, incur or
suffer to exist, or agree to create, incur or suffer to exist, or consent to or
permit in the future (upon the occurrence of a contingency or otherwise) the
creation, incurrence or existence of any Lien on or restriction on
transferability of any Receivable except for the Lien of the Indenture and the
restrictions on transferability imposed by this Agreement or (B) file any UCC
financing statements in any jurisdiction that names HMFC, the Servicer or the
Depositor as a debtor, and any Person other than the Depositor, the Indenture
Trustee or the Issuer as a secured party, or sign any security agreement
authorizing any secured party thereunder to file any such financing statement
with respect to the Receivables or the related property.
Section 4.07 Purchase of Receivables Upon Breach. Upon discovery by any
of the Servicer, the Seller, the Depositor, the Owner Trustee, or the Indenture
Trustee of a breach of any of the covenants set forth in Sections 4.02, 4.05 or
4.06, the party discovering such breach shall give prompt written notice to the
other parties; provided, however, that the failure to give any such notice shall
not affect any obligation of the Servicer under this Section 4.07. On or before
the last day of the first Collection Period following its discovery or receipt
of notice of the breach of any covenant set forth in Sections 4.02, 4.05 or 4.06
that materially and adversely affects the interests of the Issuer, the Indenture
Trustee, the Owner Trustee, the Certificateholders or the Noteholders in any
Receivable, the Servicer shall, unless such breach shall have been cured in all
material respects by such date, purchase from the Issuer the Receivable affected
by such breach. In consideration of the purchase of any such Receivable, the
Servicer shall remit the related Purchased Amount into the Collection Account,
with written notice to the Indenture Trustee of such deposit, in the manner
specified in Section 5.04. Subject to Section 7.02, it is understood and agreed
that the obligation of the Servicer to purchase any Receivable with respect to
which such a breach has occurred and is continuing shall, if such obligation is
fulfilled, constitute the sole remedy against the Servicer for such breach
available to the Issuer, the Owner Trustee, the Indenture Trustee, the
Certificateholders or the Noteholders.
Section 4.08 Servicing Fee. The Servicing Fee shall be payable to the
Servicer on each Payment Date. The Servicing Fee shall be calculated on the
basis of a 360-day year comprised of twelve 30-day months. The Servicer shall be
required to pay all expenses incurred by it in connection with its activities
under this Agreement (including taxes imposed on the Servicer and expenses
incurred in connection with distributions and reports made by the Servicer to
the Owner Trustee and the Indenture Trustee). The Servicer shall be required to
pay all of the Indenture Trustee's fees, expenses, reimbursements and
indemnifications.
24
Section 4.09 Servicer's Certificate. The Servicer shall prepare and
deliver to the Owner Trustee, the Indenture Trustee, and the Depositor, with a
copy to each Rating Agency, two Business Days prior to each Payment Date a
Servicer's Certificate containing all information necessary to make the
distributions to be made on the related Payment Date pursuant to Section 5.05
for the related Collection Period and any other information the Indenture
Trustee may reasonably request and such Servicer's Certificate shall be
certified by a Responsible Officer of the Servicer to the effect that the
information provided is complete and no defaults have occurred. If any defaults
have occurred, such Servicer's Certificate will provide an explanation of such
defaults. Receivables to be purchased by the Servicer or to be repurchased by
the Seller and each Receivable that became a Liquidated Receivable shall be
identified by the Servicer by account number with respect to such Receivable (as
specified in the applicable Schedule of Receivables).
Section 4.10 Annual Statement as to Compliance, Notice of Servicer
Termination Event.
(a) The Servicer shall deliver to the Owner Trustee, the Indenture
Trustee, and each Rating Agency, within 120 days after the end of the Servicer's
fiscal year (or, in the case of the first such certificate, not later than April
30, 2005), an Officer's Certificate signed by a Responsible Officer of the
Servicer, stating that (i) a review of the activities of the Servicer during the
preceding 12-month period (or such shorter period in the case of the first such
Officer's Certificate) and of the performance of its obligations under this
Agreement has been made under such officer's supervision and (ii) to such
officer's knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement throughout such period or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof.
(b) The Servicer shall deliver to the Owner Trustee, the Indenture
Trustee, and each Rating Agency, promptly after having obtained knowledge
thereof, but in no event later than two Business Days thereafter, written notice
in an Officer's Certificate of any event that with the giving of notice or lapse
of time or both would become a Servicer Termination Event under Section 8.01.
Section 4.11 [Reserved]
Section 4.12 Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to representatives of the Owner Trustee,
the Indenture Trustee, the Certificateholders and the Noteholders reasonable
access to the documentation regarding the Receivables and the related Trust
property. The Servicer will provide such access to any Certificateholder and
Noteholder only in such cases where the Certificateholder or Noteholder shall be
required by applicable statutes or regulations to review such documentation. In
each case, access shall be afforded without charge, but only upon reasonable
request and during the normal business hours at the offices of the Servicer.
Nothing in this Section shall affect the obligation of the Servicer to observe
any applicable law prohibiting disclosure of information regarding the Obligors
and the failure of the Servicer to provide access to information as a result of
such obligation shall not constitute a breach of this Section.
25
Section 4.13 Term of Servicer. The Servicer hereby covenants and agrees
to act as Servicer under, and for the term of, this Agreement, subject to the
provisions of Sections 7.03 and 7.06.
Section 4.14 Annual Independent Accountants' Report. The Servicer shall
cause a firm of independent certified public accountants, which may also render
other services to the Servicer or its Affiliates, to deliver to the Owner
Trustee, the Indenture Trustee, and each Rating Agency, within 120 days after
the end of each fiscal year (or, in the case of the first such report, not later
than April 30, 2005), a report addressed to the Board of Directors of the
Servicer, the Owner Trustee, and the Indenture Trustee, to the effect that such
firm has audited the books and records of the Servicer and issued its report
thereon and that (i) such audit was made in accordance with generally accepted
auditing standards and accordingly included such tests of the accounting records
and such other auditing procedures as such firm considered necessary in the
circumstances and (ii) the firm is independent of the Depositor and the Servicer
within the meaning of the Code of Professional Ethics of the American Institute
of Certified Public Accountants.
Section 4.15 Reports to the Commission. The Servicer shall, on behalf
of the Issuer, execute and cause to be filed with the Commission any periodic
reports required to be filed with respect to the issuance of the Notes under the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder. The Seller shall, at its expense,
cooperate in any reasonable request made by the Servicer in connection with such
filings.
Section 4.16 Compensation of Indenture Trustee. The Servicer will:
(a) pay the Indenture Trustee (and any separate trustee or
co-trustee appointed pursuant to Section 6.10 of the Indenture (a "Separate
Trustee")) from time to time reasonable compensation for all services rendered
by the Indenture Trustee or Separate Trustee, as the case may be, under the
Indenture (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee or any Separate Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Indenture Trustee or Separate Trustee, as the case may be, in accordance with
any provision of the Indenture (including the reasonable compensation, expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
(c) indemnify the Indenture Trustee and any Separate Trustee and
their respective agents for, and hold them harmless against, any losses,
liability or expense incurred without negligence or bad faith on their part,
arising out of or in connection with the acceptance or administration of the
transactions contemplated by the Indenture and the other Basic Documents,
including the reasonable costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their powers or duties under the Indenture; and
26
(d) indemnify the Owner Trustee and its agents, successors, assigns
and servants in accordance with Section 8.02 of the Trust Agreement to the
extent that amounts thereunder have not been paid pursuant to Section 5.05 of
this Agreement.
ARTICLE V.
DISTRIBUTIONS; STATEMENTS TO SECURITYHOLDERS
Section 5.01 Post Office Box. All payments and other proceeds of any
type and from any source on or with respect to the Receivables that are
delivered to a Post Office Box shall be the property of the Trust, subject to
the Lien of the Indenture and the rights of the Indenture Trustee thereunder.
Section 5.02 Accounts.
(a) The Servicer has established an account or accounts in the name
of HMFC (the "Local Remittance Account"). All payments on the Receivables mailed
by Obligors or any other Person to a Post Office Box or otherwise delivered to
the Servicer shall be deposited by the Lockbox Bank, as remittance processor
pursuant to a separate arrangement with the Servicer not through the Corporate
Trust Office of the Indenture Trustee, or the Servicer, as applicable, on a
daily basis into the Local Remittance Account, from which the available funds
related to the Receivables will be swept by the Servicer within two Business
Days to the Collection Account; provided, however, that if the Servicer fails to
transfer such payments to the Collection Account within two Business Days or the
Servicer shall for any reason no longer be acting as Servicer, HMFC at its
expense shall deliver to the successor Servicer all documents and records
relating to the Post Office Boxes and cause the Lockbox Bank pursuant to a
separate arrangement with the Servicer not through the Corporate Trust Office of
the Indenture Trustee to transfer payments related to the Receivables directly
from the Post Office Box to the Collection Account. Amounts on deposit in the
Local Remittance Account shall not be invested.
(b) (i) On or prior to the Closing Date, the Servicer shall
establish, or cause to be established, an account with and in the name of the
Indenture Trustee (the "Collection Account"), which shall be maintained as an
Eligible Account and shall bear a designation clearly indicating that the
amounts deposited thereto are held for the benefit of the Noteholders.
(ii) The Issuer, for the benefit of the Noteholders, shall cause
the Servicer to establish with and maintain in the name of the
Indenture Trustee an Eligible Account (including the subaccounts
referred to in clause (iv) below, the "Note Distribution Account"),
bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Noteholders.
(iii) The Issuer, for the benefit of the Noteholders, shall cause
the Servicer to establish with and maintain in the name of the
Indenture Trustee an Eligible Account (the "Reserve Account"), bearing
a designation clearly indicating that the funds deposited therein are
held for the benefit of the Noteholders.
27
(iv) The Issuer shall also cause to be established two
administrative subaccounts within the Note Distribution Account, which
subaccounts shall be designated the "Interest Distribution Account" and
the "Principal Distribution Account", respectively. The Interest
Distribution Account and the Principal Distribution Account are
established and maintained solely for administrative purposes.
(v) Funds on deposit in the Reserve Account shall be invested by
the Indenture Trustee in Eligible Investments selected in writing by
the Servicer; provided, however, that if the Servicer fails to select
any Eligible Investment, such funds shall remain uninvested. All such
Eligible Investments shall be held by the Indenture Trustee for the
benefit of the Noteholders and/or the Certificateholders, as
applicable. Other than as permitted in writing by the Rating Agencies,
funds on deposit in the Reserve Account shall be invested in Eligible
Investments that will mature not later than the Business Day
immediately preceding the next Payment Date. Funds deposited in the
Reserve Account, upon the maturity of any Eligible Investments on a day
which immediately precedes a Payment Date, are not required to be
invested overnight.
(vi) Funds on deposit in the Collection Account shall be invested
by the Indenture Trustee in Eligible Investments selected in writing by
the Servicer; provided, however, that if the Servicer fails to select
any Eligible Investment, such funds shall remain uninvested. All such
Eligible Investments shall be held by the Indenture Trustee for the
benefit of the Noteholders and/or the Certificateholders, as
applicable. Funds on deposit in the Collection Account shall be
invested in Eligible Investments that will mature not later than the
Business Day immediately preceding the next Payment Date. Funds
deposited in the Collection Account, upon the maturity of any Eligible
Investments on a day which immediately precedes a Payment Date, are not
required to be invested overnight. Investment earnings on funds
deposited in the Collection Account, net of losses and investment
expenses, shall be released to the Servicer on each Payment Date and
shall be the property of the Servicer.
(c) (i) The Indenture Trustee shall possess all right, title and
interest in all funds received and all funds on deposit from time to time in a
Post Office Box and the Local Remittance Account in each case only with respect
to the Receivables, the Trust Accounts and in all proceeds thereof (including
all income thereon). The Trust Accounts shall be under the sole dominion and
control of the Indenture Trustee for the benefit of the Noteholders and the
Certificateholders, as the case may be. If, at any time, a Trust Account ceases
to be an Eligible Account, the Indenture Trustee (or the Servicer on its behalf)
shall within 5 Business Days (or such longer period, not to exceed 15 calendar
days, as to which each Rating Agency may consent) establish a new Trust Account
as an Eligible Account and shall transfer any cash or any investments from the
account that is no longer an Eligible Account to the Trust Account. The
Indenture Trustee shall not in anyway be held liable by reason of any
insufficiency in any Trust Account resulting from any investment loss in any
Eligible Investment.
(ii) The Servicer shall have the power, revocable by the Indenture
Trustee or by the Owner Trustee with the consent of the Indenture
Trustee, to instruct the Indenture Trustee in writing to make
withdrawals and payments from the Trust Accounts
28
and the Certificate Deposit Account for the purpose of withdrawing any
amounts deposited in error into such accounts.
Section 5.03 Application of Collections. All payments received from or
on behalf of an Obligor during each Collection Period with respect to each
Receivable (other than a Purchased Receivable) shall be applied to interest and
principal in accordance with the Simple Interest Method. The Servicer shall make
all deposits of Collections and other Available Amounts received into the
Collection Account on the second Business Day following receipt thereof.
However, so long as the Monthly Remittance Condition is satisfied, the Servicer
may retain such amounts received during a Collection Period until the Business
Day immediately preceding the related Payment Date.
Section 5.04 Purchased Amounts. The Servicer or the Seller shall
deposit or cause to be deposited in the Collection Account, on or prior to each
Determination Date, the aggregate Purchased Amount with respect to Purchased
Receivables and the Servicer shall deposit therein all amounts to be paid under
Section 4.07. Notice of this amount shall be provided in writing by the
applicable party to the Indenture Trustee.
Section 5.05 Distributions.
(a) The Servicer shall calculate all amounts required to be
deposited pursuant to this Section and deliver a Servicer's Certificate two
Business Days prior to each Payment Date pursuant to Section 4.09.
(b) On each Payment Date, except as specified in Section 5.04(b) of
the Indenture, the Servicer shall instruct the Indenture Trustee in writing
(based on the information contained in the Servicer's Certificate delivered two
Business Days prior to each Payment Date pursuant to Section 4.09) to make the
following deposits and distributions from Available Amounts on deposit in the
Collection Account, and in the event of an Available Amounts Shortfall from
amounts withdrawn from the Reserve Account in the following order and priority:
(i) to the Servicer, the Servicing Fee, including any unpaid
Servicing Fees with respect to one or more prior Collection Periods,
and Advances not previously reimbursed to the Servicer;
(ii) to the Interest Distribution Account, (a) the aggregate amount
of interest accrued for the related Interest Period on each of the
Class A Notes at their respective interest rates on the principal
outstanding as of the previous Payment Date after giving effect to all
payments of principal to the Class A Noteholders on the preceding
Payment Date; and (b) the excess, if any, of the amount of interest
payable to the Class A Noteholders on those prior Payment Dates over
the amounts actually paid to the Class A Noteholders on those prior
Payment Dates, plus interest on any such shortfall at their respective
interest rates to the extent permitted by law;
(iii) to the Principal Distribution Account, the First Priority
Principal Distribution Amount, if any;
29
(iv) to the Interest Distribution Account, (a) the aggregate amount
of interest accrued for the related Interest Period on each of the
Class B Notes at the Class B Rate on the principal outstanding as of
the previous Payment Date after giving effect to all payments of
principal to the Class B Noteholders on the preceding Payment Date; and
(b) the excess, if any, of the amount of interest payable to the Class
B Noteholders on prior Payment Dates over the amounts actually paid to
the Class B Noteholders on those prior Payment Dates, plus interest on
any such shortfall at the Class B Rate to the extent permitted by law;
(v) to the Principal Distribution Account, the Second Priority
Principal Distribution Amount, if any;
(vi) to the Interest Distribution Account, (a) the aggregate amount
of interest accrued for the related Interest Period on each of the
Class C Notes at the Class C Rate on the principal outstanding as of
the previous Payment Date after giving effect to all payments of
principal to the Class C Noteholders on the preceding Payment Date; and
(b) the excess, if any, of the amount of interest payable to the Class
C Noteholders on prior Payment Dates over the amounts actually paid to
the Class C Noteholders on prior Payment Dates, plus interest on any
such shortfall at the Class C Rate to the extent permitted by law;
(vii) to the Principal Distribution Account, the Third Priority
Principal Distribution Amount, if any;
(viii) to the Interest Distribution Account, (a) the aggregate
amount of interest accrued for the related Interest Period on each of
the Class D Notes at the Class D Rate on the principal outstanding as
of the previous Payment Date after giving effect to all payments of
principal to the Class D Noteholders on the preceding Payment Date; and
(b) the excess, if any, of the amount of interest payable to the Class
D Noteholders on prior Payment Dates over the amounts actually paid to
the Class D Noteholders on prior Payment Dates, plus interest on any
such shortfall at the Class D Rate to the extent permitted by law;
(ix) to the Principal Distribution Account, the Regular Principal
Distribution Amount;
(x) to the Reserve Account, from Available Amounts remaining, the
amount, if any, necessary to cause the amount on deposit in that
account to equal the Reserve Account Required Amount;
(xi) to the Indenture Trustee and the Owner Trustee, any accrued
and unpaid fees, reimbursements and expenses, in each case to the
extent such fees, reimbursements and expenses have not been previously
paid by the Servicer and to the Securities Intermediary, any accrued
and unpaid indemnification expenses owed to it; and
(xii) any Available Amounts remaining, if any, to the Owner Trustee
or its agent, for deposit into the Certificate Distribution Account (as
defined in the Trust
30
Agreement) and subsequent distribution to the Certificateholder
pursuant to Section 5.02 of the Trust Agreement.
Section 5.06 Reserve Account.
(a) On or prior to the Closing Date, the Issuer shall cause to be
deposited an amount equal to the Reserve Account Deposit into the Reserve
Account from the net proceeds of the sale of the Notes. The Reserve Account
shall be an asset of the Issuer.
(b) In the event that the Servicer's Certificate states that there
is an Available Amounts Shortfall, then the Indenture Trustee shall, upon
written directions from the Servicer, withdraw the Reserve Account Withdrawal
Amount from the Reserve Account and deposit such Reserve Account Withdrawal
Amount into the Collection Account no later than 12:00 noon, New York City time,
on the Business Day prior to the related Payment Date.
(c) In the event that the amount on deposit in the Reserve Account
(after giving effect to all deposits thereto and withdrawals therefrom on such
Business Day on a Payment Date) is greater than the Reserve Account Required
Amount on any Payment Date, the Indenture Trustee shall distribute, upon written
directions from the Servicer, all such amounts to the Depositor as per the
monthly Servicer's Certificate. Upon any such distribution to the Depositor, the
Noteholders shall have no further rights in, or claims to, such amounts.
(d) In the event that on any Payment Date the amount on deposit in
the Reserve Account shall be less than the Reserve Account Required Amount, the
Available Amounts remaining after the payment of the amounts set forth in
Section 5.05(b)(i) through (ix), up to an amount equal to such shortfall, shall
be deposited by the Indenture Trustee, upon written directions from the
Servicer, to the Reserve Account on such Payment Date.
(e) Subject to Section 9.01, amounts will continue to be applied
pursuant to Section 5.05 following the payment in full of the Outstanding Amount
of Notes until the Pool Balance is reduced to zero. Following the payment in
full of the aggregate Outstanding Amount of the Notes and the Certificates and
of all other amounts owing or to be distributed hereunder or under the Indenture
or the Trust Agreement to the Noteholders and the termination of the Trust, any
amount then allocated to the Reserve Account shall be distributed to the
Depositor.
Section 5.07 Statements to Securityholders. On each Payment Date, the
Servicer shall provide to the Indenture Trustee (with a copy to each Rating
Agency) for the Indenture Trustee to forward to each Noteholder of record as of
the most recent Record Date and to the Owner Trustee for the Owner Trustee to
forward to each Certificateholder of record as of the most recent Record Date a
statement substantially in the form of Exhibit B, respectively, setting forth at
least the following information as to the Securities to the extent applicable:
(i) the amount of collections received with respect to the
Receivables during the related Collection Period and allocable to principal
allocable to each Class of Notes on such Payment Date;
31
(ii) the amount of collections received with respect to the
Receivables during the related Collection Period and allocable to interest
allocable to each Class of Notes on such Payment Date;
(iii) the Outstanding Amount of each Class of Notes, the Note Pool
Factor for each such Class as of the close of business on the last day of the
preceding Collection Period, after giving effect to payments allocated to
principal reported under clause (i) above;
(iv) the amount of the Servicing Fee paid to the Servicer and the
amount of any fees payable to the Owner Trustee, or the Indenture Trustee with
respect to the related Collection Period;
(v) the aggregate amounts of Realized Losses, if any, with respect
to the related Collection Period;
(vi) the balance of the Reserve Account on the related
Determination Date after giving effect to deposits and withdrawals to be made on
the relevant Payment Date, if any;
(vii) the Pool Balance as of the close of business on the last day
of the related Collection Period, after giving effect to payments allocated to
principal reported under clause (i) above;
(viii) the amount of any deposit to the Reserve Account and the
amount and application of any funds withdrawn from the Reserve Account, in each
case with respect to such Payment Date;
(ix) the aggregate principal balance of all Receivables that became
Liquidated Receivables or Purchased Receivables during the related Collection
Period;
(x) the aggregate principal balance and number of Receivables that
are 30 to 60 days, 61 to 90 days or 91 days or more delinquent as of the last
day of the related Collection Period;
(xi) any Available Amounts Shortfall after giving effect to
payments on such Payment Date, and any change in such amounts from the preceding
statement;
(xii) the aggregate Purchased Amounts for Receivables, if any, that
were purchased during or with respect to such Collection Period;
(xiii) the aggregate Principal Balance and number of all
Receivables with respect to which the related Financed Vehicle was repossessed;
(xiv) the aggregate Principal Balance and number of Receivables
with respect to which the Servicer granted an extension;
32
(xv) the Required Yield Supplement Overcollateralization Amount for
the next Collection Period; and
(xvi) any amounts distributed to the Certificateholders.
Each amount set forth on the Payment Date statement under clauses (i),
(ii) or (iv) above shall be expressed as a dollar amount per $1,000 of original
principal balance of a Certificate or Note, as applicable.
The Indenture Trustee may make any such statement which it is required
to provide to the Noteholders, including, without limitation, all information as
may be required to enable each Noteholder to prepare its respective federal and
state income tax returns (and, at its option, any additional files containing
the same information in an alternative format), via its internet web site
(initially located at www.sf.citidirect.com). In connection with providing
access to the Indenture Trustee's website, the Indenture Trustee may require
registration and the acceptance of certain terms and conditions. The Indenture
Trustee shall have the right to change the way such statements are distributed
in order to make such distributions more convenient and/or more accessible to
the above parties and the Indenture Trustee shall provide timely and adequate
notification to the Noteholders regarding any such changes; provided, however,
that the Indenture Trustee will also mail copies of any such statements to any
requesting Noteholder who provides a written request.
Section 5.08 Advances by the Servicer.
By the close of business on the day required by Section 5.02 hereof,
the Servicer may, in its sole discretion, deposit into the Collection Account,
out of its own funds, an Advance; provided, however, that the Servicer shall not
make any Advances with respect to Defaulted Receivables.
ARTICLE VI.
THE DEPOSITOR
Section 6.01 Representations of Depositor. The Depositor makes the
following representations on which the Issuer relies in accepting the
Receivables and delivering the Securities. Such representations speak as of the
execution and delivery of this Agreement and as of the Closing Date and shall
survive the sale, transfer and assignment of the Receivables by the Depositor to
the Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) Organization and Good Standing. The Depositor is duly organized
and validly existing as a corporation in good standing under the laws of the
State of Delaware, with the corporate power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is presently conducted.
(b) Due Qualification. The Depositor is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions where the failure to do
so would materially and adversely affect the Depositor's
33
ability to transfer the Receivables to the Trust pursuant to this Agreement or
the validity or enforceability of the Receivables.
(c) Power and Authority. The Depositor has the corporate power and
authority to execute and deliver this Agreement and the other Basic Documents to
which it is a party and to carry out their respective terms; the Depositor has
full power and authority to sell and assign the property to be sold and assigned
to and deposited with the Issuer, and the Depositor shall have duly authorized
such sale and assignment to the Issuer by all necessary corporate action; and
the execution, delivery and performance of this Agreement and the other Basic
Documents to which the Depositor is a party have been and will be duly
authorized by the Depositor by all necessary corporate action.
(d) Binding Obligation. This Agreement and the other Basic
Documents to which the Depositor is a party, when duly executed and delivered by
the other parties hereto and thereto, shall constitute legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in accordance
with their respective terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization or similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and to general
principles of equity (whether applied in a proceeding at law or in equity).
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the other Basic Documents and the fulfillment of the terms
of this Agreement and the other Basic Documents shall not conflict with, result
in any breach of any of the terms or provisions of or constitute (with or
without notice or lapse of time, or both) a default under, the certificate of
incorporation or bylaws of the Depositor, or any indenture, agreement, mortgage,
deed of trust or other instrument to which the Depositor is a party or by which
it is bound; or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument, other than this Agreement and the other Basic
Documents; or violate any law, order, rule or regulation applicable to the
Depositor of any court or federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Depositor or its properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the Depositor's knowledge, threatened, against the Depositor
before any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Depositor or its
properties: (i) asserting the invalidity of this Agreement or any other Basic
Document; (ii) seeking to prevent the issuance of the Notes or the Certificates
or the consummation of any of the transactions contemplated by this Agreement or
any other Basic Document; (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement or any
other Basic Document; or (iv) seeking to adversely affect the federal income tax
attributes of the Trust, the Notes or the Certificates.
(g) No Consents. The Depositor is not required to obtain the
consent of any other party or any consent, license, approval, registration,
authorization, or declaration of or with any governmental authority, bureau or
agency in connection with the execution, delivery,
34
performance, validity or enforceability of this Agreement or any other Basic
Document to which it is a party that has not already been obtained.
Section 6.02 Corporate Existence. During the term of this Agreement,
the Depositor will keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation 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 Agreement, the Basic Documents
and each other instrument or agreement necessary or appropriate to the proper
administration of this Agreement and the transactions contemplated hereby. In
addition, all transactions and dealings between the Depositor and its Affiliates
will be conducted on an arm's-length basis.
Section 6.03 Liability of Depositor; Indemnities. The Depositor shall
be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Depositor under this Agreement (which shall not
include distributions on account of the Notes or the Certificates).
Section 6.04 Merger or Consolidation of, or Assumption of the
Obligations of, Depositor. The Depositor shall not merge or consolidate with any
other Person or permit any other Person to become the successor to the
Depositor's business.
Section 6.05 Amendment of Depositor's Organizational Documents. The
Depositor shall not amend its organizational documents except in accordance with
the provisions thereof.
ARTICLE VII.
THE SERVICER
Section 7.01 Representations of Servicer. The Servicer makes the
following representations upon which the Issuer is deemed to have relied in
acquiring the Receivables. Such representations speak as of the execution and
delivery of this Agreement and as of the Closing Date and shall survive the sale
of the Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(a) Organization and Good Standing. The Servicer is duly organized
and validly existing as a corporation in good standing under the laws of the
State of its incorporation, with the corporate power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and had at all relevant times, and
has, the corporate power, authority and legal right to acquire, own, and service
the Receivables.
(b) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions where the failure to do
so would materially and adversely affect the Servicer's ability to acquire, own
and service the Receivables.
(c) Power and Authority. The Servicer has the power and authority
to execute and deliver this Agreement and the other Basic Documents to which it
is a party and to carry out
35
their respective terms; and the execution, delivery and performance of this
Agreement and the other Basic Documents to which it is a party have been duly
authorized by the Servicer by all necessary corporate action.
(d) Binding Obligation. This Agreement and the other Basic
Documents to which it is a party constitute legal, valid and binding obligations
of the Servicer, enforceable against the Servicer in accordance with their
respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and to general principles of equity
whether applied in a proceeding in equity or at law.
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the other Basic Documents to which it is a party and the
fulfillment of their respective terms shall not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the articles of incorporation
or bylaws of the Servicer, or any indenture, agreement, mortgage, deed of trust
or other instrument to which the Servicer is a party or by which it is bound; or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument, other than this Agreement and the other Basic Documents, or
violate any law, order, rule or regulation applicable to the Servicer of any
court or federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Servicer or any of its
properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the Servicer's knowledge, threatened, against the Servicer before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Servicer or its
properties: (i) asserting the invalidity of this Agreement or any of the other
Basic Documents; (ii) seeking to prevent the issuance of the Securities or the
consummation of any of the transactions contemplated by this Agreement or any of
the other Basic Documents; (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of, this Agreement or any
of the other Basic Documents; or (iv) seeking to adversely affect the federal
income tax or other federal, state or local tax attributes of the Securities.
(g) No Consents. The Servicer is not required to obtain the consent
of any other party or any consent, license, approval or authorization, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement.
Section 7.02 Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer and the representations made by the Servicer under
this Agreement:
(a) The Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, the Securityholders and the
Depositor and any of the officers, directors, employees and agents of the
Issuer, the Owner Trustee and the Indenture Trustee from and against any and all
costs, expenses, losses, damages, claims and liabilities
36
arising out of or resulting from the use, ownership or operation by the Servicer
or any Affiliate thereof of a Financed Vehicle, excluding any losses incurred in
connection with the sale of any repossessed Financed Vehicles in a commercially
reasonable manner and in compliance with the terms of this Agreement.
(b) The Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee and the Depositor and their
respective officers, directors, agents and employees, and the Securityholders,
from and against any taxes that may at any time be asserted against any of such
parties with respect to the transactions contemplated in this Agreement,
including any sales, gross receipts, tangible or intangible personal property,
privilege or license taxes (but not including any federal or other income taxes,
including franchise taxes asserted with respect to, and as of the date of, the
transfer of the Receivables to the Trust or the issuance and original sale of
the Securities), and any costs and expenses in defending against the same.
(c) The Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, the Depositor, the
Securityholders and any of the officers, directors, employees or agents of the
Issuer, the Owner Trustee and the Indenture Trustee from and against any and all
costs, expenses, losses, claims, damages and liabilities to the extent that such
cost, expense, loss, claim, damage or liability arose out of, or was imposed
upon any such Person through, the negligence, misfeasance or bad faith of the
Servicer in the performance of its duties under this Agreement or by reason of
reckless disregard of its obligations and duties under this Agreement.
For purposes of this Section, in the event of the termination of the
rights and obligations of HMFC (or any successor thereto pursuant to Section
7.03) as Servicer pursuant to Section 8.02, or the resignation by such Servicer
pursuant to this Agreement, such Servicer shall be deemed to be the Servicer
pending appointment of a successor Servicer (other than the Indenture Trustee)
pursuant to Section 8.03.
Indemnification under this Section shall survive the resignation or
removal of the Servicer or the termination of this Agreement, and shall include
reasonable fees and expenses of counsel and reasonable expenses of litigation.
If the Servicer shall have made any indemnity payments pursuant to this Section
and the Person to or on behalf of whom such payments are made thereafter
collects any of such amounts from others, such Person shall promptly repay such
amounts to the Servicer, without interest. The Servicer shall pay all amounts
due, pursuant to this Section, with respect to the Indenture Trustee and Owner
Trustee as set forth in Section 5.05(b)(xi).
Section 7.03 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. The Servicer shall not merge or consolidate with any
other Person, convey, transfer or lease substantially all its assets as an
entirety to another Person, or permit any other Person to become the successor
to the Servicer's business unless, after such merger, consolidation, conveyance,
transfer, lease or succession, the successor or surviving entity shall be
capable of fulfilling the duties of the Servicer contained in this Agreement.
Any Person (i) into which the Servicer may be merged or consolidated, (ii)
resulting from any merger or consolidation to which the Servicer shall be a
party, (iii) that acquires by conveyance, transfer or lease
37
substantially all of the assets of the Servicer or (iv) succeeding to the
business of the Servicer, which Person shall execute an agreement of assumption
to perform every obligation of the Servicer under this Agreement, shall be the
successor to the Servicer under this Agreement without the execution or filing
of any paper or any further act on the part of any of the parties to this
Agreement. The Servicer shall provide notice of any merger, consolidation or
succession pursuant to this Section 7.03(a) to the Owner Trustee, the Indenture
Trustee and each Rating Agency. Notwithstanding the foregoing, the Servicer
shall not merge or consolidate with any other Person or permit any other Person
to become a successor to the Servicer's business unless (i) immediately after
giving effect to such transaction, no representation or warranty made pursuant
to Section 7.01 shall have been breached (for purposes hereof, such
representations and warranties shall speak as of the date of the consummation of
such transaction) and no event that, after notice or lapse of time or both,
would become a Servicer Termination Event shall have occurred, (ii) the Servicer
shall have delivered to the Owner Trustee and the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
7.03(a) and that all conditions precedent provided for in this Agreement
relating to such transaction have been complied with and (iii) the Servicer
shall have delivered to the Owner Trustee and the Indenture Trustee an Opinion
of Counsel stating that either (A) all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary to preserve and protect the interest of the Trust and the Indenture
Trustee, respectively, in the assets of the Trust and reciting the details of
such filings or (B) no such action shall be necessary to preserve and protect
such interest.
Section 7.04 Limitation on Liability of Servicer and Others. None of
the Servicer or any of its directors, officers, employees or agents shall be
under any liability to the Issuer, the Depositor, the Indenture Trustee, the
Owner Trustee, the Noteholders or the Certificateholders, except as provided in
this Agreement, for any action taken or for refraining from the taking of any
action pursuant to this Agreement; provided, however, that this provision shall
not protect the Servicer or any such Person against any liability that would
otherwise be imposed by reason of a breach of this Agreement or willful
misfeasance, bad faith or negligence in the performance of duties. The Servicer
and any director, officer, employee or agent of the Servicer may conclusively
rely in good faith on the written advice of counsel or on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising under this Agreement.
Section 7.05 Appointment of Subservicer. The Servicer may at any time
appoint a subservicer to perform all or any portion of its obligations as
Servicer hereunder; provided, however, that 10 days' prior notice of such
appointment shall have been given to each Rating Agency, and each Rating Agency
shall have notified the Servicer, the Owner Trustee and the Indenture Trustee in
writing that such appointment satisfies the Rating Agency Condition; and
provided further, that the Servicer shall remain obligated and be liable to the
Owner Trustee, the Indenture Trustee and the Securityholders for the servicing
and administering of the Receivables in accordance with the provisions hereof
without diminution of such obligation and liability by virtue of the appointment
of such subservicer and to the same extent and under the same terms and
conditions as if the Servicer alone were servicing and administering the
Receivables. The fees and expenses of any subservicer shall be as agreed between
the Servicer and such
38
subservicer from time to time, and none of the Owner Trustee, the Indenture
Trustee, the Issuer or the Securityholders shall have any responsibility
therefor.
Section 7.06 Servicer Not to Resign.
(a) Subject to the provisions of Section 7.03(a), the Servicer
shall not resign from the obligations and duties imposed on it by this Agreement
as Servicer except upon a determination that the performance of its duties under
this Agreement shall no longer be permissible under applicable law.
(b) Notice of any determination that the performance by the
Servicer of its duties hereunder is no longer permitted under applicable law
shall be communicated to the Owner Trustee and the Indenture Trustee at the
earliest practicable time (and, if such communication is not in writing, shall
be confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered by the Servicer to the Owner Trustee and the Indenture Trustee
concurrently with or promptly after such notice. No resignation of the Servicer
shall become effective until a successor shall have assumed the responsibilities
and obligations of the Servicer in accordance with Section 8.03. If no successor
Servicer has been appointed within 30 days of resignation or removal, the
Servicer, as the case may be, may petition any court of competent jurisdiction
for such appointment.
ARTICLE VIII.
DEFAULT
Section 8.01 Servicer Termination Events. For purposes of this
Agreement, the occurrence and continuance of any of the following shall
constitute a "Servicer Termination Event":
(a) Any failure by the Servicer to deposit into any Account any
proceeds or payment required to be so delivered or to direct the Indenture
Trustee to make the required payment from any Account under the terms of this
Agreement that continues unremedied for a period of five Business days after
written notice is received by the Servicer or after discovery of such failure by
a Responsible Officer of the Servicer;
(b) Failure on the part of the Servicer duly to observe or perform,
in any material respect, any covenants or agreements of the Servicer set forth
in this Agreement, which failure (i) materially and adversely affects the rights
of the Securityholders and (ii) continues unremedied for a period of 60 days
after discovery of such failure by a Responsible Officer of the Servicer or
after the date on which written notice of such failure requiring the same to be
remedied shall have been given to the Servicer by any of the Owner Trustee, the
Indenture Trustee or Noteholders evidencing not less than 50% of the Outstanding
Amounts of the Controlling Class of Notes; or
(c) The occurrence of an Insolvency Event with respect to the
Servicer.
39
Section 8.02 Consequences of a Servicer Termination Event. If a
Servicer Termination Event shall occur, the Indenture Trustee or Noteholders
evidencing more than 50% of the voting interests of the Controlling Class may,
by notice given in writing to the Servicer (and to the Indenture Trustee, the
Owner Trustee and the Depositor if given by such Noteholders), terminate all of
the rights and obligations of the Servicer under this Agreement. On or after the
receipt by the Servicer of such written notice, all authority, power,
obligations and responsibilities of the Servicer under this Agreement
automatically shall pass to, be vested in and become obligations and
responsibilities of the successor Servicer; provided, however, that the
successor Servicer shall have no liability with respect to any obligation that
was required to be performed by the terminated Servicer prior to the date that
the successor Servicer becomes the Servicer or any claim of a third party based
on any alleged action or inaction of the terminated Servicer. The successor
Servicer is authorized and empowered by this Agreement to execute and deliver,
on behalf of the terminated Servicer, as attorney-in-fact or otherwise, any and
all documents and other instruments and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Receivables
and related documents to show the Indenture Trustee (or the Owner Trustee if the
Notes have been paid in full) as lienholder or secured party on the related
certificates of title of the Financed Vehicles or otherwise. The terminated
Servicer agrees to cooperate with the successor Servicer in effecting the
termination of the responsibilities and rights of the terminated Servicer under
this Agreement, including the transfer to the successor Servicer for
administration by it of all money and property held by the Servicer with respect
to the Receivables and other records relating to the Receivables, including any
portion of the Receivables File held by the Servicer and a computer tape in
readable form as of the most recent Business Day containing all information
necessary to enable the successor Servicer to service the Receivables. The
terminated Servicer shall also provide the successor Servicer access to Servicer
personnel and computer records in order to facilitate the orderly and efficient
transfer of servicing duties.
Section 8.03 Appointment of Successor Servicer.
(a) On and after the time the Servicer receives a notice of
termination pursuant to Section 8.02 or upon the resignation of the Servicer
pursuant to Section 7.06, the Indenture Trustee or the Noteholders evidencing
more than 50% of the voting interests of the Controlling Class shall appoint a
successor Servicer which shall be the successor in all respects to the Servicer
in its capacity as Servicer under this Agreement and shall be subject to all the
rights, responsibilities, restrictions, duties, liabilities and termination
provisions relating to the Servicer under this Agreement, except as otherwise
stated herein. The Depositor, the Owner Trustee, the Indenture Trustee and such
successor Servicer shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession. If a successor Servicer is
acting as Servicer hereunder, it shall be subject to termination under Section
8.02 upon the occurrence of any Servicer Termination Event after its appointment
as successor Servicer. The original Servicer shall pay any and all fees and
expenses incurred as a result of a transfer of servicing.
(b) The Noteholders evidencing more than 50% of the voting
interests of the Controlling Class shall have no liability to the Owner Trustee,
the Indenture Trustee, the Servicer, the Depositor, any Noteholders, any
Certificateholders or any other Person if it
40
exercises its right to appoint a successor to the Servicer. Pending appointment
pursuant to the preceding paragraph, the outgoing Servicer shall continue to act
as Servicer until a successor has been appointed and accepted such appointment.
(c) Upon appointment, the successor Servicer shall be the successor
in all respects to the predecessor Servicer and shall be subject to all the
responsibilities, duties and liabilities arising thereafter relating thereto
placed on the predecessor Servicer, and shall be entitled to the Servicing Fee
and all the rights granted to the predecessor Servicer by the terms and
provisions of this Agreement.
Section 8.04 Notification to Securityholders. Upon any termination of,
or appointment of a successor to, the Servicer pursuant to this Article VIII,
the Administrator shall give prompt written notice thereof to the
Certificateholders, and the Indenture Trustee shall give prompt written notice
thereof to the Noteholders and each Rating Agency.
Section 8.05 Waiver of Past Defaults. The Noteholders evidencing more
than 50% of the voting interests of the Controlling Class may, on behalf of all
Securityholders, waive in writing any default by the Servicer in the performance
of its obligations hereunder and its consequences, except a default in making
any required deposits to or payments from any of the Trust Accounts in
accordance with this Agreement. Upon any such waiver of a past default, such
default shall cease to exist, and any Servicer Termination Event arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereto.
ARTICLE IX.
TERMINATION
Section 9.01 Optional Purchase of All Receivables.
(a) On each Determination Date as of which the Pool Balance is
equal to or less than 10% of the Initial Pool Balance, the Servicer shall have
the option to purchase the Receivables. To exercise such option, the Servicer
shall deposit to the Collection Account pursuant to Section 5.04 an amount equal
to the aggregate Purchased Amount for the Receivables and shall succeed to all
interests in and to the Receivables. The exercise of such option shall effect a
retirement, in whole but not in part, of all outstanding Notes.
(b) As described in Article IX of the Trust Agreement, notice of
any termination of the Trust shall be given by the Servicer to the Owner Trustee
and the Indenture Trustee as soon as practicable after the Servicer has received
notice thereof.
(c) Following the satisfaction and discharge of the Indenture and
the payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder and
the Trust will succeed to the rights of, and assume the obligations to make
payments to Certificateholders of, the Indenture Trustee pursuant to this
Agreement.
41
ARTICLE X.
MISCELLANEOUS
Section 10.01 Amendment.
(a) This Agreement may be amended by the Depositor, the Servicer,
the Indenture Trustee and the Issuer, but without the consent of any of the
Noteholders or the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions in
this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Owner Trustee and the
Indenture Trustee, adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time by the
Depositor, the Servicer and the Issuer, with the prior written consent of the
Indenture Trustee and Noteholders holding not less than a majority of the
Outstanding Amount of the Notes, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Securityholders; provided, however,
that no such amendment shall (i) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Securityholders or (ii) reduce the aforesaid percentage of the Outstanding
Amount of the Notes, the Securityholders of which are required to consent to any
such amendment, without the consent of the Noteholders holding all Outstanding
Notes and Certificateholders holding all outstanding Certificates.
Promptly after the execution of any amendment or consent, the
Administrator shall furnish written notification of the substance of such
amendment or consent to each Securityholder, the Indenture Trustee and each
Rating Agency.
It shall not be necessary for the consent of Securityholders pursuant
to this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof.
Prior to the execution of any amendment to this Agreement, the Owner
Trustee, on behalf of the Issuer, and the Indenture Trustee shall be entitled to
receive and rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and the Opinion of
Counsel referred to in Section 10.02(i)(A). The Owner Trustee, on behalf of the
Issuer, and the Indenture Trustee may, but shall not be obligated to, enter into
any such amendment that affects the Owner Trustee's or the Indenture Trustee's,
as applicable, own rights, duties or immunities under this Agreement or
otherwise.
Section 10.02 Protection of Title to Trust.
(a) The Servicer shall file such financing statements and cause to
be filed such continuation statements, all in such a manner and in such places
as may be required by law fully
42
to preserve, maintain and protect the interest of the Issuer and the Indenture
Trustee in the Receivables and the proceeds thereof. The Servicer shall deliver
or cause to be delivered to the Owner Trustee and the Indenture Trustee
file-stamped copies of, or filing receipts for, any document filed as provided
above as soon as available following such filing.
(b) Neither the Depositor nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed in accordance with
paragraph (a) above insufficient within the meaning of Section 9-503 of the UCC,
unless it shall have given the Owner Trustee and the Indenture Trustee at least
five days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) The Servicer shall at all times maintain each office from which
it shall service Receivables, and its principal executive office, within the
United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of each such Receivable, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on or with respect to each such
Receivable and the amounts from time to time deposited in the Collection Account
in respect of each such Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables, the
Servicer's master computer records (including any backup archives) that refer to
a Receivable shall indicate clearly the interest of the Issuer in such
Receivable and that such Receivable is owned by the Issuer and has been pledged
to the Indenture Trustee. Indication of the Issuer's interest in a Receivable
shall be deleted from or modified on the Servicer's computer systems when, and
only when, the related Receivable shall have been paid in full or repurchased.
(f) If at any time the Depositor or the Servicer shall propose to
sell, grant a security interest in or otherwise transfer any interest in motor
vehicle receivables to any prospective purchaser, lender or other transferee,
the Servicer shall give to such prospective purchaser, lender or other
transferee computer tapes, records or printouts (including any restored from
backup archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been sold and is
owned by the Issuer and has been pledged to the Indenture Trustee.
(g) The Servicer shall permit the Indenture Trustee and its agents
upon reasonable notice and at any time during normal business hours to inspect,
audit and make copies of and abstracts from the Servicer's records regarding any
Receivable.
(h) Upon request, the Servicer shall furnish to the Owner Trustee
or the Indenture Trustee, within fifteen Business Days, a list of all
Receivables (by contract number and name of Obligor) then held as part of the
Trust, together with a reconciliation of such list to the Schedule of
Receivables and to each of the Servicer's Certificates furnished prior to such
request indicating removal of Receivables from the Trust.
43
(i) Upon request, the Servicer shall deliver to the Owner Trustee
and the Indenture Trustee:
(A) promptly after the execution and delivery of this Agreement
and each amendment hereto, an Opinion of Counsel stating that, in
the opinion of such counsel, either (i) all financing statements
and continuation statements have been filed that are necessary to
fully preserve and protect the interest of the Trust and the
Indenture Trustee in the Receivables, and reciting the details of
such filings or referring to prior Opinions of Counsel in which
such details are given, or (ii) no such action shall be necessary
to preserve and protect such interest; and
(B) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three
months after the Cutoff Date, an Opinion of Counsel, dated as of a
date during such 90-day period, stating that, in the opinion of
such counsel, either (i) all financing statements and continuation
statements have been filed that are necessary to fully preserve and
protect the interest of the Trust and the Indenture Trustee in the
Receivables, and reciting the details of such filings or referring
to prior Opinions of Counsel in which such details are given, or
(ii) no such action shall be necessary to preserve and protect such
interest.
Each Opinion of Counsel referred to in clause (i) or (ii) above shall specify
any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
Section 10.03 Notices. All demands, notices, communications and
instructions upon or to the Depositor, the Servicer, the Issuer, the Owner
Trustee, the Indenture Trustee or any Rating Agency under this Agreement shall
be in writing, personally delivered, faxed and followed by first class mail, or
mailed by certified mail, return receipt requested, and shall be deemed to have
been duly given upon receipt (a) in the case of the Depositor, to 10550 Talbert
Avenue, Fountain Valley, California 92708, Attention: Vice President and
Secretary, with a copy to General Counsel; (b) in the case of the Servicer and
HMFC, to 10550 Talbert Avenue, Fountain Valley, California 92708, Attention:
Vice President, Finance; (c) in the case of the Issuer or the Owner Trustee, at
the Corporate Trust Office (as defined in the Trust Agreement); (d) in the case
of Moody's, to 99 Church Street, New York, New York 10007, Attention: ABS
Monitoring Department; (e) in the case of the Indenture Trustee, at the
Corporate Trust Office (as defined in the Indenture); (f) in the case of
Standard & Poor's, to 55 Water Street (40th Floor), New York, New York 10041,
Attention: Asset Backed Surveillance Department; and (g) in the case of Fitch,
to 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 10.04 Assignment by the Depositor or the Servicer.
Notwithstanding anything to the contrary contained herein, except as provided in
Sections 6.04 and 7.03 herein and as provided in the provisions of this
Agreement concerning the resignation of the Servicer, this Agreement may not be
assigned by the Depositor or the Servicer.
44
Section 10.05 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Depositor, the Servicer, the Issuer,
the Owner Trustee, the Certificateholders, the Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 10.06 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.07 Counterparts. This Agreement may be executed by the
parties hereto in any number of counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute but
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile shall be effective as delivery of a manually
executed counterpart of this Agreement.
Section 10.08 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.09 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 10.10 Assignment by Issuer. The Depositor hereby acknowledges
and consents to any mortgage, pledge, assignment and grant of a security
interest by the Issuer to the Indenture Trustee pursuant to the Indenture for
the benefit of the Noteholders of all right, title and interest of the Issuer
in, to and under the Receivables or the assignment of any or all of the Issuer's
rights and obligations hereunder to the Indenture Trustee.
Section 10.11 Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, the parties hereto shall not, prior to the date
that is one year and one day after the termination of this Agreement with
respect to the Issuer or the Depositor, acquiesce, petition or otherwise invoke
or cause the Issuer or the Depositor to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Issuer or the Depositor under any federal or state bankruptcy, insolvency or
similar law, or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or the Depositor or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Issuer or the Depositor.
Section 10.12 Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by Wilmington Trust Company not in its individual
capacity but
45
solely in its capacity as Owner Trustee of the Issuer and in no event shall
Wilmington Trust Company in its individual capacity or, except as expressly
provided in the Trust Agreement, as Owner Trustee of the Issuer have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer in accordance with the priorities set forth
herein. For all purposes of this Agreement, in the performance of its duties or
obligations hereunder or 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 Articles VI, VII and VIII of the Trust
Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by Citibank, N.A., not in its individual capacity
but solely as Indenture Trustee, and in no event shall Citibank, N.A. have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer in accordance with the priorities set forth
herein.
46
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers 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/ W. Chris Sponenberg
--------------------------------------------
Name: W. Chris Sponenberg
Title: Vice President
HYUNDAI ABS FUNDING CORPORATION, as
Depositor
By: /s/ David A. Hoeller
--------------------------------------------
Name: David A. Hoeller
Title: Vice President, Secretary
HYUNDAI MOTOR FINANCE COMPANY, as
Servicer and Seller
By: /s/ Jaime Song
--------------------------------------------
Name: Jae Min Song
Title: Treasurer
CITIBANK, N.A., not in its individual capacity
but solely as Indenture Trustee
By: /s/ Karen Schluler
--------------------------------------------
Name: Karen Schluler
Title: Vice President
EXHIBIT A
Representations and Warranties of Hyundai Motor Finance Company
Under Section 3.02 of the Receivables Purchase Agreement
Terms used in this Exhibit A shall have the meanings assigned
to them in the Receivables Purchase Agreement, dated as of September 1, 2004
(the "Receivables Purchase Agreement"), between Hyundai Motor Finance Company as
Seller (the "Seller") and Hyundai ABS Funding Corporation as depositor (the
"Depositor"). Terms not defined in the Receivables Purchase Agreement shall have
the meanings assigned to them in the Sale and Servicing Agreement.
(a) The Seller hereby represents and warrants as follows to
the Depositor and the Indenture Trustee as of the date hereof and as of the
Transfer Date:
(i) Organization and Good Standing. The Seller has
been duly organized and is validly existing as a corporation in good standing
under the laws of the State of California, with the corporate power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted.
(ii) Due Qualification. The Seller is duly qualified
to do business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(iii) Power and Authority. The Seller has the power
and authority to execute and deliver this Agreement and the other Basic
Documents to which it is a party and to carry out their respective terms; the
Seller had at all relevant times, and has, full power, authority and legal right
to sell, transfer and assign the property sold, transferred and assigned to the
Depositor hereby and has duly authorized such sale, transfer and assignment to
the Depositor by all necessary corporate action; and the execution, delivery and
performance of this Agreement and the other Basic Documents to which the Seller
is a party have been duly authorized by the Seller by all necessary corporate
action.
(iv) No Violation. The consummation of the
transactions contemplated by this Agreement and the other Basic Documents to
which the Seller is a party and the fulfillment of their respective terms do not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default under,
the articles of incorporation or bylaws of the Seller, or any indenture,
agreement or other instrument to which the Seller is a party or by which it is
bound, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than this Agreement), or violate any law or, to the best of
the Seller's knowledge, any order, rule or regulation applicable to the Seller
of any court or of
A-1
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties.
(v) No Proceedings. There are no proceedings or
investigations pending or, to the Seller's knowledge, threatened against the
Seller before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties (i) asserting the invalidity of this Agreement or any other Basic
Document to which the Seller is a party, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any
other Basic Document to which the Seller is a party or (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement or any other Basic Document to which the
Seller is a party.
(vi) Valid Sale, Binding Obligation. This Agreement
and the other Basic Documents to which the Seller is a party, when duly executed
and delivered by the other parties hereto and thereto, shall constitute legal,
valid and binding obligations of the Seller, enforceable against the Seller in
accordance with their respective terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization and similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and to
general principles of equity (whether applied in a proceeding at law or in
equity).
(vii) Chief Executive Office. The chief executive
office of the Seller is located at 10550 Talbert Avenue, Fountain Valley,
California 92708.
(viii) No Consents. The Seller is not required to
obtain the consent of any other party or any consent, license, approval,
registration, authorization, or declaration of or with any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity, or enforceability of this Agreement or any other Basic
Document to which it is a party that has not already been obtained.
(ix) Seller Information. No certificate of an
officer, statement or document furnished in writing or report delivered pursuant
to the terms hereof by the Seller contains any untrue statement of a material
fact or omits to state any material fact necessary to make the certificate,
statement, document or report not misleading.
(x) Ordinary Course. The transactions contemplated by
this Agreement and the other Basic Documents to which the Seller is a party are
in the ordinary course of the Seller's business.
(xi) Solvency. The Seller is not insolvent, nor will
the Seller be made insolvent by the transfer of the Receivables, nor does the
Seller contemplate any pending insolvency.
(xii) Legal Compliance. The Seller is not in
violation of, and the execution and delivery of this Agreement and the other
Basic Documents to which the Seller is a party by it and its performance and
compliance with the terms of this Agreement and the other Basic Documents to
which the Seller is a party will not constitute a violation with respect to, any
order or decree of any court or any order or regulation of any federal, state,
municipal or
A-2
governmental agency having jurisdiction, which violation would materially and
adversely affect the Seller's condition (financial or otherwise) or operations
or any of the Seller's properties or materially and adversely affect the
performance of any of its duties under the Basic Documents.
(xiii) Creditors. The Seller represents and warrants
that it did not sell the Receivables to the Depositor with any intent to hinder,
delay or defraud any of its creditors.
(xiv) No Notice. The Seller represents and warrants
that it acquired title to the Receivables in good faith, without notice of any
adverse claim.
(xv) Bulk Transfer. The Seller represents and
warrants that the transfer, assignment and conveyance of the Receivables by the
Seller pursuant to this Agreement are not subject to the bulk transfer laws or
any similar statutory provisions in effect in any applicable jurisdiction.
(b) The Seller makes the following representations and
warranties with respect to the Receivables, on which the Depositor relies in
accepting the Receivables and in transferring the Receivables to the Issuer
under the Sale and Servicing Agreement, and on which the Issuer relies in
pledging the same to the Indenture Trustee. Such representations and warranties
speak as of the execution and delivery of this Agreement as of the Closing Date,
but shall survive the sale, transfer and assignment of the Receivables to the
Depositor, the subsequent sale, transfer and assignment of the Receivables by
the Depositor to the Issuer pursuant to the Sale and Servicing Agreement and the
pledge of the Receivables by the Issuer to the Indenture Trustee pursuant to the
Indenture.
(i) Characteristics of Receivables. Each Receivable
(A) was originated in the United States of America by a Dealer located in the
United States of America for the retail sale of a Financed Vehicle in the
ordinary course of such Dealer's business and satisfied the Seller's Credit and
Collection Policy as of the date of origination of the related Receivable, is
payable in United States dollars, has been fully and properly executed by the
parties thereto, has been purchased by the Seller from such Dealer under an
existing Dealer Agreement and has been validly assigned by such Dealer to the
Seller, (B) has created or shall create a valid, subsisting and enforceable
first priority security interest in favor of the Seller in the Financed Vehicle,
which security interest is assignable by the Seller to the Depositor, by the
Depositor to the Issuer, and by the Issuer to the Indenture Trustee, (C)
contains customary and enforceable provisions such that the rights and remedies
of the holder thereof are adequate for realization against the collateral of the
benefits of the security, (D) provides for fixed level monthly payments
(provided that the payment in the last month of the term of the Receivable may
be insignificantly different from the level payments) that fully amortize the
Amount Financed by maturity and yield interest at the APR, (E) amortizes using
the simple interest method and (F) has an Obligor which is not an affiliate of
HMFC, is not a government or governmental subdivision or agency and is not shown
on the Servicer's records as a debtor in a pending bankruptcy proceeding.
(ii) Compliance with Law. Each Receivable and the
sale of the related Financed Vehicle complied at the time it was originated or
made, and at the time of execution of this Agreement complies, in all material
respects with all requirements of applicable federal,
A-3
state and local laws, rulings and regulations thereunder, including usury laws,
the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act,
the Federal Reserve Board's Regulations "B" and "Z", the Servicemembers Civil
Relief Act, the Gramm-Leach-Bliley Act, state adaptations of the National
Consumer Act and of the Uniform Consumer Credit Code, and other consumer credit
laws and equal credit opportunity and disclosure laws; and each Dealer has
represented to the Seller that such Dealer had all necessary licenses and
permits to originate such Receivables.
(iii) Binding Obligation. Each Receivable represents
the genuine, legal, valid and binding payment obligation of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except (A) as
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies, regardless of
whether such enforceability is considered in a proceeding in equity or at law
and (B) as such Receivable may be modified by the application after the Transfer
Date of the Servicemembers Civil Relief Act.
(iv) No Government Obligor. No Receivable is due from
the United States of America or any State or any agency, department, subdivision
or instrumentality thereof.
(v) Obligor Bankruptcy. According to the records of
the Seller, as of the Cutoff Date, no Obligor is the subject of a bankruptcy
proceeding.
(vi) Schedule of Receivables. The information set
forth in Schedule A to this Agreement is true and correct in all material
respects as of the close of business on the Cutoff Date.
(vii) Marking Records. By the Transfer Date, the
Seller will have caused its computer and accounting records relating to each
Receivable to be clearly and unambiguously marked to show that the Receivables
have been sold to the Depositor by the Seller and transferred and assigned by
the Depositor to the Issuer in accordance with the terms of the Sale and
Servicing Agreement and pledged by the Issuer to the Indenture Trustee in
accordance with the terms of the Indenture.
(viii) Computer Tape. The computer tape regarding the
Receivables made available by the Seller to the Depositor is complete and
accurate in all respects as of the Transfer Date.
(ix) No Adverse Selection. The Receivables sold to
the Depositor by the Seller were randomly selected from those motor vehicle
installment contracts in the Seller's portfolio based upon the satisfaction of
the criteria set forth in the Receivables Purchase Agreement and no selection
procedures believed by the Seller to be adverse to the Noteholders or the
Certificateholder were utilized in selecting the Receivables.
(x) Chattel Paper. Each Receivable constitutes
chattel paper within the meaning of the UCC as in effect in the state of
origination.
A-4
(xi) One Original. There is only one executed
original of each Receivable.
(xii) Receivables in Force. No Receivable has been
satisfied, subordinated or rescinded, nor has any Financed Vehicle been released
from the Lien of the related Receivable in whole or in part. None of the terms
of any Receivable has been waived, altered or modified in any respect since its
origination, except by instruments or documents identified in the related
Receivable File.
(xiii) Lawful Assignment. No Receivable has been
originated in, or is subject to the laws of, any jurisdiction the laws of which
would make unlawful, void or voidable the sale, transfer and assignment of such
Receivable under this Agreement, the Sale and Servicing Agreement or the pledge
of such Receivable under the Indenture.
(xiv) Title. It is the intention of the Seller that
the transfers and assignments herein contemplated constitute sales of the
Receivables from the Seller to the Depositor and that the beneficial interest in
and title to the Receivables not be part of the debtor's estate in the event of
the filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. No Receivable, other than the Receivables identified in the
Reconveyance Documents, has been sold, transferred, assigned or pledged by the
Seller to any Person other than to the Depositor or pursuant to this Agreement
(or by the Depositor to any other Person other than to the Issuer pursuant to
the Sale and Servicing Agreement). Except with respect to the Liens under the
Conduit Documents (which such Liens shall be released in accordance with
provisions of the Reconveyance Documents), immediately prior to the transfers
and assignments herein contemplated, the Seller has good and marketable title to
each Receivable free and clear of all Liens, and, immediately upon the transfer
thereof, the Depositor shall have good and marketable title to each Receivable,
free and clear of all Liens and, immediately upon the transfer thereof from the
Depositor to the Issuer pursuant to the Sale and Servicing Agreement, the Issuer
shall have good and marketable title to each Receivable, free and clear of all
Liens and, immediately upon the pledge thereof from the Issuer to the Indenture
Trustee pursuant to the Indenture, the Indenture Trustee shall have a first
priority perfected security interest in each Receivable.
(xv) Security Interest in Financed Vehicle.
Immediately prior to its sale, assignment and transfer to the Depositor pursuant
to this Agreement, each Receivable shall be secured by a validly perfected first
priority security interest in the related Financed Vehicle in favor of the
Seller as secured party, or all necessary and appropriate actions have been
commenced that will result in the valid perfection of a first priority security
interest in such Financed Vehicle in favor of the Seller as secured party within
120 days of the Closing Date, and the Seller further represents that it will
complete all such actions. The Lien Certificate for each Financed Vehicle shows,
or if a new or replacement Lien Certificate is being applied for with respect to
such Financed Vehicle such Lien Certificate shall be received within 120 days of
the Closing Date and shall show, the Seller named as the original secured party
under each Receivable as the holder of a first priority security interest in
such Financed Vehicle. With respect to each Receivable for which the Lien
Certificate has not yet been returned from the Registrar of Titles, the Seller
has received written evidence that such Lien Certificate showing the Seller as
first lienholder has been applied for. Each Dealer's ownership interest in any
A-5
Receivable originated by such Dealer has been validly assigned by the Dealer to
the Seller. The Seller's ownership interest in the Receivables and security
interest in the Financed Vehicles has been validly assigned to the Depositor
pursuant to this Agreement. The Seller has the legal right to repossess or
recover by legal process in its name the Financed Vehicle.
(xvi) All Filings Made. All filings (including UCC
filings, except for UCC releases required to be filed in accordance with the
Reconveyance Documents) required to be made in any jurisdiction to give the
Issuer a first perfected ownership interest in the Receivables and the Indenture
Trustee a first priority perfected security interest in the Receivables have
been made.
(xvii) No Defenses. No Receivable is subject to any
right of rescission, setoff, counterclaim, dispute or defense, including the
defense of usury, whether arising out of transactions concerning the Receivable
or otherwise, and the operation of any terms of the Receivable or the exercise
by the Seller or the Obligor of any right under the Receivable will not render
the Receivable unenforceable in whole or in part, and no such right of
rescission, setoff, counterclaim, dispute or defense, including the defense of
usury, has been asserted with respect thereto.
(xviii) No Default. There has been no default,
breach, violation or event permitting acceleration under the terms of any
Receivable (other than payment delinquencies of not more than 30 days), and no
condition exists or event has occurred and is continuing that with notice, the
lapse of time or both would constitute a default, breach, violation or event
permitting acceleration under the terms of any Receivable, and there has been no
waiver of any of the foregoing.
(xix) Insurance. The Seller, in accordance with its
customary procedures, has determined that the Obligor has obtained physical
damage insurance covering each Financed Vehicle and, under the terms of the
related Receivable, the Obligor is required to maintain such insurance and to
name the Seller as a loss payee.
(xx) Final Scheduled Maturity Date. No Receivable has
a final scheduled payment date after August 15, 2010.
(xxi) Certain Characteristics of the Receivables. As
of the applicable Cutoff Date, (A) each Receivable had an original maturity of
not less than 12 or more than 72 months and (B) no Receivable was more than 30
days past due as of the Cutoff Date.
(xxii) No Foreign Obligor. All of the Receivables are
due from Obligors who are citizens, or legal resident aliens, of the United
States of America.
(xxiii) No Extensions. The number or timing of
scheduled payments has not been changed on any Receivable on or before the
Closing Date, as applicable, except as reflected on the computer tape delivered
in connection with the sale of the Receivables.
(xxiv) Scheduled Payments. Each Obligor has been
instructed to make all scheduled payments to the Post Office Boxes. To the best
knowledge of the Seller, each Obligor has paid the entire down payment called
for by the contract.
A-6
(xxv) [Reserved]
(xxvi) No Fleet Sales. No Receivable has been
included in a "fleet" sale (i.e., a sale to any single Obligor of more than five
Financed Vehicles).
(xxvii) Receivable Files. The Servicer has in its
possession all original copies of documents or instruments that constitute or
evidence the Receivables. The Receivable Files that constitute or evidence the
Receivables do not have any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed by the Seller to any Person other than
the Depositor, except for such Liens as have been released on or before the
Closing Date. All financing statements filed or to be filed against the Seller
in favor of the Depositor in connection herewith 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 Receivables Purchase Agreement, will violate the rights of the Depositor."
(xxviii) No Fraud or Misrepresentation. Each
Receivable was originated by a Dealer and was sold by the Dealer to the Seller,
to the best of the Seller's knowledge, without fraud or misrepresentation on the
part of such Dealer in either case.
(xxix) Receivables Not Assumable. No Receivable is
assumable by another person in a manner which would release the Obligor thereof
from such Obligor's obligations to the Seller with respect to such Receivable.
(xxx) No Impairment. The Seller has not done anything
to convey any right to any person that would result in such person having a
right to payments due under a Receivable or otherwise to impair the rights of
the Depositor in any Receivable or the proceeds thereof.
(xxxi) Tax Liens. There is no Lien against any
Financed Vehicle for delinquent taxes.
(xxxii) No Corporate Obligor. All of the Receivables
are due from Obligors who are natural persons.
(xxxiii) No Liens. No Liens or claims have been filed
for work, labor, or materials relating to a Financed Vehicle that are prior to,
or equal or coordinate with, the security interest in the Financed Vehicle
granted by the related Receivable.
(xxxiv) Servicing. Each Receivable has been serviced
in conformity with all applicable laws, rules and regulation and in conformity
with the Seller's policies and procedures which are consistent with customary,
prudent industry standards.
(xxxv) APR. No Receivable has an APR of less than
0.00% and the weighted average coupon on the pool of Receivables is at least
7.06%.
(xxxvi) Remaining Term. Each Receivable has a
remaining term of at least 5 months and no more than 72 months.
A-7
(xxxvii) Original Term. The weighted average original
term for the Receivables is at least 63.79 months.
(xxxviii) Remaining Balance. Each Receivable has a
remaining balance of at least $2,000.00 and not greater than $39,017.36.
(xxxix) New Vehicles. At least 96.15% of the
aggregate principal balance of the Receivables is secured by Financed Vehicles
which were new at the date of origination.
(xl) No Advances. No advances have been made to
Obligors in order to meet any representation and warranties herein set forth.
(xli) No Repossessions. No Financed Vehicle has been
repossessed on or prior to the applicable Transfer Date.
(xlii) No Omissions. There have been no material
omissions or misstatements in any document provided or statement made to the
Depositor concerning the Receivables by or on behalf of the Seller in connection
with the transactions contemplated by this Agreement.
(xliii) No Proceedings Pending. As of the Cutoff
Date, there are no proceedings pending, or to the best of the Seller's
knowledge, threatened, wherein the Obligor or any governmental agency has
alleged that any Receivable is illegal or unenforceable.
(xliv) Dealer Agreements. Each Dealer from whom the
Seller purchases Receivables has entered into a Dealer Agreement with the Seller
providing for the sale of Receivables from time to time by such Dealer to the
Seller.
(xlv) Receivable Obligations. The Seller has duly
fulfilled all obligations to be fulfilled on its part under or in connection
with the origination, acquisition and assignment of the Receivables. To the best
of the Seller's knowledge, no notice to or consent from any Obligor is necessary
to effect the acquisition of the Receivables by the Indenture Trustee.
(xlvi) Taxes. The sale, transfer, assignment and
conveyance of the Receivables by the Seller pursuant to this Agreement is not
subject to and will not result in any tax, fee or governmental charge payable by
the Seller, the Issuer or the Indenture Trustee to any federal, state or local
government ("Transfer Taxes") other than Transfer Taxes which have or will be
paid by the Seller as due. In the event the Issuer or the Indenture Trustee
receives actual notice of any Transfer Taxes arising out of the transfer,
assignment and conveyance of the Receivables, on written demand by the Issuer or
the Indenture Trustee, or upon the Seller's otherwise being given notice thereof
by the Issuer or the Indenture Trustee, the Seller shall pay, and otherwise
indemnify and hold the Issuer and the Indenture Trustee harmless, on an
after-tax basis, from and against any and all such Transfer Taxes (it being
understood that the Noteholders, the Indenture Trustee and the Issuer shall have
no obligation to pay such Transfer Taxes).
A-8
(xlvii) Computer Tape. The computer tape from which
the selection of the Receivables being acquired on the Closing Date was made
available to the accountants that are providing a comfort letter to the
Noteholders in connection with the numerical information regarding the
Receivables and the Notes.
(xlviii) No Future Disbursement. At the time each
Receivable was acquired from the Dealer, the Amount Financed was fully
disbursed. There is no requirement for future advances of principal thereunder,
and, other than in connection with Dealer participations, all fees and expenses
in connection with the origination of such Receivable have been paid.
(xlix) Physical Damage Insurance Policy. In
connection with the purchase of each Receivable, the Seller required the related
Dealer to furnish evidence that the related Financed Vehicle was covered by a
physical damage insurance policy (i) in an amount at least equal to the lesser
of (a) the actual cash value of the related Financed Vehicle or (b) the unpaid
principal balance owing on such Receivable, (ii) naming the Seller as a loss
payee and (iii) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by comprehensive and
collision coverage.
(l) Dealer Agreement. The Dealer that sold each
Receivable to the Seller has entered into a Dealer Agreement and such Dealer
Agreement, together with the assignment and related documentation signed by the
Dealer, constitutes the entire agreement between the Seller and the related
Dealer with respect to the sale of such Receivable to the Seller. Each such
Dealer Agreement is in full force and effect and is the legal, valid and binding
obligation of such Dealer; there have been no material defaults by such Dealer
with respect to such Receivable; the Seller has fully performed all of its
obligations under such Dealer Agreement; the Seller has not made any statements
or representations to such Dealer (whether written or oral) inconsistent with
any term of such Dealer Agreement; the Purchase Price (as specified in the
applicable Dealer Agreement) for such Receivable has been paid in full by the
Seller, there is no other payment of principal due to such Dealer from the
Seller for the purchase of such Receivable; such Dealer has no right, title or
interest in or to any Receivable; there is no prior course of dealing between
such Dealer and the Seller which will materially and adversely affect the terms
of such Dealer Agreement; and any payment owed to such Dealer by the Seller is a
corporate obligation of the Seller.
(li) Condition of Financed Vehicle. Each Receivable
requires the Obligor to maintain the related Financed Vehicle in good and
workable order.
(lii) Condition of Financed Vehicle as of Transfer
Date. To the best of the Seller's knowledge, each Financed Vehicle was properly
delivered to the related Obligor in good repair, without defects and in
satisfactory order, and each Financed Vehicle is in good operating condition and
repair as of the Transfer Date.
(liii) [Reserved]
(liv) No Consumer Leases. No Receivable constitutes a
"consumer lease" under either (a) the UCC as in effect in the jurisdiction whose
law governs the Receivable or (b) the Consumer Leasing Act, 15 USC 1667.
A-9
(lv) Balance as of Cutoff Date. The aggregate principal balance of the
Receivables as of the Cutoff Date is equal to $807,850,711.24.
A-10
Form of Record Date Statement
B-1
EXHIBIT C
Form of Servicer's Certificate
Collection Period: ________________
Distribution Date: ________________
Hyundai Auto Receivables Trust 2004-A
The undersigned certifies that he is an officer of Hyundai Motor
Finance Company, a California corporation ("HMFC") and that as such he is duly
authorized to execute and deliver this certificate on behalf of HMFC pursuant to
Section 4.09 of the Sale and Servicing Agreement dated September 1, 2004 among
Hyundai Auto Receivables Trust 2004-A, as Issuer, Hyundai ABS Funding
Corporation, as Depositor, HMFC, as Seller and Servicer and Citibank, N.A., as
Indenture Trustee (the "Sale and Servicing Agreement") (all capitalized terms
used herein without definition have the respective meanings specified in the
Sale and Servicing Agreement) and further certifies that:
1. The Servicer's report for the period from _________ to _________
attached to this certificate is complete and accurate and contains all
information required by Section 4.09 of the Sale and Servicing Agreement; and
2. As of _____________, no defaults have occurred.
IN WITNESS WHEREOF, I have fixed hereunto my signature this ___ day of
___________.
HYUNDAI MOTOR FINANCE COMPANY,
as Servicer
By:
_________________________________________
Name:
Title:
C-1
EXHIBIT D
Extension Policy
D-1
SCHEDULE A
Schedule of Receivables
[Delivered to the Trust at Closing]
Sched. A-1
SCHEDULE B
Required Yield Supplement Overcollateralization Amount
With respect to any Payment Date, the "Yield Supplement
Overcollateralization Amount" is the amount specified below:
Yield
Supplement
Overcollateralization
Payment Date Amount
------------ ------
Closing Date $38,506,992.79
October 2004 $37,187,779.52
November 2004 $35,889,782.81
December 2004 $34,613,124.14
January 2005 $33,357,925.68
February 2005 $32,124,310.27
March 2005 $30,912,401.46
April 2005 $29,722,318.67
May 2005 $28,554,180.36
June 2005 $27,408,112.04
July 2005 $26,284,238.61
August 2005 $25,182,685.22
September 2005 $24,103,578.06
October 2005 $23,047,036.57
November 2005 $22,013,170.40
December 2005 $21,002,081.31
January 2006 $20,013,884.09
February 2006 $19,048,672.36
March 2006 $18,106,534.77
April 2006 $17,187,575.03
May 2006 $16,291,877.02
June 2006 $15,419,498.74
July 2006 $14,570,440.04
August 2006 $13,744,770.06
September 2006 $12,942,555.54
October 2006 $12,163,888.97
November 2006 $11,408,870.91
December 2006 $10,677,611.20
January 2007 $9,970,200.59
February 2007 $9,286,720.68
March 2007 $8,627,249.90
April 2007 $7,991,847.70
May 2007 $7,380,591.44
June 2007 $6,793,569.02
July 2007 $6,230,833.65
August 2007 $5,692,436.06
September 2007 $5,178,422.15
October 2007 $4,688,819.39
November 2007 $4,223,726.16
December 2007 $3,783,252.38
Sched. B-1
Yield
Supplement
Overcollateralization
Payment Date Amount
------------ ------
January 2008 $3,367,513.61
February 2008 $2,976,582.30
March 2008 $2,610,546.69
April 2008 $2,269,444.53
May 2008 $1,953,258.65
June 2008 $1,661,875.71
July 2008 $1,395,094.03
August 2008 $1,152,673.89
September 2008 $934,351.68
October 2008 $739,970.91
November 2008 $569,563.26
December 2008 $423,219.55
January 2009 $300,967.80
February 2009 $202,740.00
March 2009 $128,285.54
April 2009 $74,397.40
May 2009 $37,970.64
June 2009 $17,152.94
July 2009 $7,135.53
August 2009 $3,196.43
September 2009 $2,060.34
October 2009 $1,600.49
November 2009 $1,211.64
December 2009 $889.81
January 2010 $631.28
February 2010 $430.35
March 2010 $279.06
April 2010 $166.28
May 2010 $87.35
June 2010 $37.55
July 2010 $12.17
August 2010 $2.31
Sched. B-2