RECEIVABLES PURCHASE AGREEMENT between HYUNDAI CAPITAL AMERICA, as Seller, and HYUNDAI ABS FUNDING CORPORATION, as Depositor Dated as of September 11, 2009
EXHIBIT
10.1
between
HYUNDAI
CAPITAL AMERICA,
as
Seller,
and
HYUNDAI
ABS FUNDING CORPORATION,
as
Depositor
Dated as
of September 11, 2009
Page
|
ARTICLE
I.
|
CERTAIN
DEFINITIONS
|
|
|
ARTICLE
II.
|
CONVEYANCE
OF RECEIVABLES
|
|
|
Section
2.01
|
Conveyance
of Receivables
|
3
|
|
Section
2.02
|
The
Closing
|
4
|
|
ARTICLE
III.
|
REPRESENTATIONS
AND WARRANTIES
|
|
|
Section
3.01
|
Representations
and Warranties of Depositor
|
4
|
|
Section
3.02
|
Representations
and Warranties of Seller
|
5
|
|
ARTICLE
IV.
|
CONDITIONS
|
|
|
Section
4.01
|
Conditions
to Obligation of the Depositor
|
12
|
|
Section
4.02
|
Conditions
to Obligation of the Seller
|
13
|
|
ARTICLE
V.
|
COVENANTS
OF THE SELLER
|
|
|
Section
5.01
|
Protection
of Right, Title and Interest
|
13
|
|
Section
5.02
|
Other
Liens or Interests
|
14
|
|
Section
5.03
|
Costs
and Expenses
|
14
|
|
Section
5.04
|
Hold
Harmless
|
14
|
|
ARTICLE
VI.
|
INDEMNIFICATION
|
|
|
Section
6.01
|
Indemnification
|
15
|
|
ARTICLE
VII.
|
MISCELLANEOUS
PROVISIONS
|
|
|
Section
7.01
|
Obligations
of Seller
|
15
|
|
Section
7.02
|
Repurchase
Events
|
15
|
|
Section
7.03
|
Depositor
Assignment of Repurchased Receivables
|
16
|
|
Section
7.04
|
Transfer
to the Issuer
|
16
|
|
Section
7.05
|
Amendment
|
16
|
|
Section
7.06
|
Waivers
|
16
|
|
Section
7.07
|
Notices
|
17
|
|
Section
7.08
|
Costs
and Expenses
|
17
|
|
Section
7.09
|
Representations
of the Seller and the Depositor
|
17
|
|
Section
7.10
|
Confidential
Information
|
17
|
|
Section
7.11
|
Headings
and Cross-References
|
17
|
|
Section
7.12
|
GOVERNING
LAW
|
17
|
-i-
TABLE
OF CONTENTS
(continued)
Page
|
Section
7.13
|
Counterparts
|
17
|
|
Section
7.14
|
Third
Party Beneficiary
|
17
|
|
Section
7.15
|
No
Proceedings
|
18
|
|
Section
7.16
|
Nonpetition
Covenant
|
18
|
|
SCHEDULE
I
|
Schedule
of Receivables
|
I-1
|
|
SCHEDULE
II
|
Receivable
File Schedule
|
II-1
|
|
SCHEDULE
III
|
Reconveyance
Agreements
|
III-1
|
|
SCHEDULE
IV
|
Conduit
Documents
|
IV-1
|
-ii-
RECEIVABLES
PURCHASE AGREEMENT dated as of September 11, 2009 between HYUNDAI CAPITAL
AMERICA (formerly known as Hyundai Motor Finance Company), a California
corporation, as seller (the “Seller”), and HYUNDAI
ABS FUNDING CORPORATION, a Delaware corporation, as depositor (the “Depositor”).
RECITALS
WHEREAS,
in the regular course of its business, the Seller has purchased certain motor
vehicle retail installment sale contracts secured by new and used automobiles,
light-duty trucks, and minivans from motor vehicle dealers;
WHEREAS,
the Seller and the Depositor wish to set forth the terms pursuant to which such
contracts are to be sold by the Seller to the Depositor; and
WHEREAS,
the Depositor intends, concurrently with its purchases from time to time
hereunder, to convey all of its right, title and interest in and to
$1,550,268,072.20 of such contracts to Hyundai Auto Receivables Trust 2009-A
(the “Issuer”)
pursuant to a Sale and Servicing Agreement dated as of September 11, 2009 (the
“Sale and Servicing
Agreement”), by and among the Issuer, the Depositor, the Seller, Hyundai
Capital America, as Servicer and Citibank, N.A., as Indenture Trustee, and the
Issuer intends to pledge all of its right, title and interest in such contracts
to the Indenture Trustee pursuant to the Indenture.
NOW,
THEREFORE, in consideration of the foregoing, other good and valuable
consideration and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
ARTICLE
I.
Certain
Definitions
Terms not
defined in this Agreement shall have the meanings assigned thereto in the Sale
and Servicing Agreement or the Indenture. As used in this Agreement,
the following terms shall, unless the context otherwise requires, have the
following meanings (such meanings to be equally applicable to the singular and
plural forms of the terms defined):
“Agreement” shall mean
this Receivables Purchase Agreement, as the same may be amended and supplemented
from time to time.
“Closing Date” shall
mean September 11, 2009.
“Conduit Documents”
shall mean the documents listed on Schedule IV hereto.
“Depositor” shall mean
Hyundai ABS Funding Corporation, a Delaware corporation, its successors and
assigns.
“Indemnified Losses”
shall have the meaning specified in Section 6.01.
“Indemnified Party”
shall have the meaning specified in Section 6.01.
“Indenture” means the
Indenture, dated as of September 11, 2009, between the Issuer and the Indenture
Trustee, as amended, supplemented, amended and restated or otherwise modified
from time to time.
“Lien Certificate”
means with respect to a Financed Vehicle, an original certificate of title,
certificate of lien or other notification issued by the Registrar of Titles of
the applicable state to a secured party which indicates that the lien of the
secured party on the Financed Vehicle is recorded on the original certificate of
title. In any jurisdiction in which the original certificate of title
is required to be given to the Obligor, the term “Lien Certificate”
shall mean only a certificate or notification issued to a secured
party.
“Purchase Price”
means, with respect to any Receivable, an amount equal to the Principal Balance
of such Receivable as of the Cutoff Date.
“Receivable” shall
mean any Contract listed on Schedule I hereto (which Schedule may be in the form
of microfiche).
“Reconveyance
Documents” shall mean the documents listed on Schedule III
hereto.
“Registrar of Titles”
means with respect to any state, the governmental agency or body responsible for
the registration of, and the issuance of certificates of title relating to,
motor vehicles and liens thereon.
“Repurchase Event”
shall have the meaning specified in Section 7.02.
“Sale and Servicing
Agreement” shall have the meaning set forth in the recitals.
“Schedule of
Receivables” shall mean the list of Receivables annexed hereto as
Schedule I.
“Seller” shall mean
Hyundai Capital America, a California corporation, its successors and
assigns.
“Transfer Date” shall
mean the Cutoff Date.
“Transfer Tax” shall
have the meaning specified in Section 3.02(b)(xlvi).
“Underwriting
Agreement” means the Underwriting Agreement dated September 2, 2009,
relating to Hyundai Auto Receivables Trust 2009-A among the Depositor, the
Seller and Banc of America Securities LLC, on behalf of itself and as
Representative of the Several Underwriters, as amended, supplemented,
amended and restated or otherwise modified from time to time.
2
ARTICLE
II.
Conveyance of
Receivables
Section
2.01 Conveyance of
Receivables.
(a) In
consideration of the Depositor’s delivery to the Seller on the Closing Date of
approximately $1,306,519,241.96 and a capital contribution by the Seller to the
Depositor of approximately $243,748,830.24 aggregate principal amount of the
Receivables, the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Depositor without recourse (subject to the obligations
of the Seller herein) all right, title, and interest of the Seller in and
to:
(i) the
Receivables and all moneys received thereon on or after the Cutoff
Date;
(ii) the
security interests in the Financed Vehicles and any accessions thereto granted
by Obligors pursuant to the Receivables and any other interest of the Seller in
such Financed Vehicles;
(iii) any
Liquidation Proceeds and any other proceeds with respect to the Receivables
pursuant to the Hyundai Assurance Program or from claims on any physical damage,
credit life or disability insurance policies covering Financed Vehicles or
Obligors, including any vendor’s single interest or other collateral protection
insurance policy;
(iv) any
property that shall have secured any Receivable and that shall have been
acquired by or on behalf of the Seller;
(v) all
documents and other items contained in the Receivable Files;
(vi) all
proceeds from any Receivable repurchased by a Dealer pursuant to a Dealer
Agreement; and
(vii) the
proceeds of any and all of the foregoing.
The
Seller and the Depositor agree that the purchase price for the Receivables sold
by the Seller to the Depositor represents fair market value for the
Receivables. The Depositor shall make payment in respect of the
Purchase Price upon demand by the Seller.
(b) [Reserved].
(c) [Reserved].
(d) The
Seller and the Depositor intend that the transfer of assets by the Seller to the
Depositor pursuant to this Agreement be a sale of the ownership interest in such
assets to the Depositor, rather than the mere granting of a security interest to
secure a borrowing. In the event, however, that such transfer is
deemed not to be a sale but to be of a mere security interest to secure a
borrowing or such transfer is otherwise not effective to sell the Receivables
and other property described in Section 2.01(a) hereof, the Seller shall be
deemed to have hereby granted to the Depositor a perfected first priority
security interest in all such assets, and this Agreement shall constitute a
security agreement under applicable law. Pursuant to the Sale and
Servicing Agreement and Section 7.04 hereof, the Depositor may sell, transfer
and assign to the Issuer (i) all or any portion of the assets assigned to
the Depositor hereunder, (ii) all or any portion of the Depositor’s rights
against the Seller under this Agreement and (iii) all proceeds
thereof. Such assignment may be made by the Depositor with or without
an assignment by the Depositor of its rights under this Agreement, and without
further notice to or acknowledgement from the Seller. The Seller
waives, to the extent permitted under applicable law, all claims, causes of
action and remedies, whether legal or equitable (including any right of setoff),
against the Depositor or any assignee of the Depositor relating to such action
by the Depositor in connection with the transactions contemplated by the Sale
and Servicing Agreement.
3
Section
2.02 The
Closing. The sale and purchase of the Receivables shall take
place at a closing at the offices of Xxxxx Xxxxx LLP, 00 Xxxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, on the Closing Date, simultaneously with the closing
under (a) the Sale and Servicing Agreement, (b) the Indenture and (c) the Trust
Agreement.
ARTICLE
III.
Representations and
Warranties
Section
3.01 Representations and
Warranties of Depositor. The Depositor hereby represents and
warrants as follows to the Seller and the Indenture Trustee as of the date
hereof and the Transfer Date:
(a) Organization and Good
Standing. The Depositor has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with the corporate power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted, including the corporate power, authority and legal right to
acquire and sell the Receivables.
(b) Power and
Authority. The Depositor has the power and authority to
execute and deliver this Agreement and to carry out its terms; and the
execution, delivery and performance of this Agreement have been duly authorized
by the Depositor by all necessary corporate action.
(c) No
Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time or both) a default under, the charter or
bylaws of the Depositor, or any indenture, agreement or other instrument to
which the Depositor is a party or by which it is bound. There shall
be no breach of the representations and warranties in this paragraph resulting
from any of the foregoing breaches, violations, Liens or other matters which,
individually or in the aggregate, would not materially and adversely affect the
Depositor’s ability to perform its obligations under the Basic Documents or the
consummation of the transactions as contemplated by the Basic
Documents.
4
Section
3.02 Representations and
Warranties of Seller.
(a) The
Seller hereby represents and warrants as follows to the Depositor and the
Indenture Trustee as of the date hereof and as of the Transfer
Date:
(i) Organization and Good
Standing. The Seller has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
California, with the corporate power and authority to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted.
(ii) Due
Qualification. The Seller is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions where the failure to do so would materially
and adversely affect the Seller’s ability to acquire, own and service the
Receivables.
(iii) Power and
Authority. The Seller has the power and authority to execute
and deliver this Agreement and the other Basic Documents to which it is a party
and to carry out their respective terms; the Seller had at all relevant times,
and has, full power, authority and legal right to sell, transfer and assign the
property sold, transferred and assigned to the Depositor hereby and has duly
authorized such sale, transfer and assignment to the Depositor by all necessary
corporate action; and the execution, delivery and performance of this Agreement
and the other Basic Documents to which the Seller is a party have been duly
authorized by the Seller by all necessary corporate action.
(iv) No
Violation. The consummation of the transactions contemplated
by this Agreement and the other Basic Documents to which the Seller is a party
and the fulfillment of their respective terms do not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the articles of incorporation
or bylaws of the Seller, or any indenture, agreement or other instrument to
which the Seller is a party or by which it is bound, or result in the creation
or imposition of any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement or other instrument (other than this Agreement),
or violate any law or, to the best of the Seller’s knowledge, any order, rule or
regulation applicable to the Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller or its properties. There shall be
no breach of the representations and warranties in this paragraph resulting from
any of the foregoing breaches, violations, Liens or other matters which,
individually or in the aggregate, would not materially and adversely affect the
Seller’s ability to perform its obligations under the Basic Documents or the
consummation of the transactions as contemplated by the Basic
Documents.
(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 (A)
asserting the invalidity of this Agreement or any other Basic Document to which
the Seller is a party, (B) 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 (C) seeking any determination or ruling that would
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.
5
(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
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000.
(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, other than (A) UCC filings and (B)
consents, licenses, approvals, registrations, authorizations or declarations
which, if not obtained or made, would not have a material adverse affect on the
enforceability or collectibility of the Receivables or would not
materially and adversely affect the ability of the Depositor to perform its
obligations under the Basic Documents.
(ix) 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.
(x) 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.
(xi) [Reserved].
(xii) 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.
(xiii) No
Notice. The Seller represents and warrants that it acquired
title to the Receivables in good faith, without notice of any adverse
claim.
(xiv) 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.
6
(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 or as of the Cutoff Date as applicable,
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 the Seller, is not a government or governmental subdivision
or agency and is not shown on the Servicer’s records as a debtor in 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, 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 Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board’s
Regulations “B” and “Z”, the Servicemembers Civil Relief Act, the
Xxxxx-Xxxxx-Xxxxxx 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.
(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.
7
(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 I to this
Agreement is true and correct in all material respects as of the close of
business on the Cutoff Date.
(vii) Marking
Records. By the Transfer Date, the Seller will have caused its
computer and accounting records relating to each Receivable to be clearly and
unambiguously marked to show that the Receivables have been sold to the
Depositor by the Seller and transferred and assigned by the Depositor to the
Issuer in accordance with the terms of the Sale and Servicing Agreement and
pledged by the Issuer to the Indenture Trustee in accordance with the terms of
the Indenture.
(viii) Computer
Tape. The computer tape regarding the Receivables made
available by the Seller to the Depositor is complete and accurate in all
respects as of the Transfer Date.
(ix) No Adverse
Selection. No selection procedures believed by the Seller to
be adverse to the Noteholders were utilized in selecting the
Receivables.
(x) Chattel
Paper. Each Receivable constitutes chattel paper within the
meaning of the UCC as in effect in the state of origination.
(xi) One
Original. There is only one 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.
8
(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.
(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. As of the Cutoff Date, the Servicer’s accounting
records did not disclose that there was any default, breach, violation or event
permitting acceleration under the terms of any Receivable (other than payment
delinquencies of not more than 30 days), or that any 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.
9
(xix) Insurance. The
Seller, in accordance with its customary procedures, has determined at the
origination of the Receivable that the Obligor had obtained physical damage
insurance covering the related Finance Vehicle at that time and under the terms
of each Receivable, the Obligor is required to maintain physical damage
insurance covering the related Financed Vehicle and to name the Seller as a loss
payee.
(xx) Final Scheduled Maturity
Date. No Receivable has a final scheduled payment date after
August 24, 2015.
(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 were originated in 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 Cutoff Date, except as reflected
on the computer tape delivered in connection with the sale of the
Receivables.
(xxiv) [Reserved].
(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.
10
(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) [Reserved].
(xxxii) No Corporate
Obligor. All of the Receivables are due from Obligors who are
natural persons.
(xxxiii) No
Liens. According to the Servicer’s records as of the Cutoff
Date, 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 Vehicles granted by the
Receivables.
(xxxiv) [Reserved].
(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 5.28%.
(xxxvi) Remaining
Term. Each Receivable has a remaining term of at least
3 months and no more than 72 months.
(xxxvii) Original
Term. The weighted average original term for the Receivables
is at least 63.19 months.
(xxxviii) Remaining
Balance. Each Receivable has a remaining balance of at least
$2,000.91 and not greater than $53,774.14.
(xxxix) New
Vehicles. At least 96.25% of the aggregate principal balance
of the Receivables is secured by Financed Vehicles which were new at the date of
origination.
(xl) [Reserved].
(xli) No
Repossessions. No Financed Vehicle has been repossessed on or
prior to the applicable Cutoff Date.
(xlii) [Reserved].
(xliii) [Reserved].
(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. 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 Issuer.
11
(xlvi) [Reserved].
(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) [Reserved].
(l) [Reserved].
(li) [Reserved].
(lii) [Reserved].
(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.
(lv) Balance as of Cutoff
Date. The aggregate principal balance of the Receivables as of
the Cutoff Date is equal to $1,550,268,072.20.
ARTICLE
IV.
Conditions
Section
4.01 Conditions to Obligation of
the Depositor. The obligation of the Depositor to purchase the
Receivables is subject to the satisfaction of the following
conditions:
(a) Representations and
Warranties True. The representations and warranties of the
Seller hereunder shall be true and correct on the Transfer Date with the same
effect as if then made, and the Seller shall have performed all obligations to
be performed by it hereunder on or prior to the Transfer Date.
(b) Computer Files
Marked. The Seller shall, at its own expense, on or prior to
the Transfer Date, indicate in its computer files that the Receivables have been
sold to the Depositor pursuant to this Agreement and deliver to the Depositor
the Schedule of Receivables, certified by the Seller’s President, a Vice
President or the Treasurer to be true, correct and complete.
12
(c) Documents To Be Delivered by
the Seller on the Transfer Date.
(i) Evidence of UCC
Filing. On or prior to the Transfer Date, the Seller shall
record and file, at its own expense, a UCC-1 financing statement, in each
jurisdiction in which required by applicable law, naming the Seller as debtor
and naming the Depositor as secured party, describing the Receivables and the
other assets assigned to the Depositor pursuant to Section 2.01 hereof, meeting
the requirements of the laws of each such jurisdiction and in such manner as is
necessary to perfect the sale, transfer, assignment and conveyance of the
Receivables and such other assets to the Depositor. The Seller shall
deliver to the Depositor a file-stamped copy or other evidence satisfactory to
the Depositor of such filing on or prior to the Transfer Date.
(ii) Other
Documents. Such other documents as the Depositor may
reasonably request.
(d) Other
Transactions. The transactions contemplated by the Sale and
Servicing Agreement, the Indenture and the Trust Agreement to be consummated on
the Transfer Date shall be consummated on such date.
Section
4.02 Conditions to Obligation of
the Seller. The obligation of the Seller to sell the
Receivables to the Depositor is subject to the satisfaction of the following
conditions:
(a) Representations and
Warranties True. The representations and warranties of the
Depositor hereunder shall be true and correct on the Transfer Date with the same
effect as if then made, and the Depositor shall have performed all obligations
to be performed by it hereunder on or prior to the Transfer Date.
(b) Receivables Purchase
Price. On the Transfer Date, the Depositor shall have
delivered to the Seller the Purchase Price specified in Section
2.01.
ARTICLE
V.
Covenants of the
Seller
The
Seller agrees with the Depositor and the Indenture Trustee as
follows:
Section
5.01 Protection of Right, Title
and Interest.
(a) Filings. The
Seller shall cause, at its own expense, all financing statements and
continuation statements and any other necessary documents (other than the costs
to re-title the Financed Vehicles in order to name a party other than the Seller
as lienholder) covering the right, title and interest of the Seller, the
Depositor, the Trust and the Indenture Trustee, respectively, in and to the
Receivables and the other property included in the Trust Estate to be promptly
filed and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Depositor hereunder, the Trust
under the Sale and Servicing Agreement and the Indenture Trustee under the
Indenture in and to the Receivables and the other property included in the Trust
Estate. The Seller shall deliver to the Depositor and the Indenture
Trustee file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recordation, registration or filing. The Depositor shall cooperate
fully with the Seller in connection with the obligations set forth above and
will execute any and all documents reasonably required to fulfill the intent of
this paragraph.
13
(b) Name
Change. If the Seller makes any change in its name, identity
or corporate structure that would make any financing statement or continuation
statement filed in accordance with paragraph (a) above seriously misleading
within the applicable provisions of the UCC or any title statute, the Seller
shall give the Depositor, the Indenture Trustee and the Owner Trustee prompt
written notice thereof and shall promptly file such financing statements or
amendments as may be necessary to continue the perfection of the Depositor’s and
the Indenture Trustee’s interest in the property conveyed pursuant to Section
2.01.
Section
5.02 Other
Liens or Interests. Except for the conveyances hereunder and
pursuant to the Basic Documents, the Seller shall not sell, pledge, assign or
transfer to any Person, or grant, create, incur, assume, or suffer to exist any
Lien on, or any interest in, to or under the Receivables, and the Seller shall
defend the right, title and interest of the Depositor, the Trust and the
Indenture Trustee in, to and under the Receivables against all claims of third
parties claiming through or under the Seller.
Section
5.03 Costs
and Expenses. The Seller agrees to pay all reasonable costs
and disbursements in connection with the perfection, as against all third
parties, of the Depositor’s, the Issuer’s and the Indenture Trustee’s right,
title and interest in and to the Receivables and the other property included in
the Trust Estate.
Section
5.04 Hold
Harmless. Seller shall protect, defend, indemnify and hold the
Depositor and the Issuer and their respective assigns and their attorneys,
accountants, employees, officers and directors harmless from and against all
losses, liabilities, claims, damages and expenses of every kind and character,
as incurred, resulting from or relating to or arising out of (i) the inaccuracy,
nonfulfillment or breach of any representation, warranty, covenant or agreement
made by Seller in this Agreement, (ii) any legal action, including, without
limitation, any counterclaim, that has either been settled by the litigants
(which settlement, if Seller is not a party thereto shall be with the consent of
Seller) or has proceeded to judgment by a court of competent jurisdiction, in
either case to the extent it is based upon alleged facts that, if true, would
constitute a breach of any representation, warranty, covenant or agreement made
by Seller in this Agreement, (iii) any actions or omissions of Seller or any
employee or agent of Seller or any Dealer occurring prior to the Transfer Date
with respect to any of the Receivables or Financed Vehicles or (iv) any failure
of a Receivable to be originated in compliance with all requirements of
law. These indemnity obligations shall be in addition to any
obligation that the Seller may otherwise have.
14
ARTICLE
VI.
Indemnification
Section
6.01 Indemnification.
Without
limiting any other rights any such Person may have hereunder or under applicable
law, the Seller hereby indemnifies and holds harmless the Depositor and its
officers, directors, agents and employees (each an “Indemnified Party”)
from and against any and all damages, losses, claims, liabilities, penalties,
costs and expenses (including reasonable attorneys’ fees and court costs) (all
of the foregoing collectively, the “Indemnified Losses”)
at any time imposed on or incurred by any Indemnified Party arising out of or
otherwise relating to this Agreement, the transactions contemplated hereby or
the acquisition of any of the Receivables, or any action taken or omitted by any
of the Indemnified Parties, whether arising by reason of the acts to be
performed by the Seller hereunder or otherwise, excluding only Indemnified
Losses to the extent (a) such Indemnified Losses resulted from gross negligence
or willful misconduct of the Indemnified Party seeking indemnification, (b) due
to the financial inability of the Obligor to pay a Receivable and for which
reimbursement would constitute recourse to the Seller for uncollectible
Receivables or (c) such Indemnified Losses include taxes on, or measured by, the
overall net income of the Depositor or any other Indemnified Party.
ARTICLE
VII.
Miscellaneous
Provisions
Section
7.01 Obligations of
Seller. The obligations of the Seller under this Agreement
shall not be affected by reason of any invalidity, illegality or irregularity of
any Receivable.
Section
7.02 Repurchase
Events. The Seller hereby covenants and agrees that the
occurrence of a breach of any of the Seller’s representations and warranties
contained in Section 3.02(b), with respect to any Receivable shall
constitute an event obligating the Seller to repurchase such Receivable if the
interest of the Noteholders or the Issuer are materially and adversely affected
by such breach (each, a “Repurchase Event”). If the Seller does not
correct or cure such breach prior to the end of the Collection Period (or, if
the Seller elects, an earlier date) after the date that the Seller became aware
or was notified of such breach, then the Seller shall purchase any Receivable
materially and adversely affected by such breach from the Issuer on the Payment
Date following the end of such Collection Period. Any such purchase
by the Seller shall be at a price equal to the Purchased Amount. In
consideration for such repurchase, the Seller shall make (or shall cause to be
made) a payment to the Issuer equal to the Purchased Amount by depositing such
amount into the Collection Account on the applicable Payment
Date. Upon payment of such Purchased Amount by the Seller, the Issuer
and the Indenture Trustee shall release and shall execute and deliver such
instruments of release, transfer or assignment, in each case without recourse or
representation, as shall be reasonably necessary to vest in the Seller or its
designee any Receivable repurchased pursuant hereto. It is understood
and agreed that the right to cause the Seller to purchase any Receivable as
described above shall constitute the sole remedy respecting such breach
available to the Issuer, the Noteholders, the Owner Trustee, the
Certificateholders and the Indenture Trustee. Neither the Owner
Trustee nor the Indenture Trustee will have any duty to conduct an affirmative
investigation as to the occurrence of any condition requiring the repurchase of
any Receivable pursuant to this Section 7.02.
15
Section
7.03 Depositor Assignment of
Repurchased Receivables. With respect to all Receivables
repurchased by the Seller pursuant to this Agreement, the Depositor shall
assign, without recourse, representation or warranty, to the Seller all of the
Depositor’s right, title and interest in and to such Receivables and all
security and documents relating thereto.
Section
7.04 Transfer to the
Issuer. The Seller acknowledges and agrees that (1) the
Depositor will, pursuant to the Sale and Servicing Agreement, transfer and
assign the Receivables and assign its rights under this Agreement with respect
thereto to the Issuer and, pursuant to the Indenture, the Issuer will pledge the
Receivables to the Indenture Trustee, and (2) the representations and
warranties contained in this Agreement and the rights of the Depositor under
this Agreement, including under Section 7.02, are intended to benefit the
Issuer, the Noteholders and the Certificateholder. The Seller hereby
consents to such transfers and assignments and agrees that enforcement of a
right or remedy hereunder by the Indenture Trustee, the Owner Trustee or the
Issuer shall have the same force and effect as if the right or remedy had been
enforced or executed by the Depositor.
Section
7.05 Amendment. This
Agreement may be amended from time to time, with prior written notice to the
Rating Agencies but without the consent of the Noteholders or the
Certificateholder, by a written amendment duly executed and delivered by the
Seller and the Depositor, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of Noteholders or the Certificateholder;
provided that
such amendment shall not materially and adversely affect the interest of any
Noteholder or Certificateholder. This Agreement may also be amended
by the Seller and the Depositor, with prior written notice to the Rating
Agencies and the prior written consent of Holders of Notes evidencing at least a
majority of the Outstanding Amount of the Notes and Holders of Certificates
evidencing at least a majority of the Certificate Balance (excluding, for
purposes of this Section 7.05, Certificates held by the Seller or any of its
affiliates), for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Noteholders or the Certificateholder; provided, however, that no such
amendment may (i) reduce the interest rate or principal amount of any Note or
Certificate or delay the Stated Maturity Date of any Note without the consent of
the Holder of such Note or (ii) reduce the aforesaid percentage of the Notes or
the Certificates that is required to consent to any such amendment, without the
consent of the Holders of all the outstanding Notes and Certificates.
Section
7.06 Waivers. No
failure or delay on the part of the Depositor, the Issuer or the Indenture
Trustee in exercising any power, right or remedy under this Agreement or the
Xxxx of Sale shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or
remedy.
16
Section
7.07 Notices. All
demands, notices and communications under this Agreement shall be in writing,
electronically delivered, personally delivered or mailed by certified mail,
return receipt requested, to: (1) in the case of the Seller, Hyundai
Capital America, 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000,
Attention: Vice President, Finance, with a copy to General Counsel; (2) in the
case of the Depositor, Hyundai ABS Funding Corporation, 0000 Xxxxxxxxx Xxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, Attention: Vice President and
Secretary, with a copy to General Counsel; (3) in the case of Fitch, Fitch,
Inc., Attention: ABS Surveillance, 0 Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, XX 00000; and
(4) in the case of Standard & Poor’s, via electronic delivery to
Xxxxxxxx_xxxxxxx@xxxxx.xxx or at the following address: Standard & Poor’s
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS
Surveillance Department; or as to each of the foregoing, at such other address
as shall be designated by written notice to the other parties.
Section
7.08 Costs
and Expenses. The Seller shall pay all expenses incident to
the performance of its obligations under this Agreement and the Seller agrees to
pay all reasonable out-of-pocket costs and expenses of the Depositor, in
connection with the perfection as against third parties of the Depositor’s, the
Issuer’s and the Indenture Trustee’s right, title and interest in and to the
Receivables and the enforcement of any obligation of the Seller
hereunder.
Section
7.09 Representations of the
Seller and the Depositor. The respective agreements,
representations, warranties and other statements by the Seller and the Depositor
set forth in or made pursuant to this Agreement shall remain in full force and
effect and will survive the closing under Section 2.02 and the transfers and
assignments referred to in Section 7.04.
Section
7.10 Confidential
Information. The Depositor agrees that it will neither use nor
disclose to any Person the names and addresses of the Obligors, except to
enforce the Depositor’s rights hereunder, under the Receivables, under the Sale
and Servicing Agreement or any other Basic Document, or as required by any of
the foregoing or by law.
Section
7.11 Headings and
Cross-References. The various headings in this Agreement are
included for convenience only and shall not affect the meaning or interpretation
of any provision of this Agreement. References in this Agreement to
section names or numbers are to such Sections of this Agreement.
Section
7.12 GOVERNING
LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER OR THEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
Section
7.13 Counterparts. This
Agreement may be executed in counterparts, each of which shall be an original,
but all of which together shall constitute one and the same
instrument.
Section
7.14 Third
Party Beneficiary. The Indenture Trustee is an express third
party beneficiary of this Agreement and shall be entitled to enforce the
provisions of this Agreement as if it were a party hereto.
17
Section
7.15 No
Proceedings. So long as this Agreement is in effect, and for
one year plus one day following its termination, the Seller agrees that it will
not file any involuntary petition or otherwise institute any bankruptcy,
reorganization arrangement, insolvency or liquidation proceeding or other
proceedings under any federal or state bankruptcy law or similar law against the
Trust.
Section
7.16 Nonpetition
Covenant. Notwithstanding any prior termination of this
Agreement, the Seller shall not, prior to the date that is one year and one day
after the termination of this Agreement with respect to the Depositor,
acquiesce, petition or otherwise invoke or cause the Depositor to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Depositor under any federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Depositor or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Depositor.
[Remainder
of Page Intentionally Left Blank]
18
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective duly authorized officers as of the date and year first above
written.
HYUNDAI
CAPITAL AMERICA
By: /s/ Xxx Xxxx Ko
Name: Xxx
Xxxx Ko
Title: Treasurer
S-1
HYUNDAI
ABS FUNDING CORPORATION
By: /s/ Min Xxx Xxxxx Park
Name: Min
Xxx Xxxxx Park
Title: Vice
President and Secretary
S-2
SCHEDULE
I
Schedule of
Receivables
[To be
delivered to the Trust at Closing]
I-1
SCHEDULE
II
Receivable File
Schedule
|
1.
|
All
documents obtained or created in connection with the credit
investigation.
|
|
2.
|
All
Obligor records including without limitation (i) file copy of Receivable;
(ii) copy of Dealer assignment (if applicable) and any intervening
assignments; (iii) warranty copy (if applicable); (iv) credit life
insurance policy (if applicable); (v) proof of auto insurance or obligor
agreement to provide such insurance; (vi) title application; (vii)
contract verification sheet; and (viii) original
application.
|
|
3.
|
Original
document file together with all documents maintained
therein.
|
|
4.
|
Any
and all other documents that the Servicer shall keep on file in accordance
with its customary procedures relating to a Receivable, an Obligor or a
Financed Vehicle.
|
II-1
SCHEDULE
III
Reconveyance
Agreements
Reconveyance
and Release Agreement dated as of September 11, 2009 among Hyundai BC Funding
Corporation, JPMorgan Chase Bank, N.A., Amsterdam Funding Corporation, Xxxxxx
Capital LLC, Sheffield Receivables Corporation and Thunder Bay Funding,
LLC
Receivables
Transfer Agreement and Assignment dated as of September 11, 2009 between Hyundai
Capital America and Hyundai BC Funding Corporation
III-1
SCHEDULE
IV
Conduit
Documents
Purchase
and Sale Agreement dated as of January 17, 2000, as amended, between Hyundai
Capital America and Hyundai BC Funding Corporation.
Second
Amended and Restated Receivables Purchase Agreement dated as of July 23, 2002,
as amended, among Hyundai BC Funding Corporation, Hyundai Capital America,
the various purchasers from time to time party thereto, the various purchaser
agents from time to time party thereto, and JPMorgan Chase Bank,
N.A.
IV-1
