SALE AND SERVICING AGREEMENT among HYUNDAI AUTO RECEIVABLES TRUST 2007-A, Issuer, HYUNDAI ABS FUNDING CORPORATION, Depositor, HYUNDAI MOTOR FINANCE COMPANY, Seller and Servicer, and CITIBANK, N.A., Indenture Trustee Dated as of September 28, 2007
Exhibit
10.7
EXECUTION
COPY
among
HYUNDAI
AUTO RECEIVABLES TRUST 2007-A,
Issuer,
HYUNDAI
ABS FUNDING CORPORATION,
Depositor,
HYUNDAI
MOTOR FINANCE COMPANY,
Seller
and Servicer,
and
CITIBANK,
N.A.,
Indenture
Trustee
Dated
as
of September 28, 2007
TABLE
OF CONTENTS
Page
|
|||
ARTICLE
I.
|
DEFINITIONS
|
1
|
|
Section
1.01
|
Definitions
|
1
|
|
Section
1.02
|
Other
Definitional Provisions
|
18
|
|
ARTICLE
II.
|
CONVEYANCE
OF RECEIVABLES
|
19
|
|
Section
2.01
|
Conveyance
of Receivables
|
19
|
|
ARTICLE
III.
|
THE
RECEIVABLES
|
20
|
|
Section
3.01
|
Representations
and Warranties of the Seller
|
20
|
|
Section
3.02
|
Representations
and Warranties of the Depositor
|
20
|
|
Section
3.03
|
Repurchase
upon Breach
|
21
|
|
ARTICLE
IV.
|
ADMINISTRATION
AND SERVICING OF RECEIVABLES
|
22
|
|
Section
4.01
|
Duties
of Servicer
|
22
|
|
Section
4.02
|
Collection
of Receivable Payments; Modifications of Receivables
|
23
|
|
Section
4.03
|
Realization
upon Receivables
|
23
|
|
Section
4.04
|
[Reserved]
|
24
|
|
Section
4.05
|
Maintenance
of Security Interests in Financed Vehicles
|
24
|
|
Section
4.06
|
Covenants
of Servicer
|
24
|
|
Section
4.07
|
Purchase
of Receivables Upon Breach
|
24
|
|
Section
4.08
|
Servicing
Fee
|
25
|
|
Section
4.09
|
Servicer’s
Certificate
|
25
|
|
Section
4.10
|
Annual
Statement as to Compliance, Notice of Servicer Termination
Event
|
26
|
|
Section
4.11
|
Compliance
with Regulation AB
|
26
|
|
Section
4.12
|
Access
to Certain Documentation and Information Regarding
Receivables
|
26
|
|
Section
4.13
|
Term
of Servicer
|
26
|
|
Section
4.14
|
Annual
Independent Accountants’ Report
|
26
|
|
Section
4.15
|
Reports
to the Commission
|
27
|
|
Section
4.16
|
Compensation
of Indenture Trustee
|
27
|
|
ARTICLE
V.
|
DISTRIBUTIONS;
STATEMENTS TO SECURITYHOLDERS
|
28
|
|
Section
5.01
|
Accounts
|
28
|
-i-
TABLE
OF CONTENTS
(continued)
Page
|
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Section
5.02
|
Application
of Collections
|
29
|
|
Section
5.03
|
Property
of the Trust
|
30
|
|
Section
5.04
|
Purchased
Amounts
|
30
|
|
Section
5.05
|
Distributions
|
30
|
|
Section
5.06
|
Reserve
Account
|
31
|
|
Section
5.07
|
Statements
to Securityholders
|
32
|
|
Section
5.08
|
Advances
by the Servicer
|
32
|
|
Section
5.09
|
Interest
Rate Swap Agreement
|
32
|
|
ARTICLE
VI.
|
THE
DEPOSITOR
|
34
|
|
Section
6.01
|
Representations
of Depositor
|
34
|
|
Section
6.02
|
Corporate
Existence
|
36
|
|
Section
6.03
|
Liability
of Depositor
|
36
|
|
Section
6.04
|
Merger
or Consolidation of, or Assumption of the Obligations of,
Depositor
|
37
|
|
Section
6.05
|
Amendment
of Depositor’s Organizational Documents
|
37
|
|
ARTICLE
VII.
|
THE
SERVICER
|
37
|
|
Section
7.01
|
Representations
of Servicer
|
37
|
|
Section
7.02
|
Indemnities
of Servicer
|
39
|
|
Section
7.03
|
Merger
or Consolidation of, or Assumption of the Obligations of,
Servicer
|
40
|
|
Section
7.04
|
Limitation
on Liability of Servicer and Others
|
41
|
|
Section
7.05
|
Delegation
of Duties
|
41
|
|
Section
7.06
|
Servicer
Not to Resign
|
41
|
|
ARTICLE VIII. |
DEFAULT
|
42
|
|
Section
8.01
|
Servicer
Termination Events
|
42
|
|
Section
8.02
|
Consequences
of a Servicer Termination Event
|
42
|
|
Section
8.03
|
Appointment
of Successor Servicer
|
43
|
|
Section
8.04
|
Notification
to Securityholders
|
43
|
|
Section
8.05
|
Waiver
of Past Defaults
|
44
|
|
ARTICLE
IX.
|
TERMINATION
|
44
|
|
Section
9.01
|
Optional
Purchase of All Receivables
|
44
|
-ii-
TABLE
OF CONTENTS
(continued)
Page
|
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ARTICLE X. |
MISCELLANEOUS
|
44
|
|
Section
10.01
|
Amendment
|
44
|
|
Section
10.02
|
Protection
of Title to Trust
|
45
|
|
Section
10.03
|
Notices
|
47
|
|
Section
10.04
|
Assignment
by the Depositor or the Servicer
|
48
|
|
Section
10.05
|
Limitations
on Rights of Others
|
48
|
|
Section
10.06
|
Severability
|
48
|
|
Section
10.07
|
Counterparts
|
48
|
|
Section
10.08
|
Headings
|
48
|
|
Section
10.09
|
GOVERNING
LAW
|
48
|
|
Section
10.10
|
Assignment
by Issuer
|
48
|
|
Section
10.11
|
Nonpetition
Covenants
|
49
|
|
Section
10.12
|
Limitation
of Liability of Owner Trustee and Indenture Trustee
|
49
|
|
Section
10.13
|
Limitation
of Rights
|
49
|
Exhibit
A
|
Representations
and Warranties of Hyundai Motor Finance Company Under Section 3.02
of the
Receivables Purchase Agreement
|
Exh.
A-1
|
Exhibit
B
|
Form
of Record Date Statement
|
Exh.
B-1
|
Exhibit
C
|
Form
of Servicer’s Certificate
|
Exh.
C-1
|
Schedule
A
|
Schedule
of Receivables
|
Sched.
A-1
|
Schedule
B
|
Yield
Supplement Overcollateralization Amount
|
Sched.
B-1
|
Appendix
A
|
Regulation
AB Representations, Warranties and Covenants
|
App.
A-1
|
Schedule
I
|
Servicing
Criteria To Be Addressed in Assessment of Compliance
|
Sched.
I-1
|
-iii-
This
SALE
AND SERVICING AGREEMENT, dated as of September 28, 2007, among HYUNDAI AUTO
RECEIVABLES TRUST 2007-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 28, 2007, among
Hyundai Auto Receivables Trust 2007-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.
“Administrator”
means
Hyundai Motor Finance Company, a California corporation, and its successors
in
interest.
“Adjusted
Pool Balance”
means,
with respect to any Payment Date, the Pool Balance as of the end of the previous
Collection Period less the 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.
“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, (iv) Recoveries, (v) any amounts paid
by
the Servicer in connection with a purchase of Receivables pursuant to Section
9.01(a) hereof, (vi) the Net Swap Receipts (excluding Swap Termination Payments
received from the Swap Counterparty and deposited into the Swap Termination
Payment Account), (vii) amounts on deposit in the Swap Termination Payment
Account to the extent such amounts are required to be included in Available
Amounts pursuant to Section 5.09(d) of this Agreement and (viii) Swap
Replacement Proceeds, to the extent required to be included in Available Amounts
pursuant to Section 5.09(f) of this Agreement.
“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, the Interest Rate Swap 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-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 5.29050% Asset Backed Notes, Class A-1, substantially in the form of Exhibit
A-1 to the Indenture.
“Class
A-1 Rate”
means
5.29050% per annum, computed on the basis of an actual/360-day
year.
“Class
A-2 Noteholder”
means
the Class A-2a Noteholders and the Class A-2b Noteholders.
“Class
A-2 Notes”
means,
collectively, the Class A-2a Notes and the Class A-2b Notes.
2
“Class
A-2a Noteholder”
means
the Person in whose name a Class A-2a Note is registered in the Note
Register.
“Class
A-2a Notes”
means
the 5.11% Asset Backed Notes, Class A-2a, substantially in the form of Exhibit
A-2a to the Indenture.
“Class
A-2a Rate”
means
5.11% per annum, computed on the basis of a 360-day year consisting of twelve
30-day months.
“Class
A-2b Notes”
means
the LIBOR + 0.35% Asset Backed Notes, Class A-2b, substantially in the form
of
Exhibit A-2b to the Indenture.
“Class
A-2b Rate”
means
LIBOR + 0.35% per annum, computed on the basis of an actual/360-day
year.
“Class
A-3 Noteholder”
means
the Class A-3a Noteholders and the Class A-3b Noteholders.
“Class
A-3 Notes”
means,
collectively, the Class A-3a Notes and the Class A-3b Notes.
“Class
A-3a Noteholder”
means
the Person in whose name a Class A-3a Note is registered in the Note
Register.
“Class
A-3a Notes”
means
the 5.04% Asset Backed Notes, Class A-3a, substantially in the form of Exhibit
A-3a to the Indenture.
“Class
A-3a Rate”
means
5.04% per annum, computed on the basis of a 360-day year consisting of twelve
30-day months.
“Class
A-3b Notes”
means
the LIBOR + 0.40% Asset Backed Notes, Class A-3b, substantially in the form
of
Exhibit A-3b to the Indenture.
“Class
A-3b Rate”
means
LIBOR + 0.40% per annum, computed on the basis of an actual/360-day
year.
“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 5.21% Asset Backed Notes, Class A-4, substantially in the form of Exhibit
A-4 to the Indenture.
“Class
A-4 Rate”
means
5.21% per annum, computed on the basis of a 360-day year consisting of twelve
30-day months.
“Closing
Date”
means
September 28, 2007.
“CFR”
means
the Code of Federal Regulations.
“Collateral”
has
the
meaning specified in the Granting Clause of the Indenture.
3
“Collection”
means,
with respect to any Receivable and to the extent received by the Servicer after
the Cutoff Date, (a) any monthly payment by or on behalf of the Obligor
thereunder, (b) full or partial prepayment of that Receivable, (c) all
Liquidation Proceeds and (d) any other amounts received by the Servicer
which, in accordance with its 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 (i) any amounts in respect of any
Receivable purchased by the Servicer, the Seller or the Depositor on a prior
Payment Date or (ii) 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
5.01.
“Collection
Period”
means
each fiscal month of the Servicer during the term of this Agreement;
provided,
however,
that
the first Collection Period is the period from and including August 19, 2007
through September 30, 2007. 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.
“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.
“Credit
and Collection Policy”
means
the credit and collection practices, policies and procedures of HMFC from time
to time.
“Cutoff
Date”
means
the close of business on August 18, 2007.
“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 or (b) where the Servicer’s records show that the
Obligor has suffered an Insolvency Event.
4
“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:
(a) if
such
Trust Account Property is an instrument or a certificated security (each as
defined in the UCC), by (i) 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),
(ii) causing such Eligible Institution to maintain (on behalf of the
Indenture Trustee) continuous possession of such instrument or security
certificate, (iii) causing the Eligible Institution to credit such instrument
or
certificated security to the appropriate Eligible Account, (iv) causing the
Eligible Institution to agree to treat all such instruments and certificated
securities as “financial assets” (as defined in the UCC) and (v) 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;
(b) if
such
Trust Account Property is a security entitlement (as defined in the UCC), by
(i)
causing the Eligible Institution then maintaining the applicable Eligible
Account to become the entitlement holder of such security entitlement, (ii)
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
(iii) 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;
(c) if
such
Trust Account Property is an uncertificated security (as defined in the UCC),
by
(i) causing the Eligible Institution then maintaining the applicable Eligible
Account to become the registered owner of such uncertificated security, (ii)
causing such registration to remain effective, (iii) 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 (iv) 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;
(d) if
such
Trust Account Property consists of deposit accounts (as defined in the UCC)
by
either (i) causing the Indenture Trustee to be the customer with respect to
such
deposit accounts or (ii) 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;
5
(e) 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
(f) 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 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
(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;
6
(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); or
(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 (a) is servicing a portfolio of motor vehicle retail
installment sale contracts or motor vehicle installment loans, (b) is legally
qualified and has the capacity to service the Receivables, (c) 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.
7
“Fee
Letter”
means
the letter regarding fees dated September 28, 2007 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.
“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 28, 2007, 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
$201,000,000.00.
“Initial
Class A-2a Note Balance”
means
$120,000,000.00.
“Initial
Class A-2b Note Balance”
means
$79,000,000.00.
“Initial
Class A-3a Note Balance”
means
$210,000,000.00.
“Initial
Class A-3b Note Balance”
means
$71,000,000.00.
“Initial
Class A-4 Note Balance”
means
$177,841,000.00.
“Initial
Interest Rate Swap Agreement”
means
the ISDA Master Agreement, dated as of the Closing Date, between the Initial
Swap Counterparty and the Issuer, the Schedule and the Credit Support Annex
thereto, dated as of the Closing Date and, the Confirmations thereto, each
dated
as of the Closing Date, and entered into pursuant to such ISDA Master Agreement,
as the same may be amended or supplemented from time to time in accordance
with
the terms thereof.
“Initial
Pool Balance”
means,
an amount equal to the aggregate Principal Balance of the Receivables as of
the
Cutoff Date.
“Initial
Swap Counterparty”
means
HSBC Bank USA, National Association, as the swap counterparty under the Initial
Interest Rate Swap Agreement.
“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.
8
“Interest
Distribution Account”
means,
the account designated as such, established and maintained pursuant to Section
5.01(a)(iv).
“Interest
Period”
means,
with respect to the Class A-1 Notes, Class A-2b Notes and Class A-3b 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-2a
Notes, the Class A-3a Notes and the Class A-4 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.
“Interest
Rate Swap Agreement”
means
the Initial Interest Rate Swap Agreement and any Replacement Interest Rate
Swap
Agreement.
“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 2007-A.
“LIBOR”
means,
with respect to any Interest Period, the London interbank offered rate for
deposits in U.S. dollars having a maturity of one month commencing on the
related LIBOR Determination Date which appeared on Reuters Telerate successor
page 3750 as of 11:00 a.m., London time, on such LIBOR Determination Date as
reported by Bloomberg Professional(R) Service or any other page as may replace
that page on Bloomberg Professional(R) Service. If the rates used to determine
LIBOR do not appear on the Bloomberg Professional(R) Service, the rates for
that
day will be determined on the basis of the rates at which deposits in U.S.
dollars, having a maturity of one month and in a principal amount of not less
than U.S. $1,000,000 are offered at approximately 11:00 a.m. London time, on
such LIBOR Determination Date to prime banks in the London interbank market
by
the reference banks. The Indenture Trustee will request the principal London
office of each of such reference banks to provide a quotation of its rate.
If at
least two such quotations are provided, the rate for that day will be the
arithmetic mean to the nearest 1/100,000 of 1.00% (0.0000001), with five
one-millionths of a percentage point rounded upward, of all such quotations.
If
fewer than two such quotations are provided, the rate for that day will be
the
arithmetic mean to the nearest 1/100,000 of 1.00% (0.0000001), with five
one-millionths of a percentage point rounded upward, of the offered per annum
rates that one or more leading banks in New York City, selected by the Indenture
Trustee (after consulting with the Servicer), are quoting as of
approximately 11:00 a.m., New York City time, on such LIBOR Determination Date
to leading European banks for United States dollar deposits for that maturity;
provided,
that if
the banks selected as aforesaid are not quoting as mentioned in this sentence,
LIBOR in effect for the applicable Interest Period will be LIBOR in effect
for
the previous Interest Period. The reference banks are the four major banks
in
the London interbank market selected by the Indenture Trustee (after
consultation with the Servicer).
9
“LIBOR
Determination Date”
means
the second London Business Day prior to the closing date with respect to the
first payment date and, as to each subsequent payment date, the second London
Business Day prior to the immediately preceding payment date.
“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: (a) the related Financed Vehicle has been repossessed and liquidated,
(b) the related Financed Vehicle has been repossessed for 90 days or more and
has not yet been liquidated, (c) the end of the Collection Period in which
the
Receivable becomes more than 120 days past due, or (d) 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 auction, 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.
“London
Business Day”
means
any day other than a Saturday, a Sunday or a day on which a commercial banking
institution in London, England is authorized or obligated by law or executive
order to remain closed.
“Moody’s”
means
Xxxxx’x Investors Service, Inc., and its successors.
“Net
Swap Payment”
means
for the Interest Rate Swap Agreement, the net amount with respect to regularly
scheduled payments, if any, owed by the Issuer to the Swap Counterparty on
any
Payment Date, including prior unpaid Net Swap Payments and any interest accrued
thereon, under such Interest Rate Swap Agreement; provided,
that
“Net
Swap Payments”
do
not
include Swap Termination Payments.
“Net
Swap Receipts”
means,
for the Interest Rate Swap Agreement, the net amounts owed by the Swap
Counterparty to the Issuer, if any, on any Swap Payment Date, excluding any
Swap
Termination Payments.
“Notes”
means
the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class
A-4
Notes.
10
“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-2a Note Balance,
(iii) the Initial Class A-2b Note Balance, (iv) the Initial Class A-3a
Note Balance, (v) the Initial Class A-3b Note Balance and (vi) the
Initial Class A-4 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
5.01(a)(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 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”
means
the Class A-1 Noteholders, the Class A-2 Noteholders, Class A-3 Noteholders
and
the Class A-4 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 Issuer, Seller or the Servicer, which counsel shall be reasonably 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.
“Other
Assets”
means
any assets (or interests therein) (other than the Trust Estate) conveyed or
purported to be conveyed by the Depositor to another Person or Persons other
than the Issuer, whether by way of a sale, capital contribution or by virtue
of
the granting of a lien.
“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, 2007.
11
“Person”
means
any individual, corporation, limited liability company, estate, partnership,
joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency
or
political subdivision thereof.
“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.
“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 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
5.01(a)(iv).
“Principal
Distribution Amount”
means,
with respect to any Payment Date, an amount no less than zero equal to
the
excess, if any, of (a) the aggregate outstanding principal amount of the Notes
immediately preceding such Payment Date over (b)(i) the Adjusted Pool Balance
as
of the last day of the related Collection Period minus
(ii) the
Target Overcollateralization Amount with respect to such Payment Date;
provided,
however,
that
the Principal Distribution Amount shall not exceed the sum of the aggregate
outstanding principal amount of all of the Notes on such Payment
Date.
“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 3.03 of this
Agreement or Section 7.02 of the Receivables Purchase
Agreement.
“Rating
Agency”
means
Fitch, Xxxxx’x 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.
12
“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
(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 28, 2007, 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 (and not otherwise reimbursed)
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.
13
“Replacement
Interest Rate Swap Agreement”
means
any ISDA Master Agreement, dated after the Closing Date, between the Replacement
Swap Counterparty and the Issuer, the Schedule and Credit Support Annex thereto,
dated after the Closing Date, and the Confirmations thereto, each dated after
the Closing Date, and entered into pursuant to such ISDA Master Agreement,
and
pursuant to the conditions set forth in the Initial Interest Rate Swap
Agreement, as the same may be amended or supplemented from time to time in
accordance with the terms thereof.
“Replacement
Swap Counterparty”
means,
with respect to any Swap Counterparty, any Replacement Swap Counterparty under
a
Replacement Interest Rate Swap Agreement that satisfies the conditions set
forth
in the Interest Rate Swap Agreement.
“Reserve
Account”
means
the account designated as such, established by the Issuer and maintained by
the
Indenture Trustee pursuant to Section 5.01(a)(iii).
“Reserve
Account Deposit”
means
$4,731,970.89.
“Reserve
Account Required Amount”
means
with respect to any Payment Date, an amount equal to 0.50% 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.
“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.
“Securities”
means
the Notes and the Certificates.
“Securities
Account Control Agreement”
means
the Securities Account Control Agreement dated as of September 28, 2007 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.
14
“Seller”
means
HMFC and its successors in interest as seller of the Receivables to the
Depositor pursuant to the Receivables Purchase Agreement.
“Senior
Swap Termination Payment”
means
any Swap Termination Payment owed by the Issuer to the Swap Counterparty under
an Interest Rate Swap Agreement arising due to (1) the failure of the Issuer
to
make Net Swap Payments due under that Interest Rate Swap Agreement, (2)
illegality of performance under the Interest Rate Swap Agreement, (3) the
occurrence of bankruptcy or insolvency events with respect to the Issuer,
(4) an
amendment and/or supplement is made to the Indenture without the prior written
consent of a Swap Counterparty if such amendment and/or supplement would
materially and adversely affect such Swap Counterparty's interests under the
related Interest Rate Swap Agreement and such consent is required under the
Indenture or (5) any liquidation of the Collateral occurs following an Event
of
Default under the Indenture or the Notes are otherwise redeemed or prepaid
(other than in connection with an optional purchase of Receivables pursuant
to
Section 9.01 of this Sale and Servicing 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 aggregate
Principal Balance of the Receivables as of the first day of the related
Collection Period.
“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 (a) the applicable
APR, (b) 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 (c)
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 XxXxxx-Xxxx
Companies, Inc., and its successors.
15
“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
|
October
15, 2008
|
|
Class
A-2a Notes
|
January
15, 2010
|
|
Class
A-2b Notes
|
January
15, 2010
|
|
Class
A-3a Notes
|
January
17, 2012
|
|
Class
A-3b Notes
|
January
17, 2012
|
|
Class
A-4 Notes
|
March
17, 2014
|
“Subordinated
Swap Termination Payment”
means
any Swap Termination Payment owed by the Issuer to the Swap Counterparty under
an Interest Rate Swap Agreement other than a Senior Swap Termination
Payment.
“Swap
Collateral Account”
means
a
single, segregated trust account in the name of the Indenture Trustee, which
shall be designated as the “Swap Collateral Account” which shall be held in
trust for the benefit of the Noteholders established pursuant to Section 5.09(e)
of this Agreement.
“Swap
Counterparty”
means
the Initial Swap Counterparty and any Replacement Swap
Counterparty.
“Swap
Payment Date”
means
the date on which Net Swap Receipts or Net Swap Payments, as applicable, are
made pursuant to the Interest Rate Swap Agreement.
“Swap
Replacement Proceeds”
means
any amounts received from a Replacement Swap Counterparty in consideration
for
entering into a Replacement Interest Rate Swap Agreement for a terminated
Interest Rate Swap Agreement.
“Swap
Termination Payment”
means
any payment due to the Swap Counterparty by the Issuer or to the Issuer by
the
Swap Counterparty, including interest that may accrue thereon, under the
Interest Rate Swap Agreement due to a termination of the Interest Rate Swap
Agreement due to an “event of default” or “termination event” under the Interest
Rate Swap Agreement.
“Swap
Termination Payment Account”
means
an Eligible Account held in the United States in the name of the Indenture
Trustee which shall be held in trust for the benefit of the Noteholders and
the
Swap Counterparty pursuant to Section 5.09(b) of this Agreement.
16
“Target
Overcollateralization Amount”
means,
with respect to any Payment Date, the greater of (a) 22.50% 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.
“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 Swap Collateral Account, the Note Distribution
Account and the Reserve Account.
“Trust
Agreement”
means
the Amended and Restated Trust Agreement, dated as of September 28, 2007,
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 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.
17
“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.
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.
18
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
$857,492,656.70, 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:
(a) the
Receivables and all moneys received thereon after the Cutoff Date;
(b) the
security interests in the Financed Vehicles and any accessions thereto granted
by Obligors pursuant to the Receivables and any other interest of the Depositor
in such Financed Vehicles;
(c) any
Liquidation Proceeds and any other proceeds with respect to the Receivables
from
claims on any physical damage, credit life or disability insurance policies
covering the Financed Vehicles or the related Obligors, including any vendor’s
single interest or other collateral protection insurance policy;
(d) any
property that shall have secured a Receivable and shall have been acquired
by or
on behalf of the Depositor, the Servicer or the Trust;
(e) all
documents and other items contained in the Receivable Files;
(f) all
of
the Depositor’s rights (but not its obligations) under the Receivables Purchase
Agreement;
(g) 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);
(h) any
proceeds from any Receivable repurchased by a Dealer pursuant to a Dealer
Agreement; and
(i) the
proceeds of any and all of the foregoing (collectively, with the assets listed
in clauses (a) through (h) above, the “Conveyed
Assets”).
The
Depositor and the Issuer agree that the purchase price for the Conveyed Assets
sold by the Depositor to the Issuer represents reasonably equivalent value
for
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
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.
19
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 respective dates
set forth therein, 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.
20
(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, Société Générale, ABN AMRO Bank N.V.,
Barclays Bank PLC, Park Avenue Receivables Company, LLC and JPMorgan Chase
Bank, N.A. 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.
Upon
discovery by any party hereto of a breach of any of the representations and
warranties set forth in part (b) of Exhibit
A at
the
time such representations and warranties were made which materially and
adversely affects the interests of the Issuer or the Noteholders, the party
discovering such breach shall give prompt written notice thereof to the other
parties hereto; provided
that the
failure to give such notice shall not affect any obligation of the Seller
hereunder. If the Seller does not correct or cure such breach prior to the
end
of the Collection Period which includes the 60th day (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
in
accordance with Section
5.04
on such
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 (or to enforce the obligations
of
Seller under the Receivables Purchase Agreement 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
3.03.
21
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 servicing practices,
using the degree of skill and attention that the Servicer exercises with respect
to all other comparable motor vehicle receivables that it services for itself
and others. 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 and
in
a manner consistent with its customary practices. 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 and subject to
Section 4.02, 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. 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. 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.
22
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.
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) Subject
to Section
4.06,
the
Servicer may grant extensions, rebates, deferrals, amendments, modifications
or
adjustments on a Receivable in accordance with its customary servicing
practices; provided,
however,
that if
the Servicer (i) extends the date for final payment by the Obligor of any
Receivable beyond the last day of the Collection Period prior to the Class
A-4
Maturity Date or (ii) reduces the APR or unpaid principal balance with respect
to any Receivable other than as required by applicable law, it will promptly
purchase such Receivable in the manner provided in 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
reasonable 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;
provided,
however,
that
the Servicer may elect not to repossess a Financed Vehicle if in its good faith
judgment it determines that the proceeds ultimately recoverable with respect
to
such Receivable would not be greater than the expense of such repossession.
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, 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.
23
Section
4.04 [Reserved].
Section
4.05 Maintenance
of Security Interests in Financed Vehicles.
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.
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):
(a) Liens
in Force.
The
Servicer will not release the Financed Vehicle securing any Receivable from
the
security interest granted by such Receivable in whole or in part except (i)
in
the event of payment in full by or on behalf of the Obligor thereunder or
payment in full less a deficiency which the Servicer would not attempt to
collect in accordance with its customary servicing practices, (ii) in connection
with repossession and sale of the Financed Vehicle or (iii) as may be required
by an insurer in order to receive proceeds from any Insurance Policy covering
such Financed Vehicle;
(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 (i) not extend the date for final payment by the Obligor of
any
Receivable beyond the last day of the Collection Period prior to the Class
A-4
Maturity Date; or (ii) reduce the APR or unpaid principal balance with respect
to any Receivable other than as required by applicable law.
Section
4.07 Purchase
of Receivables Upon Breach.
Upon
discovery by any party hereto of a breach of any of the covenants set forth
in
Sections
4.02,
4.03,
4.05
or
4.06
which
materially and adversely affects the interests of the Issuer or the Noteholders,
the party discovering such breach shall give prompt written notice thereof
to
the other parties hereto; provided
that the
failure to give such notice shall not affect any obligation of the Servicer
under this Section 4.07. If the Servicer does not correct or cure such breach
prior to the end of the Collection Period which includes the 60th day (or,
if
the Servicer elects, an earlier date) after the date that the Servicer became
aware or was notified of such breach, then the Servicer 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 Servicer shall be at a price equal to the Purchased Amount. In
consideration for such repurchase, the Servicer 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 in accordance with Section 5.04 on such
Payment Date. Upon payment of such Purchased Amount by the Servicer, 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 Servicer or
its
designee any Receivable repurchased pursuant hereto. It is understood and agreed
that the obligation of the Servicer to purchase any Receivable as described
above shall constitute the sole remedy respecting such breach available to
the
Issuer, the Swap Counterparty, the Owner Trustee, the Certificateholders, the
Noteholders and the Indenture Trustee.
24
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. In addition, the Servicer will be entitled to retain
all
late fees, extension fees, non-sufficient funds charges and any and all other
administrative fees and expenses or similar charges allowed by applicable law
with respect to any Receivable. The Servicer also will be entitled to receive
investment earnings (net of investment losses and expenses) on funds deposited
in the Collection Account during each Collection Period. 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.
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 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 Servicer Termination
Events have occurred. If any defaults have occurred, such Servicer’s Certificate
will provide an explanation of such Servicer Termination Events. 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). At the sole option of the Servicer, each
Servicer’s Certificate may be delivered in electronic or hard copy format.
25
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, 2008),
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, 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 Compliance
with Regulation AB.
The
Servicer agrees to perform all duties and obligations applicable to or required
of the Issuer set forth in Appendix A attached hereto and made a part hereof
in
all respects and makes the representations and warranties therein applicable
to
it.
Section
4.12 Access
to Certain Documentation and Information Regarding Receivables.
The
Servicer shall provide to representatives of the Owner Trustee, the Indenture
Trustee and the Certificateholders reasonable access to the documentation
regarding the Receivables and the related Trust property. The Servicer will
provide such access to any Noteholder only in such cases where the Servicer
shall be required by applicable statutes or regulations to permit a Noteholder
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.
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.
For so
long as the Issuer is subject to the reporting requirements under the Securities
Exchange Act of 1934, as amended, 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,
2008), 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 (a)
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
(b) 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.
26
Section
4.15 Reports
to the Commission.
The
Servicer shall, or shall cause the Depositor to, 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 Depositor 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
(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.
27
ARTICLE
V.
DISTRIBUTIONS;
STATEMENTS TO SECURITYHOLDERS
(a) (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.
(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
so that such funds will be available on 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 Swap Termination Payment Account (to the extent such
account is established under Section 5.09(b))
and 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 Investments, 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 Swap Termination Payment Account and the Collection Account shall be
invested in Eligible Investments that will mature so that such funds will be
available on the next Payment Date. Investment earnings on funds deposited
in
the Swap Termination Payment Account and 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.
28
(b) (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 the Trust Accounts and
in
all proceeds thereof. 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 ten (10) 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. Neither the Servicer nor the Indenture Trustee shall in any way 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 and the Certificate Deposit Account for the purpose of withdrawing
any
amounts deposited in error into such accounts.
Section
5.02 Application
of Collections.
ii) 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 one Business Day prior to the related Payment Date. The
“Monthly
Remittance Condition”
shall
be deemed to be satisfied if (i) HMFC or one of its Affiliates is the Servicer,
(ii) no Servicer Termination Event has occurred and is continuing and (iii)
HMFC
has a short-term debt rating of at least “Prime-1” from Xxxxx’x, “A-1” from
Standard &
Poor’s
and “F-1” from Fitch. Notwithstanding the foregoing, the
Servicer
may remit Collections to the Collection Account on any other alternate
remittance schedule (but not later than the Business Day prior to the related
Payment Date) if
the
Rating Agency Condition is satisfied with respect to such alternate remittance
schedule. Pending deposit into the Collection Account, Collections may be
commingled and used by the Servicer at its own risk and are not required to
be
segregated from its own funds.
29
(b) The
Indenture Trustee will promptly, on the day of receipt, deposit into the
Collection Account all Net Swap Receipts received by it on behalf of the Issuer
under the Interest Rate Swap Agreement in immediately available
funds.
Section
5.03 Property
of the Trust.
All
payments and other proceeds of any type and from any source on or with respect
to the Receivables shall be the property of the Trust, subject to the Lien
of
the Indenture and the rights of the Indenture Trustee thereunder.
Section
5.04 Purchased
Amounts.
The
Servicer or the Seller shall deposit or cause to be deposited in the Collection
Account, on the Business Day preceding each Payment 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 to the extent of any Reserve Account Withdrawal Amount 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 Swap Counterparty, the Net Swap Payment, if any, for such Payment
Date;
(iii)
pro
rata, (A) to the Swap Counterparty, any Senior Swap Termination Payments for
such Payment Date, and (B) to the Interest Distribution Account, (a) the
aggregate amount of interest accrued for the related Interest Period on each
of
the 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 Noteholders on the preceding Payment Date; and (b) the excess, if any,
of
the amount of interest payable to the Noteholders on those prior Payment Dates
over the amounts actually paid to the Noteholders on those prior Payment Dates,
plus interest on any such shortfall at their respective interest rates to the
extent permitted by law;
(iv)
to
the Principal Distribution Account, the Principal Distribution
Amount;
30
(v)
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;
(vi)
to
the Swap Counterparty, any Subordinated Swap Termination Payment for such
Payment Date;
(vii)
to
the Indenture Trustee and the Owner Trustee, any reimbursements and expenses,
in
each case to the extent such 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
(viii)
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
Agreement) and subsequent distribution to the Certificateholder pursuant to
Section 5.01 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 Certificateholder as per the monthly
Servicer’s Certificate. Upon any such distribution to the Certificateholder, 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 (x), 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.
31
(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 the Swap Counterparty and each Rating Agency) for the Indenture Trustee
to
make available 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.
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 xxx.xx.xxxxxxxxxx.xxx). 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 5.01 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.
Section
5.09 Interest
Rate Swap Agreement.
(a) The
Issuer shall enter into the Initial Interest Rate Swap Agreement with the
Initial Swap Counterparty. Subject to the requirements of this
Section 5.09, the Issuer may from time to time enter into one or more
Replacement Interest Rate Swap Agreements in the event that the Initial Interest
Rate Swap Agreement is terminated due to any “Termination Event” or “Event of
Default” (each as defined in the Initial Interest Rate Swap Agreement) prior to
its scheduled expiration and in accordance with the terms of such Interest
Rate
Swap Agreement. Other than any Replacement Interest Rate Swap Agreement entered
into pursuant to this Section 5.09(a), the Issuer may not enter into any
additional interest rate swap agreements.
32
(b) In
the
event of any early termination of any Interest Rate Swap Agreement, (i) upon
written direction and notification of such early termination, the Indenture
Trustee shall establish the Swap Termination Payment Account, (ii) any Swap
Termination Payments received from the Swap Counterparty will be remitted to
the
Swap Termination Payment Account and (iii) any Swap Replacement Proceeds
received from a Replacement Swap Counterparty will be remitted directly to
the
Swap Counterparty; provided,
that
any such remittance to the Swap Counterparty shall not exceed the amounts,
if
any, owed to the Swap Counterparty under the Interest Rate Swap Agreement;
provided,
further
that the
Swap Counterparty shall only receive Swap Replacement Proceeds if all Swap
Termination Payments due from the Swap Counterparty to the Issuer have been
paid
in full and if such amounts have not been paid in full then the amount of Swap
Replacement Proceeds necessary to make up any deficiency shall be remitted
to
the Swap Termination Payment Account.
(c) The
Issuer shall promptly, following the early termination of any Initial Interest
Rate Swap Agreement due to an “Event of Default” or “Termination Event” (each as
defined in the Initial Interest Rate Swap Agreement) and in accordance with
the
terms of such Interest Rate Swap Agreement, enter into a Replacement Interest
Rate Swap Agreement to the extent possible and practicable through application
of funds available in the Swap Termination Payment Account unless entering
into
such Replacement Interest Rate Swap Agreement will cause the Rating Agency
Condition not to be satisfied.
(d) To
the
extent that (i) the funds available in the Swap Termination Payment Account
exceed the costs of entering into a Replacement Interest Rate Swap Agreement
or
(ii) the Issuer determines not to replace the Initial Interest Rate Swap
Agreement and the Rating Agency Condition is met with respect to such
determination, the amounts in the Swap Termination Payment Account (other than
funds used to pay the costs of entering into a Replacement Interest Rate Swap
Agreement, if applicable) shall be included in Available Amounts and allocated
in accordance with the order of priority specified in Section 5.05(b) on the
following Payment Date. In any other situation, amounts on deposit in the Swap
Termination Payment Account at any time shall be invested pursuant to Section
5.01(a)(vi) and on each Payment Date after the creation of a Swap Termination
Payment Account, the funds therein shall be used to cover any shortfalls in
the
amounts payable under clauses (i) through (vi) under Section 5.05(b),
provided,
that in
no event will the amount withdrawn from the Swap Termination Payment Account
on
such Payment Date exceed the amount of Net Swap Receipts that would have been
required to be paid on such Payment Date under the terminated Interest Rate
Swap
Transaction had there been no termination of such transaction. Any amounts
remaining in the Swap Termination Payment Account after payment in full of
the
Class A-2b Notes and the Class A-3b Notes shall be included in Available Amounts
and allocated in accordance with the order of priority specified in Section
5.05(b) on the following Payment Date.
(e) If
the
Swap Counterparty is required to post collateral under the terms of the Interest
Rate Swap Agreement, upon written direction and notification of such requirement
the Indenture Trustee shall establish the Swap Collateral Account (the
“Swap
Collateral Account”)
over
which the Indenture Trustee shall have exclusive control and the sole right
of
withdrawal, and in which no Person other than the Indenture Trustee, the Swap
Counterparty and the Noteholders shall have any legal or beneficial interest.
The Indenture Trustee shall deposit all collateral received from the Swap
Counterparty under the Interest Rate Swap Agreement into the Swap Collateral
Account. Any and all funds at any time on deposit in, or otherwise to the credit
of, the Swap Collateral Account shall be held in trust by the Indenture Trustee
for the benefit of the Swap Counterparty and the Noteholders. The only permitted
withdrawal from or application of funds on deposit in, or otherwise to the
credit of, the Swap Collateral Account shall be (i) for application to
obligations of the Swap Counterparty to the Issuer under the Interest Rate
Swap
Agreement in accordance with the terms of the Interest Rate Swap Agreement
or
(ii) to return collateral to the Swap Counterparty when and as required by
the
Interest Rate Swap Agreement.
33
(f) If
at any
time the Interest Rate Swap Agreement becomes subject to early termination
due
to the occurrence of an “Event of Default” or “Termination Event” (as defined in
the Interest Rate Swap Agreement), the Issuer and the Indenture Trustee shall
use reasonable efforts (following the expiration of any applicable grace period)
to enforce the rights of the Issuer thereunder as may be permitted by the terms
of the Interest Rate Swap Agreement and consistent with the terms hereof. To
the
extent not fully paid from Swap Replacement Proceeds, any Swap Termination
Payment owed by the Issuer to the Swap Counterparty under the Interest Rate
Swap
Agreement shall be payable to the Swap Counterparty in installments made on
each
following Payment Date until paid in full in accordance with the order of
priority specified in Section 5.05(b). To the extent that the Swap Replacement
Proceeds exceed any such Swap Termination Payments (or if there are no Swap
Termination Payments due to the Swap Counterparty), the Swap Replacement
Proceeds in excess of such Swap Termination Payments, if any, shall be included
in Available Amounts and allocated and applied in accordance with the order
of
priority specified in Section 5.05(b) on the following Payment
Date.
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 ability to transfer the Receivables to the Trust pursuant to
this Agreement or the validity or enforceability of the
Receivables.
34
(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. 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.
(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 would 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.
35
(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, 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 (i) UCC filings and
(ii)
consents,
licenses, approvals, registrations, authorizations or declarations which,
if
not obtained or made, would not have a material adverse effect 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.
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 under the laws of the jurisdiction of its
incorporation and will obtain and preserve its qualification to do business
in
each jurisdiction in which the failure to be so qualified would materially
and
adversely affect the validity and enforceability of this Agreement, the Basic
Documents, the proper administration of this Agreement or 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.
(a) 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).
(b) The
Issuer, the Servicer, the Indenture Trustee and the Owner Trustee, by entering
into or accepting this Agreement, acknowledge and agree that they have no right,
title or interest in or to the Other Assets of the Depositor. To the extent
that, notwithstanding the agreements and provisions contained in the preceding
sentence, the Issuer, the Servicer, the Indenture Trustee or the Owner Trustee
either (i) asserts an interest or claim to, or benefit from, Other Assets,
or
(ii) is deemed to have any such interest, claim to, or benefit in or from Other
Assets, whether by operation of law, legal process, pursuant to applicable
provisions of insolvency laws or otherwise (including by virtue of Section
1111(b) of the Bankruptcy Code or any successor provision having similar effect
under the Bankruptcy Code), then the Issuer, the Servicer, the Indenture Trustee
or the Owner Trustee further acknowledges and agrees that any such interest,
claim or benefit in or from Other Assets is and will be expressly subordinated
to the indefeasible payment in full, which, under the terms of the relevant
documents relating to the securitization or conveyance of such Other Assets,
are
entitled to be paid from, entitled to the benefits of, or otherwise secured
by
such Other Assets (whether or not any such entitlement or security interest
is
legally perfected or otherwise entitled to a priority of distributions or
application under applicable law, including insolvency laws, and whether or
not
asserted against the Depositor), including the payment of post-petition interest
on such other obligations and liabilities. This subordination agreement will
be
deemed a subordination agreement within the meaning of Section 510(a) of the
Bankruptcy Code. The Issuer, the Servicer, the Indenture Trustee and the Owner
Trustee each further acknowledges and agrees that no adequate remedy at law
exists for a breach of this Section
6.03(b)
and the
terms of this Section
6.03(b)
may be
enforced by an action for specific performance. The provisions of this
Section
6.03(b)
will be
for the third party benefit of those entitled to rely thereon and will survive
the termination of this Agreement.
36
Section
6.04 Merger
or Consolidation of, or Assumption of the Obligations of,
Depositor.
Any
Person (a) into which the Depositor may be merged or consolidated,
(b) resulting from any merger, conversion, or consolidation to which the
Depositor is a party, (c) succeeding to the business of the Depositor, or
(d) more than 50% of the voting stock or voting power and 50% or more of the
economic equity of which is owned directly or indirectly by any affiliate of
HMFC, which Person in any of the foregoing cases executes an agreement of
assumption to perform every obligation of the Depositor under this Agreement,
will be the successor to the Depositor under this Agreement without the
execution or filing of any document or any further act on the part of any of
the
parties to this Agreement. Notwithstanding the foregoing, if the Depositor
enters into any of the foregoing transactions and is not the surviving entity,
(x) the Depositor shall deliver to the Indenture Trustee an Officer’s
Certificate and an Opinion of Counsel each stating that such merger, conversion,
consolidation or succession and such agreement of assumption comply with this
Section
6.04 and
that
all conditions precedent, if any, provided for in this Agreement relating to
such transaction have been complied with and (y) the Depositor will deliver
to the Indenture Trustee an Opinion of Counsel either (A) stating that, in
the
opinion of such counsel, all financing statements and continuation statements
and amendments thereto have been executed and filed that are necessary fully
to
preserve and protect the interest of the Issuer and the Indenture Trustee,
respectively, in the Receivables, and reciting the details of such filings,
or
(B) stating that, in the opinion of such counsel, no such action is necessary
to
preserve and protect such interest. It shall be a condition precedent to any
of
the foregoing transactions that (1) each Rating Agency will be notified of
any
merger, consolidation or succession pursuant to this Section 6.04
and each
Rating Agency shall notify the Indenture Trustee in writing that such merger,
consolidation or succession shall not result in a reduction, withdrawal or
downgrade of the then-current rating of each class of Notes and (2) the
organizational documents of the surviving entity shall contain bankruptcy
remoteness protections that are not materially less favorable to the Noteholders
than those contained in the Certificate of Incorporation and Bylaws of the
Depositor.
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.
37
(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 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. 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
Servicer’s ability to perform its obligations under the Basic
Documents.
(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 would 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.
38
(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,
other than (i) UCC filings and
(ii) consents,
licenses, approvals, registrations, authorizations or declarations which,
if
not obtained or made, would not have a material adverse effect on the
enforceability or collectibility of the Receivables or would not materially
and
adversely affect the ability of the Servicer to perform its obligations under
the Basic Documents.
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 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 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 or by failure to perform its obligations under this
Agreement or by reason of reckless disregard of its obligations and duties
under
this Agreement.
(d) The
Servicer shall compensate and indemnify the Indenture Trustee to the extent
provided in Section 6.07 of the Indenture.
39
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 (a) into
which the Servicer may be merged or consolidated, (b) resulting from any merger
or consolidation to which the Servicer shall be a party, (c) that acquires
by
conveyance, transfer or lease substantially all of the assets of the Servicer
or
(d) 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 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 (a)
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,
(b)
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 and that all conditions precedent provided for in this
Agreement relating to such transaction have been complied with and (c) the
Servicer shall have delivered to the Owner Trustee and the Indenture Trustee
an
Opinion of Counsel stating that either (i) 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 (ii) no such action shall be necessary to preserve
and protect such interest.
40
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, the Swap Counterparty 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 or bad faith 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 Delegation
of Duties.
The
Servicer may, at any time without notice or consent, delegate (a) any or all
of
its duties (including, without limitation, its duties as custodian) under the
Basic Documents to any of its Affiliates or (b) specific duties to
sub-contractors who are in the business of performing such duties; provided, however,
that
Servicer shall give the Rating Agencies then rating the Notes at least 10
Business Days’ written notice prior to any delegation that the Servicer
reasonably believes to be of a material aspect of the Servicer’s servicing
duties. The fees and expenses of any subservicer shall be as agreed between
the
Servicer and such subservicer from time to time, and none of the Owner Trustee,
the Indenture Trustee, the Issuer or the Securityholders shall have any
responsibility thereof.
Section
7.06 Servicer
Not to Resign.
(a) Subject
to the provisions of Section 7.03, 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.
41
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
Notes; or
(c) The
occurrence of an Insolvency Event with respect to the Servicer.
provided,
however,
that a
delay or failure of performance referred to under clauses (a) above for a period
of 10 days or clause (b) above for a period of 30 days will not constitute
a
Servicer Termination Event if such delay or failure was caused by force majeure
or other similar occurrence.
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 Notes may, by notice
given in writing to the Servicer (and to the Indenture Trustee, the Owner
Trustee, the Swap Counterparty 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.
42
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 Notes 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. In the event that the Indenture Trustee and the Noteholders
are unable to appoint a successor within thirty (30) days of the date of the
related notice of termination, the Indenture Trustee may petition a court of
competent jurisdiction to appoint a successor Servicer. 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 Notes 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
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.
43
Section
8.05 Waiver
of Past Defaults.
The
Noteholders evidencing more than 50% of the voting interests of the Notes 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 plus all amounts owing to the Swap
Counterparty as of the related Determination Date and shall succeed to all
interests in and to the Receivables. The exercise of such option shall effect
a
redemption, 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.
ARTICLE
X.
MISCELLANEOUS
Section
10.01 Amendment.
(a) This
Agreement may be amended by the Depositor and the Servicer, but without the
consent of the Indenture Trustee, the Owner Trustee, the Swap Counterparty,
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 correcting
any inconsistency with the Prospectus dated September 18, 2007 or the Prospectus
Supplement dated September 21, 2007, 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 materially and adversely affect the interests of any
Noteholder or Certificateholder, and the Indenture Trustee shall have received
notification from each Rating Agency that such action will not result in a
reduction, withdrawal or downgrade of the then-current rating of each class
of
Notes; provided,
further,
that
such amendment shall not materially and adversely affect the rights or
obligations of the Swap Counterparty under this Agreement unless the Swap
Counterparty shall have consented in writing to such amendment.
44
(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) reduce the interest rate or principal amount of
any Note or delay the Stated Maturity Date of any Note without the consent
of
the Holder of such Note, (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 or (iii) materially and adversely affect the rights or obligations
of the Swap Counterparty under this Agreement unless the Swap Counterparty
shall
have consented in writing to such amendment.
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 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.
45
(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.
46
(i) Upon
request, the Servicer shall deliver to the Owner Trustee and the Indenture
Trustee:
(i) 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 (A)
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
(B) no such action shall be necessary to preserve and protect such interest;
and
(ii) 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 (A) 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 (B) no such action shall be necessary to preserve
and
protect such interest.
(j) Restrictions
on Liens.
The
Servicer shall not (i) 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 (ii) 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.
Each
Opinion of Counsel referred to in clause (A) or (B) 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 (or with respect to any Rating Agency, electronically delivered),
and
shall be deemed to have been duly given upon receipt (a) in the case of the
Depositor, to 00000 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxxxx 00000,
Attention: Vice President and Secretary, with a copy to General Counsel;
(b) in the case of the Servicer and HMFC, to 00000 Xxxxxxx Xxxxxx, Xxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000, 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 Xxxxx’x, to
00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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, via electronic delivery to Xxxxxxxx_xxxxxxx@xxxxx.xxx or at the
following address: 00 Xxxxx Xxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 10041,
Attention: ABS Surveillance Department; and (g) in the case of Fitch, to Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; or, as to each of the foregoing,
at such other address as shall be designated by written notice to the other
parties.
47
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.
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.
48
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 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.
Section
10.13 Limitation
of Rights.
All of
the rights of the Swap Counterparty in, to and under this Agreement (including,
but not limited to, all of the Swap Counterparty’s rights as a third party
beneficiary of this Agreement and all of the Swap Counterparty’s rights to
receive notice of any action hereunder and to give or withhold consent to any
action hereunder) shall terminate upon the termination of the Interest Rate
Swap
Agreement in accordance with the terms thereof and the payment in full of all
amounts owing to the Swap Counterparty under such Interest Rate Swap
Agreement.
[SIGNATURE
PAGE FOLLOWS]
49
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 2007-A | ||
By: |
WILMINGTON
TRUST COMPANY,
not
in its individual capacity
but
solely as Owner Trustee
|
|
|
|
|
By: | /s/ J. Xxxxxxxxxxx Xxxxxx | |
Name: J. Xxxxxxxxxxx Xxxxxx |
||
Title: Financial Services Officer |
S-1
HYUNDAI
ABS FUNDING CORPORATION,
as
Depositor
|
||
|
|
|
By: | /s/ Min Xxx Xxxxx Park | |
Name: Min Xxx Xxxxx Park |
||
Title: Vice President and Secretary |
S-2
HYUNDAI
MOTOR FINANCE COMPANY,
as
Servicer and Seller
|
||
|
|
|
By: | /s/ Xxx Xxxx Ko | |
Name: Xxx Xxxx Ko |
||
Title: Treasurer |
S-3
CITIBANK,
N.A.,
not
in its individual capacity
but
solely as Indenture Trustee
|
||
|
|
|
By: | /s/ Xxxxx Xxxxxxxx | |
Name: Xxxxx Xxxxxxxx |
||
Title: Vice President |
S-4
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 28, 2007 (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 Closing 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.
Exhibit
A-1
(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 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.
(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 00000 Xxxxxxx Xxxxxx,
Xxxxxxxx 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 (i) UCC filings and
(ii) consents,
licenses, approvals, registrations, authorizations or declarations which,
if
not obtained or made, would not have a material adverse effect 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.
Exhibit
A-2
(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)
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.
(xii)
No
Notice.
The
Seller represents and warrants that it acquired title to the Receivables in
good
faith, without notice of any adverse claim.
(xiii)
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 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 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.
Exhibit
A-3
(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.
(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
Closing 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.
Exhibit
A-4
(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.
Exhibit
A-5
(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.
(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 January 19,
2010.
Exhibit
A-6
(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.
(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.
Exhibit
A-7
(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 related Receivable.
(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 7.833%.
(xxxvi)
Remaining
Term.
Each
Receivable has a remaining term of at least 4 months and no more than 72
months.
(xxxvii)
Original
Term.
The
weighted average original term for the Receivables is at least 63.67
months.
(xxxviii)
Remaining
Balance.
Each
Receivable has a remaining balance of at least $2,004.65 and not greater than
$49,261.30.
(xxxix)
New
Vehicles.
At
least 96.14% 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.
(xlvi)
[Reserved].
Exhibit
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)
[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
$966,593,567.98.
Exhibit
A-9
EXHIBIT
B
Form
of
Record Date Statement
Hyundai
Auto Receivables Trust 2007-A
Monthly
Servicing Report
|
|||||
Collection
Period
|
[_____]
|
||||
1
Month LIBOR
|
[_____]
|
||||
Distribution
Date
|
[_____]
|
||||
Transaction
Month
|
[_____]
|
||||
30/360
Days
|
[_____]
|
||||
Actual/360
Days
|
[_____]
|
I.
ORIGINAL DEAL PARAMETERS
|
|||||||||
Cut
off Date:
|
August
18, 2007
|
||||||||
Closing
Date:
|
September
28, 2007
|
Dollars
|
Units
|
WAC
|
WAM
|
||||||||||
Original
Pool Balance:
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
Dollar
Amount
|
%
of Pool
|
Spread
|
Note
Rate
|
Final
Payment Date
|
||||||||||||
Class
A-1 Notes Fixed
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
|||||||
Class
A-2a Notes Fixed
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
|||||||
Class
A-2b Notes Floater
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
|||||
Class
A-3a Notes Fixed
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
|||||||
Class
A-3b Notes Floater
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
|||||
Class
A-4 Notes Fixed
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
|||||||
Total
Securities
|
$
|
[_____________
|
]
|
[_____
|
]
|
|||||||||||
Overcollateralization
|
$
|
[_____________
|
]
|
[_____
|
]
|
|||||||||||
YSOA
|
$
|
[_____________
|
]
|
[_____
|
]
|
|||||||||||
Total
Original Pool Balance
|
$
|
[_____________
|
]
|
[_____
|
]
|
II.
POOL BALANCE AND PORTFOLIO
INFORMATION
|
Beginning
of Period
|
Ending
of Period
|
|||||||||||||||
Balance
|
Pool
Factor
|
Balance
|
Pool
Factor
|
Change
|
||||||||||||
Class
A-1 Notes
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
|||||
Class
A-2a Notes
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
|||||
Class
A-2b Notes
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
|||||
Class
A-3a Notes
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
|||||
Class
A-3b Notes
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
|||||
Class
A-4 Notes
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
|||||
Total
Securities
|
$
|
[_____________
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
|||||
Weighted
Avg. Coupon (WAC)
|
[_____]
|
[_____]
|
||||||||||||||
Weighted
Avg. Remaining Maturity (WARM)
|
[_____]
|
[_____]
|
||||||||||||||
Pool
Receivables Balance
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
||||||||||
Remaining
Number of Receivables
|
[_____]
|
[_____]
|
||||||||||||||
Adjusted
Pool Balance
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
Exhibit
B-1
Hyundai
Auto Receivables Trust 2007-A
Monthly
Servicing Report
|
|||||
Collection
Period
|
[_____]
|
||||
1
Month LIBOR
|
[_____]
|
||||
Distribution
Date
|
[_____]
|
||||
Transaction
Month
|
[_____]
|
||||
30/360
Days
|
[_____]
|
||||
Actual/360
Days
|
[_____]
|
III.
COLLECTIONS
|
Principal:
|
||||
Principal
Collections
|
$
|
[_____________
|
]
|
|
Repurchased
Contract Proceeds Related to Principal
|
$
|
[_____________
|
]
|
|
Recoveries/Liquidation
Proceeds
|
$
|
[_____________
|
]
|
|
Total
Principal Collections
|
$
|
[_____________
|
]
|
|
Interest:
|
||||
Interest
Collections
|
$
|
[_____________
|
]
|
|
Late
Fees & Other Charges
|
$
|
[_____________
|
]
|
|
Interest
on Repurchase Principal
|
$
|
[_____________
|
]
|
|
Total
Interest Collections
|
$
|
[_____________
|
]
|
|
Collection
Account Interest
|
$
|
[_____________
|
]
|
|
Reserve
Account Interest
|
$
|
[_____________
|
]
|
|
Servicer
Advances
|
$
|
[_____________
|
]
|
|
Swap
Collections
|
$
|
[_____________
|
]
|
|
Total
Collections
|
$
|
[_____________
|
]
|
Exhibit
B-2
Hyundai
Auto Receivables Trust 2007-A
Monthly
Servicing Report
|
|||||
Collection
Period
|
[_____]
|
||||
1
Month LIBOR
|
[_____]
|
||||
Distribution
Date
|
[_____]
|
||||
Transaction
Month
|
[_____]
|
||||
30/360
Days
|
[_____]
|
||||
Actual/360
Days
|
[_____]
|
IV.
DISTRIBUTIONS
|
Total
Collections
|
$
|
[_____________
|
]
|
|
Reserve
Account Release
|
$
|
[_____________
|
]
|
|
Reserve
Account Draw
|
$
|
[_____________
|
]
|
|
Total
Available for Distribution
|
$
|
[_____________
|
]
|
Amount
Due
|
Amount
Paid
|
|||||||||
1.
Servicing Fee @1.00%:
|
||||||||||
Servicing
Fee Due
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
|
Collection
Account Interest
|
$
|
[_____________
|
]
|
|||||||
Late
Fees & Other Charges
|
$
|
[_____________
|
]
|
|||||||
Total
due to Servicer
|
$
|
[_____________
|
]
|
|||||||
2.
Swap Counterparty:
|
||||||||||
Net
Swap Payment
|
$
|
[_____________
|
]
|
|||||||
Senior
Swap Termination Payment
|
$
|
[_____________
|
]
|
|||||||
Total
Senior Swap Payments
|
$
|
[_____________
|
]
|
|||||||
3.
Noteholders Interest:
|
||||||||||
Class
A-1 Notes
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
||||
Class
A-2a Notes
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
||||
Class
A-2b Notes
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
||||
Class
A-3a Notes
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
||||
Class
A-3b Notes
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
||||
Class
A-4 Notes
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
||||
Total
Class A interest:
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
|
Available
Funds Remaining
|
$
|
[_____________
|
]
|
|||||||
4.
Principal Distribution Amount:
|
$
|
[_____________
|
]
|
Distributable
Amount
|
Paid
Amount
|
|||||||||
Class
A-1 Notes
|
$
|
[_____________
|
]
|
|||||||
Class
A-2a Notes
|
$
|
[_____________
|
]
|
|||||||
Class
A-2b Notes
|
$
|
[_____________
|
]
|
|||||||
Class
A-3a Notes
|
$
|
[_____________
|
]
|
|||||||
Class
A-3b Notes
|
$
|
[_____________
|
]
|
|||||||
Class
A-4 Notes
|
$
|
[_____________
|
]
|
|||||||
Total
Noteholders Principal
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
||||
5.
Available Amounts Remaining to reserve account
|
$
|
[_____________
|
]
|
|||||||
6.
Subordinated Swap Termination Payment
|
$
|
[_____________
|
]
|
|||||||
7.
Trustee Expenses
|
$
|
[_____________
|
]
|
|||||||
8.
Remaining Available Collections Released to
Certificateholder
|
$
|
[_____________
|
]
|
Exhibit
B-3
Hyundai
Auto Receivables Trust 2007-A
Monthly
Servicing Report
|
|||||
Collection
Period
|
[_____]
|
||||
1
Month LIBOR
|
[_____]
|
||||
Distribution
Date
|
[_____]
|
||||
Transaction
Month
|
[_____]
|
||||
30/360
Days
|
[_____]
|
||||
Actual/360
Days
|
[_____]
|
V.
YIELD SUPPLEMENT OVERCOLLATERALIZATION AMOUNT
(YSOA)
|
Beginning
Period Required Amount
|
$
|
[_____________
|
]
|
|
Beginning
Period Amount
|
$
|
[_____________
|
]
|
|
Current
Period Amortization
|
$
|
[_____________
|
]
|
|
Ending
Period Required Amount
|
$
|
[_____________
|
]
|
|
Ending
Period Amount
|
$
|
[_____________
|
]
|
|
Next
Distribution Date Required Amount
|
$
|
[_____________
|
]
|
VI.
RESERVE ACCOUNT
|
Reserve
Percentage of Initial Adjusted Pool Balance
|
[_____________]
|
%
|
||
Beginning
Period Required Amount
|
$
|
[_____________
|
]
|
|
Beginning
Period Amount
|
$
|
[_____________
|
]
|
|
Current
Period Release to Collection Account
|
$
|
[_____________
|
]
|
|
Current
Period Deposit
|
$
|
[_____________
|
]
|
|
Current
Period Release to Depositor
|
$
|
[_____________
|
]
|
|
Ending
Period Required Amount (0.5% of APB of cut-off date)
|
$
|
[_____________
|
]
|
|
Ending
Period Amount
|
$
|
[_____________
|
]
|
VII.
OVERCOLLATERALIZATION
|
Overcollateralization
Target
|
[_____]
|
%
|
||
Overcollateralization
Floor
|
[_____]
|
%
|
Beginning
|
Ending
|
Target
|
||||||||
Overcollateralization
Amount
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
$
|
[_____________
|
]
|
|
Overcollateralization
as a % of Original Pool (unadjusted)
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
||||
Overcollateralization
as a % of Current Pool (unadjusted)
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
Exhibit
B-4
Hyundai
Auto Receivables Trust 2007-A
Monthly
Servicing Report
|
|||||
Collection
Period
|
[_____]
|
||||
1
Month LIBOR
|
[_____]
|
||||
Distribution
Date
|
[_____]
|
||||
Transaction
Month
|
[_____]
|
||||
30/360
Days
|
[_____]
|
||||
Actual/360
Days
|
[_____]
|
VIII.
DELINQUENCY AND NET LOSS
ACTIVITY
|
Units
Percent
|
Units
|
Dollars
Percent
|
Dollar
Amount
|
||||||||||
Current
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
$
|
[_____________
|
]
|
||||
30
- 59 Days
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
$
|
[_____________
|
]
|
||||
60
- 89 Days
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
$
|
[_____________
|
]
|
||||
90
+ Days
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
$
|
[_____________
|
]
|
||||
Total
|
[_____
|
]
|
$
|
[_____________
|
]
|
||||||||
Delinquent
Receivables 60 + days past due
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
$
|
[_____________
|
]
|
||||
Delinquency
Ratio 60+ for 1st Preceding Collection Period
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
$
|
[_____________
|
]
|
||||
Delinquency
Ratio 60+ for 2nd Preceding Collection Period
|
[_____
|
]
|
[_____
|
]
|
[_____
|
]
|
$
|
[_____________
|
]
|
||||
Three-Month
Average Delinquency Ratio
|
[_____
|
]
|
[_____
|
]
|
|||||||||
Repossession
in Current Period
|
[_____
|
]
|
$
|
[_____________
|
]
|
||||||||
Repossession
Inventory
|
[_____
|
]
|
$
|
[_____________
|
]
|
||||||||
Charge-Offs
|
|||||||||||||
Gross
Principal of Charge-Off for Current Period
|
$
|
[_____________
|
]
|
||||||||||
Recoveries
|
$
|
[_____________
|
]
|
||||||||||
Net
Charge-offs for Current Period
|
$
|
[_____________
|
]
|
||||||||||
Beginning
Pool Balance for Current Period
|
$
|
[_____________
|
]
|
||||||||||
Net
Loss Ratio
|
[_____
|
]
|
|||||||||||
Net
Loss Ratio for 1st Preceding Collection Period
|
[_____
|
]
|
|||||||||||
Net
Loss Ratio for 2nd Preceding Collection Period
|
[_____
|
]
|
|||||||||||
Three-Month
Average Net Loss Ratio for Current Period
|
[_____
|
]
|
|||||||||||
Cumulative
Net Losses for All Periods
|
$
|
[_____________
|
]
|
||||||||||
Cumulative
Net Losses as a % of Initial Pool Balance
|
[_____
|
]
|
|||||||||||
Principal
Balance of Extensions
|
$
|
[_____________
|
]
|
||||||||||
Number
of Extensions
|
[_____
|
]
|
Exhibit
B-5
Hyundai
Auto Receivables Trust 2007-A
Monthly
Servicing Report
|
|||||
Collection
Period
|
[_____]
|
||||
1
Month LIBOR
|
[_____]
|
||||
Distribution
Date
|
[_____]
|
||||
Transaction
Month
|
[_____]
|
||||
30/360
Days
|
[_____]
|
||||
Actual/360
Days
|
[_____]
|
The
undersigned hereby certifies that the foregoing information is complete and
that
no Servicer Termination Event has occurred.
HYUNDAI
MOTOR FINANCE COMPANY,
as
Servicer
|
||
|
|
|
By: | ||
Name: [_____] |
||
Title:
[_____]
Date:
[_____]
|
Exhibit
B-6
EXHIBIT
C
Form
of Servicer’s Certificate
Collection
Period: ________________
Distribution
Date: ________________
Hyundai
Auto Receivables Trust 2007-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 28, 2007 among Hyundai
Auto Receivables Trust 2007-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 Servicer Termination Events have occurred.
IN
WITNESS WHEREOF, I have fixed hereunto my signature this ___ day of
___________.
HYUNDAI
MOTOR FINANCE COMPANY,
as
Servicer
|
||
|
|
|
By: | ||
Name: |
||
Title: |
Exhibit
C-1
SCHEDULE
A
Schedule
of Receivables
[Delivered
to the Trust at Closing]
Schedule
A-1
SCHEDULE
B
Yield
Supplement Overcollateralization Amount
With
respect to any Payment Date, the “Yield Supplement Overcollateralization Amount”
is the amount specified below:
Payment
Date
|
Yield
Supplement
Overcollateralization
Amount
|
|||
Closing
Date
|
$
|
20,199,390.93
|
||
October
2007
|
$
|
19,433,352.54
|
||
November
2007
|
$
|
18,681,385.25
|
||
December
2007
|
$
|
17,943,605.87
|
||
January
2008
|
$
|
17,220,131.99
|
||
February
2008
|
$
|
16,511,082.00
|
||
March
2008
|
$
|
15,816,574.92
|
||
April
2008
|
$
|
15,136,730.76
|
||
May
2008
|
$
|
14,471,669.73
|
||
June
2008
|
$
|
13,821,512.25
|
||
July
2008
|
$
|
13,186,377.81
|
||
August
2008
|
$
|
12,566,388.60
|
||
September
2008
|
$
|
11,961,660.67
|
||
October
2008
|
$
|
11,372,316.44
|
||
November
2008
|
$
|
10,798,472.89
|
||
December
2008
|
$
|
10,240,253.13
|
||
January
2009
|
$
|
9,697,775.70
|
||
February
2009
|
$
|
9,171,155.10
|
||
March
2009
|
$
|
8,660,510.64
|
||
April
2009
|
$
|
8,165,966.73
|
||
May
2009
|
$
|
7,687,643.29
|
||
June
2009
|
$
|
7,225,644.23
|
||
July
2009
|
$
|
6,780,047.37
|
||
August
2009
|
$
|
6,350,960.16
|
||
September
2009
|
$
|
5,938,494.19
|
||
October
2009
|
$
|
5,542,768.59
|
||
November
2009
|
$
|
5,163,889.80
|
||
December
2009
|
$
|
4,801,946.21
|
||
January
2010
|
$
|
4,456,872.29
|
||
February
2010
|
$
|
4,128,653.73
|
||
March
2010
|
$
|
3,817,289.76
|
||
April
2010
|
$
|
3,522,721.91
|
||
May
2010
|
$
|
3,244,956.48
|
||
June
2010
|
$
|
2,983,745.14
|
Schedule
B-1
Payment Date |
Yield
Supplement
Overcollateralization
Amount
|
|||
July
2010
|
$
|
2,738,376.62
|
||
August
2010
|
$
|
2,507,330.70
|
||
September
2010
|
$
|
2,289,254.54
|
||
October
2010
|
$
|
2,083,266.42
|
||
November
2010
|
$
|
1,888,384.09
|
||
December
2010
|
$
|
1,704,667.80
|
||
January
2011
|
$
|
1,531,915.50
|
||
February
2011
|
$
|
1,369,873.93
|
||
March
2011
|
$
|
1,218,253.88
|
||
April
2011
|
$
|
1,076,702.20
|
||
May
2011
|
$
|
945,249.00
|
||
June
2011
|
$
|
823,882.12
|
||
July
2011
|
$
|
712,520.87
|
||
August
2011
|
$
|
610,991.82
|
||
September
2011
|
$
|
519,156.34
|
||
October
2011
|
$
|
436,917.62
|
||
November
2011
|
$
|
364,167.38
|
||
December
2011
|
$
|
300,889.19
|
||
January
2012
|
$
|
246,483.41
|
||
February
2012
|
$
|
200,217.59
|
||
March
2012
|
$
|
161,230.56
|
||
April
2012
|
$
|
128,506.04
|
||
May
2012
|
$
|
101,860.56
|
||
June
2012
|
$
|
80,767.42
|
||
July
2012
|
$
|
64,208.19
|
||
August
2012
|
$
|
51,074.18
|
||
September
2012
|
$
|
40,520.08
|
||
October
2012
|
$
|
31,980.08
|
||
November
2012
|
$
|
24,674.76
|
||
December
2012
|
$
|
18,607.01
|
||
January
2013
|
$
|
13,679.08
|
||
February
2013
|
$
|
9,744.11
|
||
March
2013
|
$
|
6,642.49
|
||
April
2013
|
$
|
4,212.15
|
||
May
2013
|
$
|
2,426.14
|
||
June
2013
|
$
|
1,234.69
|
||
July
2013
|
$
|
523.39
|
||
August
2013
|
$
|
149.33
|
||
September
2013
|
$
|
0.00
|
Schedule
B-2
APPENDIX
A
REGULATION
AB REPRESENTATIONS, WARRANTIES AND COVENANTS
PART
I
DEFINED
TERMS
Section
1.01. As used in this Appendix A, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined); unless otherwise defined herein, terms used in
this
Appendix A that are defined in the Agreement to which this Appendix A is
attached shall have the same meanings herein as in the Agreement:
"Regulation
AB":
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
"Securities
Act":
The
Securities Act of 1933, as amended.
PART
II
COMPLIANCE
WITH REGULATION AB
Section
2.01. Intent
of the Parties; Reasonableness.
Each
of
the Issuer, the Depositor, the Seller, the Servicer and the Indenture Trustee
acknowledges and agrees that the purpose of Part II of this Appendix A is to
facilitate compliance by the Issuer, the Depositor, the Seller, the Servicer
and
the Indenture Trustee with the provisions of Regulation AB and the related
rules
and regulations of the Commission.
Neither
the Issuer nor the Seller shall exercise its right to request delivery of
information, reports or other performance under these provisions for purposes
other than compliance with Regulation AB. Each of the Issuer, the Seller and
the
Servicer acknowledges that interpretations of the requirements of Regulation
AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise. For so long as the Issuer
is subject to the reporting requirements under the Securities Exchange Act
of
1934, as amended, each of the Issuer, the Depositor, the Seller, the Servicer
and the Indenture Trustee hereby agrees to reasonably comply with all reasonable
requests made by any of the other parties hereto (including any of its assignees
or designees), as the case may be, in good faith for delivery of such
information or reports, including, without limitation, any Servicer compliance
statements and reports (solely with respect to the Servicer), and assessments
of
compliance and attestation, as may be required under the then-current
interpretations of Regulation AB. The servicing criteria to be addressed in
the
Indenture Trustee’s assessment of compliance and attestation shall be set forth
on Schedule I attached hereto and such assessments of compliance and
attestations shall be provided by March 15th
and
shall only be required for years in which a 10-K is required to be
filed.
Appendix
A-1
SCHEDULE
I
Servicing
Criteria To Be Addressed In Assessment Of Compliance
The
assessment of compliance to be delivered by the Indenture Trustee, shall
address, at a minimum, the criteria identified as below as “Applicable Servicing
Criteria”:
Reference
|
Criteria
|
|
Cash
Collection and Administration
|
||
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
Investor
Remittances and Reporting
|
||
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.*
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
*
Solely with respect to remittances
Schedule
I-1