HYUNDAI AUTO RECEIVABLES TRUST 2008-A $612,542,000 ASSET BACKED NOTES HYUNDAI ABS FUNDING CORPORATION (DEPOSITOR) HYUNDAI MOTOR FINANCE COMPANY (SELLER AND SERVICER) UNDERWRITING AGREEMENT
Exhibit
1.1
EXECUTION
VERSION
$612,542,000
ASSET BACKED NOTES
HYUNDAI
ABS FUNDING CORPORATION
(DEPOSITOR)
HYUNDAI
MOTOR FINANCE COMPANY
(SELLER
AND SERVICER)
June
16, ▇▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ Securities LLC
as
Representative of the
Several
Underwriters
Hearst
Tower
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▇▇▇▇▇▇▇▇▇,
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Ladies
and Gentlemen:
SECTION
1. Introduction.
Hyundai
ABS Funding Corporation (the “Depositor”) proposes to cause Hyundai Auto
Receivables Trust 2008-A (the “Trust”) to issue and sell $159,000,000 principal
amount of its Class A-1 Notes (the “Class A-1 Notes”), $179,000,000 principal
amount of its Class A-2 Notes (the “Class A-2 Notes”), $171,000,000 principal
amount of its Class A-3 Notes (the “Class A-3 Notes”) and $103,542,000 principal
amount of its Class A-4 Notes (the “Class A-4 Notes” and together with the Class
A-1 Notes, the Class A-2 Notes, and the Class A-3 Notes, the “Notes”) to the
several underwriters set forth on Schedule I (each, an “Underwriter”), for whom
Banc of America Securities LLC is acting as representative (the
“Representative”). The Notes will be issued pursuant to an Indenture, to be
dated as of June 25, 2008 (the “Indenture”), between the Trust and Citibank,
N.A., as indenture trustee (in such capacity, the “Indenture Trustee”). The
assets of the Trust will include, among other things, a pool of motor vehicle
retail installment sale contracts acquired by Hyundai Motor Finance Company
(“HMFC”) and sold to the Trust on the Closing Date (the “Receivables”) secured
by new and used automobiles, light-duty trucks and minivans and financed thereby
(the “Vehicles”), certain monies received thereunder after the close of business
on May 9, 2008 (the “Cutoff Date”) and the other property and the proceeds
thereof to be conveyed to the Trust pursuant to the Sale and Servicing Agreement
to be dated as of June 25, 2008 (the “Sale and Servicing Agreement”) among the
Trust, HMFC, as servicer, the Depositor and the Indenture Trustee. Pursuant
to
the Sale and Servicing Agreement, the Depositor will sell the Receivables to
the
Trust and HMFC will service the Receivables on behalf of the Trust. In addition,
pursuant to the Owner Trust Administration Agreement to be dated as of June
25,
2008 (the “Administration Agreement”) among the Trust, HMFC, and the Indenture
Trustee, HMFC will agree to perform certain administrative tasks on behalf
of
the Trust. The Depositor formed the Trust pursuant to a trust agreement, and
it
will be governed by an Amended and Restated Trust Agreement (the “Trust
Agreement”) to be dated as of June 25, 2008 among the Depositor, HMFC and
Wilmington Trust Company, as owner trustee (the “Owner Trustee”). The owner
trust certificate (the “Certificate”), representing a fractional undivided
interest in the Trust, will be issued to the Depositor pursuant to the Trust
Agreement.
The
Depositor will acquire the Receivables from HMFC pursuant to the terms of the
Receivables Purchase Agreement (the “Receivables Purchase Agreement”) to be
dated as of June 25, 2008 between the Depositor and HMFC. HMFC has acquired
the
Receivables from franchised dealers (the “Dealers”) pursuant to certain dealer
retail agreements between each Dealer and HMFC (collectively, the “Dealer Retail
Agreements”).
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Capitalized
terms used but not otherwise defined in this Underwriting Agreement (this
“Agreement”) shall have the meanings set forth in the Sale and Servicing
Agreement or if not defined therein, then as defined in the Prospectus
Supplement (as defined below). As used herein, the term “Transaction Documents”
refers to the Sale and Servicing Agreement, the Indenture, the Trust Agreement,
the Receivables Purchase Agreement and the Administration Agreement.
At
or
prior to the time when sales to purchasers of the Notes were first made to
investors by the Underwriters, which was approximately 3:30 p.m. on June 16,
2008 (the “Time of Sale”), the Seller had prepared the Preliminary Prospectus
Supplement dated June 12, 2008 to the Prospectus dated June 12, 2008 (along
with
information referred to under the caption “Static Pool Data” therein regardless
of whether it is deemed a part thereof under the Rules and Regulations, together
the “Preliminary Prospectus”). If, subsequent to the Time of Sale and prior to
the Closing Date, such information included an untrue statement of material
fact
or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and the Underwriters terminate their old “Contracts of Sale” (within
the meaning of Rule 159 under the Securities Act) and enter into new Contracts
of Sale with investors in the Notes, then the “Preliminary Prospectus” will
refer to the information conveyed to investors at the time of entry into such
new Contract of Sale, in an amended Preliminary Prospectus approved by the
Depositor and the Representative that corrects such material misstatements
or
omissions (a “Corrected Prospectus”) and “Time of Sale” will refer to the time
and date on which such new Contracts of Sale were entered into.
SECTION
2. Representations
and Warranties.
(a)
As a
condition of the several obligations of the Underwriters to purchase the Notes,
each of the Depositor and HMFC makes the representations and warranties set
forth below to the Representative and each of the Underwriters. To the extent
a
representation or warranty specifically relates to the Depositor, such
representation or warranty is made by the Depositor and HMFC jointly, and to
the
extent a representation or warranty specifically relates solely to HMFC, such
representation or warranty is only made by HMFC and not by the Depositor.
(i) The
registration statement on Form S-3 (No. 333-144832), including the exhibits
thereto, has been filed with the Securities and Exchange Commission (the
“Commission”) for registration under the Securities Act, which registration
statement has been declared effective by the Commission within the three years
prior to the Closing Date and is still effective as of the date hereof. Such
registration statement, including the exhibits thereto, as amended to the date
hereof, is hereinafter called the “Registration Statement”; the prospectus
included in the Registration Statement, at the time the Registration Statement
became effective, or as subsequently filed with the Commission pursuant to
Rule
424(b) under the Securities Act is hereinafter called the “Base Prospectus”; a
prospectus supplement relating to the Notes, in the form first filed after
the
date hereof pursuant to Rule 424(b) under the Securities Act, including the
Base
Prospectus as so supplemented and together, along with information referred
to
under the caption “Static Pool Data” therein regardless of whether it is deemed
a part of the Registration Statement or Base Prospectus under the Rules and
Regulations, is hereinafter called the “Prospectus Supplement”; and the Base
Prospectus together with the Prospectus Supplement are hereinafter called the
“Prospectus.” Any preliminary form of the Prospectus that has heretofore been
filed pursuant to Rule 424(b) is hereinafter called a “preliminary prospectus.”
Any reference herein to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement, the Base Prospectus or the Prospectus
Supplement, shall be deemed to refer to and include the filing of any document
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or
the filing date of the Base Prospectus or Prospectus Supplement, as the case
may
be, deemed to be incorporated therein by reference pursuant to Item 12 of Form
S-3 under the Securities Act.
-3-
(ii) The
Registration Statement as of the applicable effective date as to each part
thereof pursuant to Rule 430B(f)(2) and any amendment thereto of the Securities
Act (the “Effective Date”), the Preliminary Prospectus, as of the date of the
Preliminary Prospectus Supplement, and the Prospectus, as of the date of the
Prospectus Supplement, complied in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder (the “Rules and Regulations”); and the information in the
Registration Statement, as of the Effective Date, will conform in all material
respects to the requirements of the Securities Act and the Rules and Regulations
and did not contain any untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading; the Preliminary Prospectus, as of the date of the
Preliminary Prospectus Supplement and as of the Closing Date, will conform
in
all material respects to the requirements of the Securities Act and the Rules
and Regulations; and the Prospectus, and any amendments thereof and supplements
thereto, as of the date of the Prospectus Supplement and as of the Closing
Date,
will conform in all material respects to the requirements of the Securities
Act
and the Rules and Regulations and will not include any untrue statement of
a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they are made, not
misleading; provided, however, that neither HMFC nor the Depositor makes any
representations or warranties as to (i) that part of the Registration Statement
which constitutes the Statement of Qualification under the Trust Indenture
Act
of 1939, as amended (the “Trust Indenture Act”) on Form T-1 (the “Form T-1”) of
the Indenture Trustee (which will be represented and warranted to by the
Indenture Trustee) and (ii) the information contained in or omitted from such
Registration Statement or such Prospectus (or any supplement thereto) in
reliance upon and in conformity with written information furnished to HMFC
by or
on behalf of the Underwriters specifically for use in the preparation thereof
which information consists solely of the information set forth in the chart
following the first paragraph, the second paragraph, the selling concession
and
reallowance chart at the end of the second paragraph, the third paragraph and
the fourth paragraph under the heading “Underwriting” in the Prospectus
Supplement and the fifth paragraph under the heading “Underwriting” in the Base
Prospectus (the “Underwriters’ Information”).
(iii) The
Preliminary Prospectus, at the Time of Sale, did not, and at the Closing Date
will not, contain any untrue statement of a material fact or omit to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; provided that
the
Depositor makes no representation and warranty with respect to any statements
or
omissions made in reliance upon and in conformity with the Underwriters’
Information.
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(iv) Since
the
respective dates as of which information is given in the Preliminary Prospectus
and in the Prospectus there has not been any material adverse change, or, to
the
best of our knowledge, any development involving a prospective material adverse
change, in or affecting the condition, financial or otherwise, earnings,
business or operations of any of HMFC or its subsidiaries, including the
Depositor and its subsidiaries, taken as a whole, except as disclosed to the
Representative in writing prior to the date hereof.
(v) The
Indenture has been qualified under the Trust Indenture Act.
(vi) The
Trust
Agreement is not required to be qualified under the Trust Indenture
Act.
(vii) The
Trust
is not required to register under the Investment Company Act of 1940, as amended
(the “Investment Company Act”).
(viii) The
issuance and sale of the Notes have been duly authorized by all necessary
corporate action of the Depositor and, when executed, authenticated and
delivered to and paid for by the Underwriters in accordance with the terms
of
this Agreement and the Indenture, the Notes will be valid and binding
obligations of the Trust, enforceable in accordance with their terms, except
to
the extent that the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, receivership, conservatorship, moratorium or other
similar laws now or hereafter in effect relating to creditors’ rights in general
and to general principles of equity.
(ix) Each
of
the Depositor and HMFC has been duly incorporated and is validly existing as
a
corporation in good standing under the law of its jurisdiction of incorporation
with full corporate power and authority to own, lease and operate its properties
and assets and conduct its business as described in the Preliminary Prospectus
and the Prospectus, is duly qualified to transact business and is in good
standing in each jurisdiction in which its ownership, leasing or operation
of
its properties or assets or the conduct of its business requires such
qualification, except where the failure to be in good standing would not have
a
material adverse effect on the ability of the Depositor or HMFC to perform
its
respective obligations under the Agreement and the Transaction Documents or
on
the consummation of the transactions as contemplated by the Transaction
Documents, and has full corporate power and authority to execute and perform
its
obligations under this Agreement and the Transaction Documents to which it
is a
party.
(x) The
execution and delivery of this Agreement have been duly authorized by all
necessary corporate action of the Depositor and HMFC, and this Agreement has
been duly executed and delivered by the Depositor and HMFC and when duly
executed and delivered by the other parties hereto will be the legal, valid
and
binding agreement of the Depositor and HMFC, enforceable against the Depositor
and HMFC in accordance with its terms, except to the extent that the
enforceability thereof may be subject to bankruptcy, insolvency, reorganization,
receivership, conservatorship, moratorium or other similar laws now or hereafter
in effect relating to creditors’ rights in general and to general principles of
equity.
-5-
(xi) The
execution and delivery of the Transaction Documents to which it is a party
have
been duly authorized by all necessary corporate action of the Depositor or
HMFC,
as applicable, and, when duly executed and delivered by the Depositor and HMFC
(assuming due authorization, execution and delivery by the other parties
thereto), will be legal, valid and binding agreements of the Depositor and
HMFC,
enforceable against the Depositor or HMFC in accordance with their respective
terms, except to the extent that the enforceability thereof may be subject
to
bankruptcy, insolvency, reorganization, receivership, conservatorship,
moratorium or other similar laws now or hereafter in effect relating to
creditors’ rights in general and to general principles of equity.
(xii) The
execution and delivery by each of the Depositor and HMFC of, and the performance
by each of the Depositor and HMFC of its obligations under, this Agreement,
each
of the Transaction Documents to which it is a party and the Depositor under
the
Notes, the issuance and sale of the Notes to the Underwriters by the Depositor
pursuant to this Agreement (subject to obtaining any consents or approvals
as
may be required under the securities or “blue sky” laws to various
jurisdictions), the compliance by the Depositor and HMFC with the other
provisions of this Agreement and the consummation of the other transactions
herein contemplated do not (x) require the consent, approval, authorization,
registration or qualification of or with any governmental authority, except
as
such have been obtained or made or such as may be required under the securities
or “blue sky” laws of various jurisdictions, or (y) conflict with or result in a
breach or violation or acceleration of, or constitute a default under, any
term
or provision of the organizational documents of the Depositor or HMFC, any
indenture mortgage, deed of trust, lease or other agreement or instrument to
which the Depositor or HMFC is a party or by which any of them or their
properties is bound or result in a violation of or contravene the terms of
any
statute, order or regulation applicable to the Depositor or HMFC of any court,
regulatory body, administrative agency, governmental body or arbitrator having
jurisdiction over the Depositor or HMFC, or result in the creation of any lien
upon any property or assets of the Depositor or HMFC (other than pursuant to
the
Transaction Documents), except where such conflict, breach, default or creation
would not have a material adverse effect on the ability of the Depositor and
HMFC to perform its respective obligations under this Agreement and the
Transaction Documents or on the consummation of the transactions as contemplated
by the Transaction Documents.
(xiii) None
of
the Depositor or HMFC is in violation of any term or provision of its charter
documents or by-laws, or in breach of or in default under any statute or any
judgment, decree, order, rule or regulation of any court or other governmental
authority or any arbitrator applicable to the Depositor or HMFC, the consequence
of which violation, breach or default would have (a) a materially adverse effect
on or constitute a materially adverse change in the condition (financial or
otherwise), earnings, properties, business affairs, net worth or results of
operations of the Depositor or HMFC or (b) a material and adverse effect on
its
ability to perform its obligations under this Agreement or any of the
Transaction Documents, in each case, to which it is a party.
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(xiv) None
of
the Depositor, HMFC nor anyone acting on their behalf has taken any action
that
would require registration of the Depositor or the Trust under the Investment
Company Act; nor will the Depositor nor HMFC act, nor has either of them
authorized nor will either of them authorize any person to act, in such manner.
(xv) Each
of
the Depositor and HMFC possesses all consents, licenses, certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, the
absence of which would have a material adverse effect on the ability of the
Depositor and HMFC to perform its respective obligations under this Agreement
and the Transaction Documents or on the consummation of the transactions as
contemplated by the Transaction Documents, and neither the Depositor nor HMFC
has received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling
or
finding, would have a materially adverse effect on or constitute a materially
adverse change in the condition (financial or otherwise), earnings, properties,
business affairs, net worth or results of operations of the Depositor or HMFC,
except as described in or contemplated by the Prospectus.
(xvi) No
legal
or governmental proceedings are pending or threatened to which the Depositor
or
HMFC is a party or to which the property of the Depositor or HMFC is subject
except for such proceedings that would not, if the subject of any unfavorable
decision, ruling or finding, singly or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings, properties, business
affairs, net worth or results of operations of the Depositor or HMFC or the
Depositor’s or HMFC’s ability to perform its obligations under this Agreement or
the Transaction Documents or on the consummation of the transactions as
contemplated by the Transaction Documents.
(xvii) No
default exists, and no event has occurred which, with notice or lapse of time
or
both, would constitute a default in the due performance and observance of any
term, covenant or condition of any material indenture, mortgage, deed of trust,
lease or other material agreement or instrument to which the Depositor or HMFC
is a party or by which the Depositor or HMFC or any of its respective properties
is bound.
(xviii) The
Notes
and the Transaction Documents conform in all material respects to the
descriptions thereof contained in the Preliminary Prospectus and in the
Prospectus.
(xix) Each
of
the Depositor’s and HMFC’s representations and warranties in the Transaction
Documents are true and correct as of the date they are given therein and will
be
true and correct on the Closing Date, and such representations and warranties
are incorporated herein by reference.
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(xx) Other
than as contemplated by this Agreement or as disclosed in the Preliminary
Prospectus and in the Prospectus, there is no broker, finder or other party
that
is entitled to receive from the Depositor or any of its Affiliates or the
Underwriters, any brokerage or finder’s fee or other fee or commission as a
result of any of the transactions contemplated by this Agreement.
(xxi) None
of
the Depositor, HMFC nor any of their Affiliates has entered into, nor will
it
enter into, any contractual arrangement with respect to the distribution of
the
Notes except for this Agreement.
(xxii) Assuming
that the Notes are issued in accordance with the provisions of the Indenture
and
distributed in accordance with the terms of this Agreement and as described
in
the Prospectus, the Notes are “asset-backed securities” within the meaning of,
and satisfy the requirements for use of, Form S-3 under the Securities Act.
(xxiii) The
Notes, when duly and validly executed by the Indenture Trustee, authenticated
and delivered in accordance with the Indenture, and delivered and paid for
pursuant hereto will be validly issued and outstanding and entitled to the
benefits of the Indenture.
(xxiv) The
Certificates, when duly and validly executed by the Owner Trustee, authenticated
and delivered in accordance with the Trust Agreement, will be validly issued
and
outstanding and entitled to the benefits of the Trust Agreement.
(xxv) Any
taxes, fees and other governmental charges due on or prior to the Closing Date
(including, without limitation, sales taxes) in connection with the execution,
delivery and performance of this Agreement and the Transaction Documents and
the
issuance of the Notes have been or will have been paid at or prior to the
Closing Date.
(xxvi) Under
generally accepted accounting principles, HMFC will report its transfer of
the
Receivables to the Depositor as a sale of the Receivables, and the Depositor
will report its transfer of the Receivables to the Trust as a sale of the
Receivables.
(xxvii) None
of
the transactions contemplated by this Agreement (including, without limitation,
the use of the proceeds from the sale of the Notes) will violate or result
in a
violation of Section 7 of the Exchange Act, or any regulation promulgated
thereunder, including, without limitation, Regulations T, U, and X of the Board
of Governors of the Federal Reserve System.
(xxviii) As
of the
Time of Sale, the Depositor was not and as of the Closing Date will not be,
an
“ineligible issuer,” as defined in Rule 405 under the Securities
Act.
(xxix) The
Depositor has filed the Preliminary Prospectus and each Free Writing Prospectus
required to have been filed under the Securities Act and the Rules and
Regulations and it has done so within the applicable periods of time required
under the Securities Act and the Rules and Regulations.
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(xxx) Prior
to
the date hereof, none of HMFC, the Depositor nor any of their Affiliates
(including, without limitation, all officers and directors thereof) has taken
any action which is designed to or which has constituted or which might have
been expected to cause or result in stabilization or manipulation of the price
of any security in connection with the offering of the Notes.
(b) The
above representations and warranties shall be deemed to be repeated in their
entirety at and as of the Closing Date.
(c) Each
Underwriter hereby makes the representations and agrees to the statements
contained in Annex A hereto.
SECTION
3. Purchase,
Sale and Delivery of Notes.
(a)
On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Depositor agrees
to
cause the Trust to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Trust the respective principal
amount of the Notes set forth opposite the name of such Underwriter on Schedule
I, at a purchase price (the “Purchase Price”) equal to “Price $” as specified on
Schedule II hereto. Delivery of and payment for the Notes shall be made at
the
offices of ▇▇▇▇▇ ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. (New York time) on June 25, 2008
(or
at such other place and time on the same or other date as shall be agreed to
in
writing by the Representative and the Depositor, the “Closing Date”). Delivery
of one or more global notes representing the Notes shall be made against payment
of the aggregate purchase price in immediately available funds drawn to the
order of the Depositor. The global notes to be so delivered shall be registered
in the name of Cede & Co., as nominee of The Depository Trust Company
(“DTC”). The interests of beneficial owners of the Notes will be represented by
book entries on the records of DTC and participating members thereof. Definitive
Notes representing the Notes will be available only under limited circumstances,
as described in the Prospectus.
(b) The
Depositor hereby acknowledges that the payment of monies pursuant to Section
3(a) hereof (a “Payment”) by or on behalf of the Underwriters of the aggregate
Purchase Price for the Notes does not constitute closing of a purchase and
sale
of the Notes. Only (1) the execution and delivery, by facsimile or otherwise,
of
a receipt for Notes by the Representative, and (2) the release of all Permitted
Liens, as listed on Schedule IV hereto, by 4:00 p.m. (New York time) on the
Closing Date, indicates completion of the closing of a purchase of the Notes
from the Trust. Furthermore, in the event that the Underwriters make a Payment
to the Trust prior to the completion of the closing of a purchase of Notes,
the
Depositor hereby acknowledges that until the Representative executes and
delivers such receipt for the Notes and until all Permitted Liens have been
released by or before 4:00 p.m. (New York time) on the Closing Date, the Trust
will not be entitled to the Payment and the Depositor shall cause the Trust
to
return the Payment to the Underwriters as soon as practicable (by wire transfer
of same-day funds) upon demand. In the event that the closing of a purchase
of
Notes is not completed and the Payment is not returned by the Trust to the
Underwriters on the same day the Payment was received by the Trust, the
Depositor agrees to pay, or otherwise cause the Trust to pay, to the
Underwriters in respect of each day the Payment is not returned by it, in
same-day funds, interest on the amount of such Payment in an amount representing
the Underwriters’ cost of financing as reasonably determined by the
Representative.
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(c) It
is understood that the Representative or any Underwriter, individually, may
(but
shall not be obligated to) make Payment on behalf of any Underwriter or
Underwriters for any of the Notes to be purchased by such Underwriter or
Underwriters. No such Payment shall relieve such Underwriter or Underwriters
from any of its or their obligations hereunder.
SECTION
4. Offering
by Underwriters.
Upon
the authorization by the Representative of the release of the Notes, the several
Underwriters propose to offer the Notes for sale upon the terms and conditions
set forth in this Agreement and the Prospectus.
SECTION
5. Covenants
of the Depositor and HMFC.
Each of
the Depositor and HMFC covenants and agrees with the Underwriters as set forth
below.
(a) To
file the Prospectus, properly completed, with the Commission pursuant to and
in
accordance with Rule 424(b) under the Securities Act no later than the second
business day following the day it is first used. The Depositor will file with
the Commission any Free Writing Prospectus delivered to investors in accordance
with Section 6 as the Depositor is required to file under the Securities Act
and
the Rules and Regulations, and will do so within the applicable period of time
required under the Securities Act and the Rules and Regulations (which for
the
avoidance of doubt shall be in the case of a Free Writing Prospectus that is
Pre-pricing
and Pricing Information, the final version of the Pre-pricing and Pricing
Information). The Depositor or HMFC will advise the Representative promptly
of
any such filing under the Securities Act.
(b) To
furnish to the Underwriters and counsel for the Underwriters, without charge,
as
many copies of the Registration Statement, Preliminary Prospectus and the
Prospectus and all amendments and supplements to such documents, in each case
as
soon as available and in such quantities as the Underwriters reasonably request.
The Prospectus shall be furnished on or prior to 12:00 noon, New York time,
on
or prior to the second business day preceding the Closing Date. All other
documents shall be so furnished as soon as available and in such quantities
as
the Representative may reasonably request. The Depositor or HMFC will pay the
expenses of printing, reproducing and distributing to the Underwriters all
such
documents.
(c) To
advise
the Representative promptly, in writing, of any proposal to amend or supplement
the Registration Statement or the Prospectus and will not effect any such
amendment or supplement to which the Representative shall reasonably object;
and
to also advise the Representative promptly of the effectiveness of each
Registration Statement and of any amendment or supplement of the Registration
Statement or the Prospectus and of the institution by the Commission of any
stop
order proceedings in respect of the Registration Statement and will use its
best
efforts to prevent the issuance of any such stop order and to obtain as soon
as
possible its lifting, if issued.
(d) To
furnish the Underwriters with copies of the Preliminary Prospectus and the
Prospectus and each amendment or supplement, during the period when any
Underwriter is required to deliver a Prospectus under the Securities Act, at
the
cost and expense of HMFC, each in such quantities as the Representative may
from
time to time reasonably request (and subsequent to such period, to assist the
Underwriters in obtaining sufficient additional copies of the Prospectus, at
the
cost and expense of the Underwriters requesting such additional copies); and
if,
at any time prior to the expiration of the Prospectus delivery period under
the
Securities Act, any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement
of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary or desirable during such same period to amend
or
supplement the Prospectus, to notify the Representative and promptly prepare
and
file with the Commission (subject to the Representative’s prior review pursuant
to Section 5(c)), at its own expense, an amendment or supplement which will
correct such statement or omission, or an amendment which will effect such
compliance. Upon the Representative’s request, the Depositor will prepare and
furnish without charge to each Underwriter and to any dealer in securities
as
many written and electronic copies as the Representative may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance. Neither
the Underwriters’ consent to, nor the Underwriters’ distribution of any
amendment or supplement to the Prospectus shall constitute a waiver of any
of
the conditions set forth in Section 8 hereof.
-10-
(e) The
Depositor will arrange for the qualification of the Notes for offering and
sale
in each jurisdiction as the Representative shall designate including, but not
limited to, pursuant to applicable state securities (“Blue Sky”) laws of certain
states of the United States of America or other U. S. jurisdictions so
designated, and the Depositor shall maintain such qualifications in effect
for
so long as may be necessary in order to complete the placement of the Notes;
provided, however, that the Depositor shall not be obliged to file any general
consent to service of process or to qualify as a foreign corporation or as
a
securities dealer in any jurisdiction or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise
so
subject. The Depositor will promptly advise the Representative of the receipt
by
the Depositor of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(f) The
Depositor will cooperate with the Representative and use its best efforts to
permit the Notes to be eligible for clearance and settlement through DTC.
(g) HMFC
and
the Depositor shall (i) furnish or make available to the Underwriters or their
counsel such additional documents and information regarding HMFC, the Depositor
and their respective affairs as the Underwriters may from time to time
reasonably request prior to the Closing Date, including any and all
documentation reasonably requested in connection with its due diligence efforts
regarding information in the Registration Statement and the Prospectus and
in
order to evidence the accuracy or completeness of any of the conditions
contained in this Agreement and (ii) provide the Underwriters or their advisors,
or both, prior to acceptance of its subscription, the opportunity to ask
questions of, and receive answers with respect to such matters.
(h) From
the
date hereof until the Closing Date, none of the Depositor, HMFC, nor any of
their respective Affiliates will, without the prior written consent of the
Representative, directly or indirectly, offer, sell or contract to sell or
announce the offering of, in a public or private transaction, any other
collateralized securities similar to the Notes.
-11-
(i) During
the period beginning on the Closing Date and continuing until and including
the
date that is six months after the Closing Date, none of the Depositor, HMFC
or
any of their Affiliates shall offer, sell, contract to sell or otherwise dispose
of any securities of the Trust, the Depositor or HMFC in a public offering
that
are substantially similar to the Notes, without first furnishing to the
Representative an opinion of counsel (in form and from such firm as is
reasonably satisfactory to the Representative and counsel to the Representative)
stating that such public offering of securities would not result in any
violation of federal or state securities laws with respect to the Notes.
(j) Until
the
retirement of the Notes, neither the Depositor nor HMFC shall, nor cause the
Trust to, be or become an open-end investment company, unit investment trust,
closed-end investment company or face-amount certificate company that is or
is
required to be registered under Section 8 of the Investment Company Act.
(k) Until
the
retirement of the Notes, or until none of the Underwriters maintains a secondary
market in the Notes, whichever occurs first, HMFC shall cause the Depositor
to
and the Depositor shall deliver to each of the Underwriters, through the
Representative, the annual statement of compliance and any annual independent
certified public accountants’ report furnished to the Indenture Trustee pursuant
to the Sale and Servicing Agreement, as soon as such statements and reports
are
furnished to the Indenture Trustee.
(l) So
long
as any of the Notes are outstanding, HMFC shall cause the Depositor to and
the
Depositor shall deliver to each of the Underwriters, through the Representative:
(i) all documents distributed to Noteholders and (ii) from time to time, any
other information concerning HMFC, the Depositor or the Trust as the
Underwriters may reasonably request only insofar as such information reasonably
relates to the Registration Statement, the Prospectus or the transactions
contemplated by the Transaction Documents.
(m) On
or
before the Closing Date, HMFC and the Depositor (to the extent applicable)
shall
each cause their computer records relating to the Receivables to be marked
to
show the Trust’s absolute ownership of the Receivables, and from and after the
Closing Date neither the Depositor nor HMFC shall take any action inconsistent
with the Trust’s ownership of such Receivables, other than as permitted by the
Indenture or the Sale and Servicing Agreement.
(n) To
the
extent, if any, that any of the ratings assigned to the Notes by any of the
rating agencies that initially rate the Notes are conditional upon the
furnishing of documents or the taking of any other actions by the Depositor
or
HMFC, as the case may be, the relevant party shall furnish, or cause to be
furnished, such documents and take any such other actions as promptly as
possible.
(o) The
Depositor or HMFC will cause the Trust to make generally available to
Noteholders, as soon as practicable, but no later than sixteen months after
the
date hereof, an earnings statement of the Trust covering a period of at least
twelve consecutive months beginning after the later of (i) the Effective Date
of
the Registration Statement relating to the Notes and (ii) the effective date
of
the most recent post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement.
-12-
SECTION
6. Preliminary
Prospectus
and
Free Writing Prospectus.
(a) The
following terms have the specified meanings for purposes of this
Agreement:
(i) “Free
Writing Prospectus”
means
and includes any information relating to the Offered Notes disseminated by
the
Depositor or any Underwriter that constitutes a “free writing prospectus” within
the meaning of Rule 405 under the Securities Act.
(ii) “Issuer
Information”
means
the information contained in the Preliminary Prospectus (other than
Underwriters’ Information) and the Underwriter Free Writing Prospectus (solely
limited to (A) information included in the Preliminary Prospectus and (B)
Pre-pricing and Pricing Information).
(iii) “Underwriter
Free Writing Prospectus”
means
a
Free Writing Prospectus prepared by or on behalf of an Underwriter.
(iv) “Pre-pricing
and Pricing Information”
means
the information in an Underwriter Free Writing Prospectus consisting of (A)
the
underwriting syndicate, syndicate structure and status of the subscriptions
for
each class of Notes (both for the issuance as a whole and for each Underwriter’s
specific retention), (B) weighted average lives, ratings, expected maturities
and/or payment windows, benchmarks and legal finals for each class of Notes,
(B)
expected or actual pricing parameters for each class of Notes, (C) expected
settlement and non offered notes and (D) CUSIP numbers, ERISA eligibility,
pricing prepayment speed and clean up call.
(b) The
Depositor will not disseminate to any potential investor any information
relating to the Notes that constitutes a “written communication” (including any
“free writing prospectus”, each as defined in Rule 405 under the Securities
Act), other than the Preliminary Prospectus
and the Prospectus unless the Depositor has obtained the prior consent of the
Representatives.
(c) Neither
the Depositor nor any Underwriter shall disseminate or file with the Commission
any information relating to the Notes in reliance on Rule 167 or 426 under
the
Securities Act, nor shall the Seller or any Underwriter disseminate any Free
Writing Prospectus “in a manner reasonably designed to lead to its broad
unrestricted dissemination” within the meaning of Rule 433(d) under the
Securities Act.
(d) Each
Free
Writing Prospectus shall bear the following legend, or a substantially similar
legend that complies with Rule 433 under the Securities Act:
The
Depositor has filed a registration statement (including a prospectus) with
the
SEC for the offering to which this communication relates. Before you invest,
you
should read the prospectus in that registration statement and other documents
the depositor has filed with the SEC for more complete information about the
depositor, the issuing trust, and this offering. You may get these documents
for
free by visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the
depositor, any underwriter or any dealer participating in the offering will
arrange to send you the prospectus if you request it by calling toll-free
1-(800) 294-1322 (ext. 2663).
-13-
(e) In
the event that the Depositor or HMFC becomes aware that, as of the Time of
Sale,
any Preliminary Prospectus
contains or contained any untrue statement of material fact or omits or omitted
to state a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading (a “Defective Prospectus”), such entity shall promptly notify the
Underwriters of such untrue statement or omission no later than one business
day
after discovery and the Depositor shall, if requested by the Underwriters,
prepare and deliver to the Underwriters a Corrected Prospectus.
(f) Each
Underwriter represents, warrants, covenants and agrees with the Depositor
that:
(i) It
has not provided and will not provide to any potential investor any information
that would constitute “written communication” (as defined in Rule 405 under the
Securities Act) that constitutes an offer to sell or solicitation of an offer
to
buy the Notes, including, but not limited to any “ABS informational and
computational materials” as defined in Item 1101(a) of Regulation AB under the
Securities Act; other than that contained in one or more of (a) an Underwriter
Free Writing Prospectus (consisting of information limited to (1) information
included in the previously filed Preliminary Prospectus, (2) Pre-pricing and
Pricing Information, (3) Intex .cdi files and (4) information customarily
included in confirmations of sales of securities and notices of allocations),
(b) the Preliminary Prospectus,
(c) the Prospectus, and (d) information delivered in compliance with Rule 134
of
the Securities Act.
(ii) In
disseminating information to prospective investors, it has complied and will
continue to comply fully with the Rules and Regulations, including but not
limited to Rules 164 and 433 under the Securities Act and the requirements
thereunder for filing and retention of Free Writing Prospectuses, including
retaining any Free Writing Prospectuses they have used but which are not
required to be filed for the required period.
(iii) Prior
to
entering into any Contract of Sale, the applicable Underwriter shall convey
the
Preliminary Prospectus to the prospective investor. The Underwriter shall
maintain sufficient records to document its conveyance of the Preliminary
Prospectus to the potential investor prior to the formation of the related
Contract of Sale and shall maintain such records as required by the Rules and
Regulations.
-14-
(iv) If
a
Defective Prospectus has been corrected with a Corrected Prospectus delivered
to
such Underwriter, it shall (A) deliver the Corrected Prospectus to each investor
with whom it entered into a Contract of Sale and that received the Defective
Prospectus from it prior to entering into a new Contract of Sale with such
investor, (B) notify such investor in a prominent fashion that the prior
Contract of Sale with the investor, if any, has been terminated and of the
investor’s rights as a result of such agreement and (C) provide such investor
with an opportunity to affirmatively agree to purchase the Notes on the terms
described in the Corrected Prospectus.
(g) Each
Underwriter shall deliver to the Depositor, not less than one business day
prior
to the required date of filing thereof, all information included in an
Underwriter Free Writing Prospectus required to be filed with the Commission
under the Securities Act.
(h) In
the
event that any Underwriter shall incur any costs to any investor in connection
with the reformation of the Contract of Sale with such investor that received
a
Defective Prospectus (except to the extent the Defective Prospectus results
solely from statements or omissions made in reliance upon and in conformity
with
the Underwriters’ Information), the Depositor and HMFC jointly and severally
agree to reimburse such Underwriter for such costs. In the event the Depositor
or HMFC shall incur any costs in connection with a Defective Prospectus (to
the
extent the Defective Prospectus results solely from statements or omissions
made
in reliance upon and in conformity with the Underwriters’ Information), the
Underwriters shall jointly and severally reimburse the Depositor or HMFC, as
applicable, for such costs.
SECTION
7. Payment
of Expenses.
HMFC
will pay all expenses incident to the transactions contemplated by this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 9 hereof, including: (a)
the
preparation, printing and distribution of the Registration Statement, the
Preliminary Prospectus and the Prospectus Supplement and each amendment or
supplement thereto and delivery of copies thereof to the Underwriters, (b)
the
preparation of this Agreement, (c) the preparation, issuance and delivery of
the
Notes to the Underwriters (or any appointed clearing organizations), (d) the
fees and disbursements of HMFC’s and the Depositor’s accountants, (e) the
qualification of the Notes under state securities laws including filing fees
and
the fees and disbursements of counsel to the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky survey
(including the printing and delivery thereof to the Underwriters), (f) any
fees
charged by rating agencies for the rating (or consideration of the rating)
of
the Notes, (g) the fees and expenses incurred with respect to any filing with,
and review by, DTC or any similar organizations, (h) the fees and disbursements
of the Indenture Trustee and its counsel, if any, (i) the fees and disbursements
of the Owner Trustee and its counsel, if any, (j) the fees and expenses of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Finger, Delaware counsel to the Trust, (k) the reasonable
fees and expenses of HMFC’s and the Depositor’s counsel and (l) any costs
reimbursed to the Underwriters under section 6(g) above. To the extent that
the
transactions contemplated by this agreement are consummated, HMFC shall only
pay
the fees and expenses described in clauses (a) through (l). In addition, if
for
any reason the purchase of the Notes by the Underwriters is not consummated
(other than pursuant to Section 11 hereof), HMFC will reimburse the
Representative and the Underwriters for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel to the Representative and the
Underwriters) incurred by them in connection with the offering of the Notes.
-15-
SECTION
8. Conditions
of the Obligations of the Underwriters.
The
several obligations of the Underwriters to purchase and pay for the Notes will
be subject to the accuracy of the representations and warranties made herein,
to
the accuracy of the statements of officers made pursuant hereto, to the
performance by the Depositor and HMFC of their obligations hereunder, and to
the
following additional conditions precedent:
(a) On
the Closing Date, each of the Transaction Documents, the Notes and the
Certificates shall have been duly authorized, executed and delivered by the
parties thereto, shall be in full force and effect and no default shall exist
thereunder, and the Owner Trustee and the Indenture Trustee shall have received
a fully executed copy thereof or, with respect to the Notes and Certificates,
a
conformed copy thereof. The Transaction Documents, the Notes and the
Certificates shall be substantially in the forms heretofore provided to the
Representative.
(b) At
or before the Closing Date, the Representative shall have received a letter,
dated as of the date hereof, of KPMG LLP, independent certified public
accountants, substantially in the form of the draft to which the Representative
has agreed previously and otherwise substantially in form and substance
reasonably satisfactory to the Representative and counsel to the Underwriters
(and for the avoidance of any doubt, covering any static pool data pursuant
to
Item 1105 of Regulation AB under the Securities Act included or incorporated
by
reference in the Preliminary Prospectus or the Prospectus).
(c)
The Prospectus, the Preliminary Prospectus and each Free Writing Prospectus
required to be filed with the Commission shall have been filed with the
Commission in accordance with Rule 424(b) of the Securities Act and Section
5(a)
hereof.
(d) (i)
None of the Depositor, HMFC nor any of their subsidiaries shall have sustained,
since the date of the latest audited financial statements provided to the
Representative, any material loss or interference with its respective business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or
decree, otherwise than as set forth or contemplated in the Preliminary
Prospectus,
the Registration Statement or the Prospectus, and (ii) since the respective
dates as of which information is given in the Preliminary Prospectus, the
Registration Statement and the Prospectus there shall not have been any change,
or any development involving a prospective change, in or affecting the general
affairs, management, financial position, or results of operations of the
Depositor, HMFC, and their respective subsidiaries, otherwise than as set forth
or contemplated in the Preliminary Prospectus, the Registration Statement and
the Prospectus, the effect of which, in any such case described in clause (i)
or
(ii), in the judgment of the Representative, makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Notes on the
terms and in the manner contemplated in this Agreement and in the Prospectus.
-16-
(e) The
Representative shall have received an opinion of in-house counsel to the
Depositor and HMFC, addressed to the Representative, dated the Closing Date
and
satisfactory in form and substance to the Representative and counsel to the
Underwriters, to the effect that:
(i) Each
of HMFC and the Depositor has been duly formed and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
formation, and has the power and authority to own its properties and to conduct
its business as presently conducted, and to enter into and perform its
obligations under this Agreement and the Transaction Documents to which each
is
a party, and had at all relevant times, and now has, the power and authority
to
acquire, own, sell and service the Receivables and the related Collateral.
(ii) Each
of this Agreement and each Transaction Document has been duly authorized,
executed and delivered by the Depositor and HMFC, as applicable.
(iii) Each
of the Depositor and HMFC is duly qualified to do business and is in good
standing, and has obtained all necessary licenses, in each jurisdiction in
which
failure to so qualify or obtain such licenses would (a) render any Receivable
unenforceable by the Depositor or the Indenture Trustee on behalf of any
Noteholder or (b) have a material adverse affect upon its business or the
ownership of its property.
(iv) Neither:
(A) the transfer of the Receivables from HMFC to the Depositor pursuant to
the
Receivables Purchase Agreement, (B) the transfer of the Receivables from the
Depositor to the Trust pursuant to the Sale and Servicing Agreement, (C) the
assignment of the Collateral from HMFC to the Depositor and thereafter to the
Trust, (D) the assignment of the Depositor’s rights under the Receivables
Purchase Agreement to the Trust, (E) the grant of the security interest in
the
Receivables and the Collateral by the Trust to the Indenture Trustee pursuant
to
the Indenture, (F) the execution and delivery of this Agreement and the
Transaction Documents to which it is a party by HMFC, (G) the execution and
delivery of this Agreement and the Transaction Documents to which it is a party
by the Depositor, (H) the consummation of any transactions contemplated in
this
Agreement or the Transaction Documents, nor (I) the fulfillment of the terms
of
this Agreement, the Transaction Documents or the Notes by HMFC or the Depositor,
as the case may be, will (1) conflict with, or result in a breach, violation
or
acceleration of, or constitute a default under, any term or provision of the
articles of incorporation or by-laws of HMFC or the Depositor, or of any
indenture or other agreement or instrument to which either of them is a party
or
by which any of them or their respective property is bound, or (2) result in
a
violation, or contravene the terms, of any statute, order or regulation
applicable to either of them of any court, regulatory body, administrative
agency or governmental body having jurisdiction over HMFC or the Depositor,
in
each case that would materially and adversely affect the performance by the
Depositor or HMFC of its obligations under this Agreement or the Transaction
Documents to which it is a party.
(v) There
are no actions, proceedings or investigations pending or, to the best of such
counsel’s knowledge after due inquiry, threatened before any court,
administrative agency or other tribunal: (A) asserting the invalidity or
unenforceability of this Agreement or the Transaction Documents, (B) seeking
to
prevent the consummation of any of the transactions contemplated by this
Agreement or the Transaction Documents, or the execution and delivery thereof,
(C) that could reasonably be expected to materially and adversely affect the
performance by the Depositor of its obligations under this Agreement or the
Transaction Documents to which it is a party, (D) that could reasonably be
expected to materially and adversely affect the performance by HMFC of its
obligations under this Agreement or the Transaction Documents to which it is
a
party or (E) required to be disclosed in the Registration Statement, the
Preliminary Prospectus or the Prospectus other than those disclosed
therein.
-17-
(vi) Such
counsel is familiar with HMFC’s standard operating procedures relating to its
acquisition of a perfected first priority security interest in the vehicles
financed by it pursuant to retail installment sale contracts in the ordinary
course of its business. Assuming that its standard procedures are followed
with
respect to the perfection of security interests in the Vehicles (and such
counsel has no reason to believe that HMFC has not followed its standard
procedures in all material respects in connection with the perfection of
security interests in the Vehicles), HMFC has acquired or will acquire a
perfected first priority security interest in the Vehicles. Neither such
security interest nor the perfection of such security interest shall be
adversely affected by the transfer of the Receivables to the Depositor or to
the
Trust or the pledge thereof to the Indenture Trustee.
(vii) The
direction by the Trust to the Indenture Trustee to authenticate the Notes has
been duly authorized by HMFC, acting as the administrator of the Trust under
the
Administration Agreement.
(viii) No
authorization, consent, approval or other action by, and notice for, or filing
with, any governmental authority or regulatory body of the State of California
is required to the execution, delivery and performance by HMFC or the Depositor
of the Transaction Documents to which it is a party.
Such
opinion may contain such assumptions, qualifications and limitations as are
usual and customary in opinions of this type and are reasonably acceptable
to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than
the
federal law of the United States of America, the corporate laws of the State
of
Delaware and the laws of the State of California.
(f) The
Representative shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special
counsel to the Depositor, HMFC and the Trust, addressed to the Representative,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel to the Underwriters, to the effect that:
(i) Each
of the Transaction Documents to which the Depositor (other than this Agreement
and the Trust Agreement as to which no opinion shall be expressed), the Trust
and HMFC is a party constitutes a legal, valid and binding obligation of such
Company, enforceable against such party in accordance with its
terms.
-18-
(ii) The
execution and delivery by each of HMFC, the Depositor and the Trust of the
Transaction Documents and this Agreement to which it is a party, and the
consummation by each of the transactions contemplated thereby, will not violate
any applicable law, statute or governmental rule or regulation.
(iii) The
execution and delivery by each of HMFC, the Depositor and the Trust of the
Transaction Documents and this Agreement to which it is a party does not, and
the consummation by each of HMFC, the Seller and the Trust of the transactions
contemplated thereby to occur on the date of this opinion will not, require
any
consent, authorization or approval of, the giving of notice to or registration
with any governmental entity, except such as may have been made and such as
may
be required under the Federal securities laws, the blue sky laws of any
jurisdiction or the Uniform Commercial Code of any state; provided that such
counsel expresses no opinion with respect to any orders, consents, permits,
approvals, filings or licenses related to the authority to sell motor vehicles,
originate retail installment sale contracts or service retail installment sale
contracts or as may be required by any regional or local government authority
or
under any foreign or state securities law.
(iv) The
execution and delivery by HMFC, the Depositor and the Trust of the Transaction
Documents and this Agreement to which it is a party do not, and the consummation
by HMFC, the Seller and the Trust of the transactions contemplated thereby
to
occur on the date of this opinion will not, violate or contravene, or constitute
a default under any
provisions of the agreements described in Exhibit A thereto (such agreements,
the “Conduit
Documents”).
(v) Each
of
the Notes is in due and proper form, and when duly executed, authenticated
and
delivered as specified in the Indenture, and delivered against payment of the
consideration specified in this Agreement, each of the Notes will be validly
issued and outstanding, will constitute the legal, valid and binding obligation
of the Issuer, enforceable against the Issuer in accordance with its terms,
and
will be entitled to the benefits of the Indenture.
(vi) The
Indenture has been duly qualified under the Trust Indenture Act and complies
as
to form with the Trust Indenture Act and the rules and regulations of the
Commission thereunder.
(vii) The
Trust
Agreement is not required to be qualified under the Trust Indenture
Act.
(viii) Each
of
the Registration Statement, as of its Effective Date, the Preliminary
Prospectus, as of the Time of Sale, and the Prospectus, as of the date of the
Prospectus Supplement, appears on its face to comply in all material respects
with the requirements of the Act and the rules and regulations under the Act,
except that (i) such counsel expresses no opinion as to the financial and
statistical data included therein or excluded therefrom or the exhibits to
the
Registration Statement and (ii) except as and to the extent set forth in (x)
below, such counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Preliminary Prospectus or the Prospectus.
-19-
(ix) The
Registration Statement has become effective under the Act, and the Prospectus
has been filed with the Commission pursuant to Rule 424(b) under the Act in
the
manner and within the time period required by Rule 424(b). To the best of our
knowledge, no stop order suspending the effectiveness of the Registration
Statement and no proceedings for that purpose have been instituted.
(x) The
statements in the Prospectus and in the Preliminary Prospectus under the heading
“ERISA
Considerations”
to
the
extent they constitute matters of law or legal conclusions with respect thereto,
have been reviewed by such counsel and are correct in all material
respects.
(xi) The
Trust
and the Depositor are not now, and immediately following the issuance of the
Notes pursuant to the Indenture will not be, required to be registered under
the
Investment Company Act.
(xii) The
Class
A-1 Notes are “eligible securities” within the meaning of Rule 2a-7 promulgated
under the Investment Company Act.
Such
opinion may contain such assumptions, qualifications and limitations as are
usual and customary in opinions of this type and are reasonably acceptable
to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than
the
federal law of the United States of America, the Uniform Commercial Code of
the
State of Delaware, the Uniform Commercial Code of the State of California,
and
the laws of the State of New York.
(g) The
Representative shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to
the
Depositor, HMFC and the Trust, addressed to the Representative, dated the
Closing Date and satisfactory in form and substance to the Representative and
counsel to the Underwriters, to the effect that:
(i) In
a properly presented and argued case in a proceeding under Title 11 of the
United States Code, 11 U. S. C. §101 et seq.
(the
“Bankruptcy Code”) in which HMFC is the debtor, the bankruptcy court would not,
under applicable federal bankruptcy law, apply the doctrine of substantive
consolidation to consolidate the assets and liabilities of the Depositor with
the assets and liabilities of HMFC.
(ii) In
a
properly presented and argued case in a proceeding under the Bankruptcy Code,
in
which HMFC is the debtor, the bankruptcy court would determine that, with
respect to the sale of the Receivables from HMFC to the Depositor, such sale
was
a “true sale.”
(iii) If
HMFC
were to become a debtor in a case under the Bankruptcy Code, a federal
bankruptcy court, would hold that (A) the Receivables sold to the Depositor
are
not property of the estate of HMFC under Section 541 of the Bankruptcy Code
and
(B) the automatic stay arising pursuant to Section 362 of the Bankruptcy Code
would not operate to stay payments by HMFC of collections on the Recievables
in
accordance with the Transaction Agreements.
-20-
Such
opinion may contain such assumptions, qualifications and limitations as are
usual and customary in opinions of this type and are reasonably acceptable
to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than
the
federal law of the United States of America, the laws of the State of
California, and the laws of the State of New York.
(h) The
Representative shall have received a letter of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to
the
Depositor, HMFC and the Trust, addressed to the Representative, dated the
Closing Date and satisfactory in form and substance to the Representative and
counsel to the Underwriters, to the effect that such counsel has reviewed the
Preliminary Prospectus,
the Registration Statement and the Prospectus and participated in conferences
with officers and other representatives of HMFC and the Depositor,
representatives of the independent public accountants for HMFC and the Depositor
and your representatives and counsel, at which the contents of the Preliminary
Prospectus, the Registration Statement, the Prospectus and related matters
were
discussed and, although such counsel does not establish or confirm factual
matters set forth in the Preliminary Prospectus, the Registration Statement
and
the Prospectus, and has not undertaken any obligation to verify independently
any of the factual matters set forth in the Preliminary Prospectus, the
Registration Statement and the Prospectus and although many of the
determinations required to be made in the preparation of the Preliminary
Prospectus, the Registration Statement and the Prospectus involve matters of
a
non-legal nature, such counsel confirms that, on the basis of the information
gained in the course of performing these services, nothing came to their
attention that caused them to believe that the Registration Statement, on the
Effective Date thereof, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading, or that the Prospectus, as of the
date of the Prospectus Supplement, and as of the Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading or that the
Preliminary Prospectus, as of the Time of Sale, and as of the Closing Date,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Preliminary Prospectus, the Registration Statement and the
Prospectus (except, to the extent set forth in paragraph II.J of such counsel’s
opinion, to be delivered on the Closing Date, with respect to certain corporate
matters) or for any information omitted from the Preliminary Prospectus that
would be permitted to be omitted from a preliminary prospectus prepared in
reliance on Rule 430B under the Securities Act. In addition, such counsel does
not express any belief with respect to the financial statements or notes
thereto, or the other financial, statistical or accounting data contained in
or
omitted from the Registration Statement, the Preliminary Prospectus or the
Prospectus, any changes to the tables under the heading “Weighted Average Life
of the Notes” between the Preliminary Prospectus and the Prospectus Supplement
or the Indenture Trustee’s Statement of Eligibility on Form T-1. Such counsel
expresses no opinion regarding any Underwriter Free Writing
Prospectus.
-21-
Such
opinion may contain such assumptions, qualifications and limitations as are
usual and customary in opinions of this type and are reasonably acceptable
to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than
the
federal law of the United States of America and the laws of the State of New
York.
(i) ▇▇▇▇▇
▇▇▇▇▇ LLP, in its capacity as counsel for HMFC and the Depositor, shall have
delivered one or more opinions satisfactory in form and substance to the
Representative and counsel to the Underwriters, dated the Closing Date and
addressed to the Representative, subject to certain considerations set forth
therein, substantially to the effect that
(i) The
provisions of the Receivables Purchase Agreement are effective under the UCC
as
in effect in the State of New York (the “New York UCC”) to create in favor of
the Depositor a security interest in HMFC’s rights in the portion of the
collateral described in Section 2.01(a) or Section 2.01(d), as applicable,
of
the Receivables Purchase Agreement (the “RPA Assets”) and in any identifiable
proceeds thereof (collectively, the “HMFC
Collateral”).
(Such
counsel notes that a “security interest” as defined in 1-201(37) of the New York
UCC includes the interests of a buyer of accounts, chattel paper, payment
intangibles and promissory notes and such counsel references their other opinion
dated the Closing Date with respect to whether the security interest of the
Depositor should be characterized as an ownership interest or solely as a
collateral interest held to secure a loan made to HMFC).
(ii) The
provisions of the Sale and Servicing Agreement are effective under the New
York
UCC to create in favor of the Trust a security interest in the Depositor’s
rights in the portion of the collateral described in Section 2.01 of the Sale
and Servicing Agreement (the “SSA
Assets”)
and in
any identifiable proceeds thereof (the “Depositor
Collateral”).
(Such
counsel notes that a “security interest” as defined in 1-201(37) of the New York
UCC includes the interests of a buyer of accounts, chattel paper, payment
intangibles and promissory notes and such counsel expresses no opinion as to
whether the security interest of the Trust would be characterized as an
ownership interest or solely as a collateral interest held to secure a loan
made
to the Depositor).
(iii) The
provisions of the Indenture are effective under the New York UCC to create
in
favor of the Indenture Trustee a security interest in the Trust’s rights in that
portion of the collateral described in the granting clause of the Indenture
(the
“Indenture
Collateral”)
and in
any identifiable proceeds thereof. Such counsel expresses no opinion as to
whether the security interest of the Indenture Trustee would be characterized
as
an ownership interest or solely as a collateral interest held to secure a loan
made to the Depositor.
(iv) Under
the
New York UCC (including the choice of laws provisions thereof) while a debtor
is
“located” in a jurisdiction the local law of that jurisdiction governs the
perfection by the filing of a financing statement of a security interest in
personal property that is accounts, chattel paper, payment intangibles or
instruments. Under the New York UCC (including the choice of laws provisions
thereof):
-22-
|
(1)
|
HMFC
is “located” in California and the local law of that state governs
perfection by the filing of financing statements of a security interest
in
HMFC’s rights in the HMFC
Collateral.
|
|
(2)
|
The
Depositor is “located” in Delaware and the local law of that state governs
perfection by the filing of financing statements of a security interest
in
Depositor’s rights in the Depositor
Collateral.
|
|
(3)
|
The
Trust is “located” in Delaware and the local law of that state governs
perfection by the filing of financing statements of a security interest
in
the Trust’s rights in the Indenture Collateral.
|
(v) When
the
HMFC Financing Statement is filed (within the meaning of Section 9-516 of the
UCC as in effect in the State of California (the “California UCC”) in the
California filing office specified in such opinion (the “California Search
Office”), under the provisions of the California UCC the Depositor’s security
interest in the HMFC Collateral will be perfected.
(vi) When
the
Depositor Financing Statement is filed (within the meaning of Section 9-516
of
the UCC as in effect in the State of Delaware (the “Delaware UCC”) in the
Delaware filing office specified in such opinion (the “Delaware Search Office”),
under the provisions of the Delaware UCC the Issuer’s security interest in the
Depositor Collateral will be perfected.
(vii) Under
the
New York UCC, except as provided in the next sentence, the law of each of
HMFC’s, the Depositor’s or the Trust’s (each, a “Transferring Party”), as
applicable, location (as set forth in paragraph D above) will govern the effect
of perfection or nonperfection and the priority of a nonpossessory security
interest in such Transferring Party’s rights in the HMFC Collateral, the
Depositor Collateral or Indenture Collateral, as applicable. To the extent
that
any of the HMFC Collateral, the Depositor Collateral or Indenture Collateral
is
or becomes evidenced by instruments, tangible chattel paper or any other
property in which a security interest may be perfected by taking possession,
the
local law of the jurisdiction where such property is located will govern, the
effect of perfection or nonperfection, and the priority of both a possessory
and
a nonpossessory security interest in such property.
(viii) The
Search Reports were requested using the proper legal names of each Transferring
Party. Such counsel has reviewed the Search Reports (as defined in such opinion
and each as of the dates set forth therein) and, except for the financing
statements naming specified parties as the secured parties, such Search Reports
identify no secured party who has filed with the Search Offices a financing
statement naming a
Transferring Party as a debtor or seller
and indicating the HMFC Collateral,
the Seller
Collateral
or the Collateral, as applicable,
as collateral. Accordingly,
-23-
|
(1)
|
under
Article 9 of the applicable UCC and based solely on such counsel’s review
of the Search Reports, upon
the filing of the HMFC Financing Statement
in
the California Search Office,
the Depositor’s perfected
security interest in the HMFC Collateral will
be
prior to any other security interest granted by HMFC that is perfected
solely by
the filing of financing
statements
in
the California Search Office;
|
|
(2)
|
under
Article 9 of the applicable UCC and based solely on such counsel’s review
of the Search Reports, upon the filing of the Depositor Financing
Statement in the Delaware Search Office, the Trust’s perfected security
interest in the Depositor Collateral will be prior to any other security
interest granted by the Depositor that is perfected solely by the
filing
of financing statements in the Delaware Search Office;
and
|
|
(3)
|
under
Article 9 of the applicable UCC and based solely on such counsel’s review
of the Search Reports,
assuming the Indenture Trustee’s security interest is perfected by the
filing in the Delaware Search Office of a properly prepared financing
statement (as to which we express no opinion),
such perfected security interest in the
Indenture
Collateral will
be
prior to any other security interest granted by the Trust
that is perfected solely by the filing of financing statements in
the
Delaware Search Office;
|
(ix) Pursuant
to (a) Sections 9-301 through 9-307 of the NY
UCC
and 9-705(c) of the UCC in effect as of the Closing Date in each Transferring
Party’s “location” as set forth in paragraph D above, and (b) former Section
9-103 (repealed) of the UCC in such Transferring Party’s “location” as set forth
in paragraph D above, the Search Offices constitute all of the states in which
searches must be made of filings naming a Transferring Party as debtor to
determine whether a security interest in the HMFC Collateral, Depositor
Collateral or Indenture Collateral, as applicable, has been perfected by
filing.
(x) Pursuant
to Section 9-305(a)(3) of the New York UCC, the local law of a securities
intermediary’s jurisdiction governs perfection of a security interest by a
method other than the filing of a financing statement in a securities account
maintained by such securities intermediary and the security entitlements to
financial assets credited thereto. With respect to the Reserve Account
maintained with the Securities Intermediary pursuant to the Control Agreement,
when the Securities Intermediary indicates by book entry that a financial asset
has been credited to the Reserve Account, a security entitlement will exist
with
respect to such financial asset. Assuming that (a) the State of New York is
the
Securities Intermediary’s jurisdiction for purposes of the applicable UCC, (b)
the Reserve Account is a securities account maintained by the Securities
Intermediary for
the
Indenture Trustee, and (c) the Securities Intermediary has
agreed to treat the Indenture Trustee as the sole person entitled to exercise
the rights that comprise any financial assets credited to the Reserve
Account, the
Indenture Trustee’s security interest in the Trust’s rights in the Reserve
Account and in security entitlements to financial assets credited thereto,
is
perfected by “control” within the meaning of Section 9-106 of the New York UCC.
Such security interest of the Indenture Trustee in the Reserve Account and
the
security entitlements carried in the Reserve Account is prior to any other
security interest therein under the New York UCC that is perfected by a method
other than “control”.
-24-
Such
opinion may contain such assumptions, qualifications and limitations as are
usual and customary in opinions of this type and are reasonably acceptable
to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than
the
federal law of the United States of America and the laws of the State of New
York.
(j) ▇▇▇▇▇
▇▇▇▇▇ LLP, in its capacity as Federal tax counsel for the Depositor and the
Trust, shall have delivered an opinion satisfactory in form and substance to
the
Representative and counsel to the Underwriters, dated the Closing Date and
addressed to the Representative, to the effect that, for United States federal
income tax purposes: (A) (i) the Trust will not be treated as an association
or
a publicly traded partnership, taxable as a corporation, and (ii) the Notes
will
be treated as indebtedness; and (B) based on the facts and assumptions and
subject to the limitations set forth in the Prospectus, the statements in the
Prospectus, as of the date of the Prospectus Supplement and as of the Closing
Date, and the Preliminary Prospectus, as of the Time of Sale and as of the
Closing Date, under the heading “MATERIAL UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES,” to the extent such statements constitute matters of law or legal
conclusions, are correct in all material respects.
(k) The
Representative shall have received an opinion of in-house counsel to the
Indenture Trustee, addressed to the Representative, dated the Closing Date
and
satisfactory in form and substance to the Representative and counsel to the
Underwriters, to the effect that:
(i) The
Indenture Trustee is a national banking association duly incorporated and
validly existing under the laws of the United States.
(ii) The
Indenture Trustee has the full corporate trust power to accept the office of
trustee under Indenture and to enter into and perform its obligations under
the
Indenture.
(iii) The
execution and delivery of the Indenture and the performance by the Indenture
Trustee of its obligations under the Indenture have been duly authorized by
all
necessary action of the Indenture Trustee.
(iv) The
Indenture constitutes a valid and binding obligation of the Indenture Trustee
enforceable against it in accordance with their terms under the laws of New
York
and the Federal laws of the United States.
-25-
(v) The
execution and delivery by the Indenture Trustee of the Indenture does not
require any consent, approval or authorization of, or any registration or filing
with, any New York or United States Federal governmental authority.
(vi) Each
of the Notes has been duly executed by the Indenture Trustee as trustee and
authenticating agent.
(l) The
Representative shall have received an opinion addressed to the Representative,
of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the Owner Trustee, dated the
Closing Date and satisfactory in form and substance to the Representative and
counsel to the Underwriters, to the effect that:
(i) The
Owner Trustee is duly formed and validly existing under the laws of the State
of
Delaware with trust powers and with its principal place of business in the
State
of Delaware.
(ii) The
Owner Trustee has the full corporate trust power to accept the office of trustee
under the Trust Agreement and to enter into and perform its obligations under
the Trust Agreement.
(iii) The
execution and delivery of the Trust Agreement and the performance by the Owner
Trustee of its obligations under the Trust Agreement have been duly authorized
by all necessary action of the Owner Trustee.
(iv) The
execution and delivery by the Owner Trustee of the Trust Agreement does not
require any consent, approval or authorization of, or any registration or filing
with Delaware or United States Federal governmental authority.
(v) The
Owner Trustee has duly authorized, executed and delivered the Trust Agreement
and on behalf of the Trust, the Owner Trustee has duly executed and delivered
the Transaction Documents to which the Trust is a party.
(vi) The
Notes and the Certificates have been duly executed and delivered by the Owner
Trustee, on behalf of the Trust.
(m) The
Representative shall have received an opinion addressed to the Representative,
of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Trust, dated
the Closing Date and satisfactory in form and substance to the Representative
and counsel to the Underwriters, to the effect that:
(i) The
Trust Agreement constitutes the legal, valid and binding obligation of the
Owner
Trustee and the Depositor enforceable against the Owner Trustee and the
Depositor in accordance with its terms subject to (i) applicable bankruptcy,
insolvency, moratorium, receivership, reorganization, fraudulent conveyance
and
similar laws relating to and affecting the rights and remedies of creditors
generally, and (ii) principles of equity (regardless of whether considered
and
applied in a proceeding in equity or at law).
-26-
(ii) The
Trust has been duly formed and is validly existing as a statutory trust under
the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq.
(the
“Statutory Trust Act”) and has the power and authority under the Trust Agreement
and the Statutory Trust Act to execute, deliver and perform its obligations
under the Transaction Documents to which the Trust is a party.
(iii) The
Transaction Documents to which the Trust is a party have been duly authorized,
executed and delivered by the Trust.
(iv) To
the
extent that Article 9 of the Delaware UCC is applicable (without regard to
conflict of laws principles), upon the filing of the Financing Statement with
the Division, the Indenture Trustee will have a perfected security interest
in
the Trust's rights in that portion of the Collateral (as defined in the
Indenture) described in the Financing Statement that may be perfected by the
filing of a UCC financing statement with the Division (the "Filing Collateral")
and the proceeds (as defined in Section 9-102(a)(64) of the Delaware UCC)
thereof.
(v) The
Search Report sets forth the correct filing office and the correct debtor name
that are necessary to identify those persons, under the Delaware UCC, who have
on file financing statements against the Trust covering the Filing Collateral
as
of the Effective Time. The Search Report identifies no secured party who has
filed with the Division a financing statement naming the Trust as debtor and
describing the Filing Collateral prior to the Effective Time.
(vi) Assuming
for federal income tax purposes that the Trust will not be classified as an
association or a publicly traded partnership taxable as a corporation, and
that
the Notes will be characterized as indebtedness for federal income tax purposes,
then the Trust will not be subject to any franchise or income tax under the
laws
of the State of Delaware, and the Notes will also be characterized as
indebtedness for Delaware tax purposes.
(vii) Under
§
3805(c) of the Statutory Trust Act, the Trust is a separate legal entity and,
assuming that the Sale and Servicing Agreement conveys good title to the Trust
property to the Trust as a true sale and not as a security arrangement, the
Trust rather than the holders of the Certificates will hold whatever title
to
the Trust property as may be conveyed to it from time to time pursuant to the
Sale and Servicing Agreement, except to the extent that the Trust has taken
action to dispose of or otherwise transfer or encumber any part of the Trust
property.
(viii) Under
§
3805(b) of the Statutory Trust Act, no creditor of any Certificateholder shall
have any right to obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the Trust except in accordance with
the terms of the Trust Agreement.
(ix) Under
3808(a) and (b) of the Statutory Trust Act, the Trust may not be terminated
or
revoked by any holder of Certificates, and the dissolution, termination or
bankruptcy of any holders of Certificates shall not result in the termination
or
dissolution of the Trust, except to the extent otherwise provided in the Trust
Agreement.
-27-
(x) The
execution, delivery and performance by the Owner Trustee of the Trust Agreement
and, on behalf of the Trust, the Transaction Documents to which the Trust is
a
party, do not require any consent, approval or authorization of, or any
registration or filing with, any governmental authority of the State of
Delaware, except for the filing of the Certificate of Trust with the Secretary
of State.
(xi) Neither
the consummation by the Owner Trustee of the transactions contemplated in the
Trust Agreement or, on behalf of the Trust, the transactions contemplated in
the
Transaction Documents to which the Trust is a party nor the fulfillment of
the
terms thereof by the Owner Trustee will conflict with or result in a breach
or
violation of any law of the State of Delaware.
Such
opinion may contain such assumptions, qualifications and limitations as are
usual and customary in opinions of this type and are reasonably acceptable
to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than
the
laws of the State of Delaware. Capitalized terms used in the above opinion
paragraphs and not otherwise defined in this Agreement will have the meanings
ascribed to such terms in the relevant opinion.
(n) [Reserved]
(o) The
Representative shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with respect
to
such matters as the Representative may require, and the Depositor and HMFC
shall
have furnished to such counsel such documents as it may reasonably request
for
the purpose of enabling it to pass upon such matters.
(p) The
Representative shall have received copies of each opinion of counsel delivered
to any rating agency, together with a letter addressed to the Representative,
dated the Closing Date, to the effect that the Representative and the
Underwriters may rely on each such opinion to the same extent as though such
opinion was addressed to each as of its date.
(q) The
Representative shall have received certificates dated the Closing Date of any
two of the President, Chief Financial Officer, any Vice President, the
Controller or the Treasurer of the Depositor and HMFC in which such officers
shall state that: (A) the representations and warranties made by such entity
contained in the Transaction Documents and this Agreement are true and correct,
that such party has complied with all agreements and satisfied all conditions
on
its part to be performed or satisfied under such agreements on or before the
Closing Date, (B) since the date of this Agreement there has not occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the condition, financial or otherwise, or in
the
earnings, business or operations of the Trust, the Depositor or HMFC except
as
disclosed to the Representative in writing, and (C) there are no actions,
proceedings or investigations to which the Depositor or HMFC is a party or
that
are threatened before any court, administrative agency or other tribunal having
jurisdiction over HMFC or the Depositor, (i) that are required to be
disclosed in the Registration Statement, (ii) asserting the invalidity of
this Agreement, any Transaction Document or the Notes, (iii) seeking to
prevent the issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or the Transaction Documents, (iv) which
could reasonably be expected to materially and adversely affect the performance
by the Depositor or HMFC of its obligations under, or the validity or
enforceability of, this Agreement, any Transaction Document or the Notes or
(v)
seeking adversely to affect the federal income tax attributes of the Notes
as
described in the Prospectus or the Preliminary Prospectus under the heading
“MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES.”
-28-
(r) The
Representative shall have received evidence satisfactory to the Representative
and counsel to the Underwriters that, on or before the Closing Date, UCC-1
financing statements, have been or are being filed in all applicable
governmental offices reflecting (A) the transfer of the interest of HMFC in
the
Receivables, and the proceeds thereof to the Depositor pursuant to the
Receivables Purchase Agreement, (B) the transfer of the interest of the
Depositor in the Receivables Purchase Agreement, the Receivables, and the
proceeds thereof to the Trust pursuant to the Sale and Servicing Agreement,
and
(C) the grant by the Trust to the Indenture Trustee under the Indenture of
a
security interest in the interest of the Trust in the Receivables Purchase
Agreement, the Receivables, the Collateral and the proceeds thereof.
(s) The
Class
A-1 Notes shall have been rated in the highest short-term rating by both
Standard and Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”)
and ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Notes (other than the Class
A-1 Notes) shall have been rated in the highest long-term rating by each of
S&P and Moody’s.
(t) The
Representative shall have received, from each of HMFC and the Depositor, a
certificate executed by a secretary or assistant secretary thereof to which
shall be attached certified copies of the: (i) charter, (ii) by-laws, (iii)
applicable resolutions and (iv) designation of incumbency of each such entity.
(u) The
Representative shall have received evidence of any required Lien releases to
be
filed or recorded (immediately following the Closing Date) with respect to
the
Permitted Liens affecting the Receivables from all applicable creditors of
HMFC,
in form and substance satisfactory to the Representative and counsel to the
Underwriters.
(v) The
Representative shall have received from the Indenture Trustee, a certificate
stating that any information contained in the Statement of Eligibility and
Qualification (Form T-1) filed with the Registration Statement, is true,
accurate and complete.
(w) All
representations and warranties made by or on behalf of HMFC and the Depositor
in
the Transaction Documents to which each is a party are true and correct as
of
the Closing Date.
The
Depositor will provide or cause to be provided to the Representative conformed
copies of such opinions, certificates, letters and documents as the
Representative or counsel to the Underwriters reasonably request.
-29-
SECTION
9. Termination.
This
Agreement shall be subject to termination in the sole discretion of the
Representative by notice to the Depositor given on or prior to the Closing
Date
in the event that either the Depositor or HMFC shall have failed, refused or
been unable to perform all obligations and satisfy all conditions on its part
to
be performed or satisfied hereunder at or prior thereto or, if at or prior
to
the Closing Date, (a) trading in securities generally on the New York Stock
Exchange shall have been suspended or materially limited or minimum or maximum
prices shall have been established by or on, as the case may be, the Securities
and Exchange Commission or the New York Stock Exchange; (b) trading of any
securities of HMFC or the Depositor shall have been suspended on any exchange
or
in any over-the-counter market; (c) a general moratorium on commercial banking
activities shall have been declared by either federal or New York State
authorities; (d) a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States or with respect
to Clearstream or Euroclear systems in Europe and, in the sole judgment of
the
Representative, the effect of any such disruption makes it impractical or
inadvisable to proceed with the offering or the delivery of the Notes as
contemplated by the Prospectus, as amended as of the date hereof; (e)
there
shall have occurred (i) an outbreak or escalation of hostilities between the
United States and any foreign power, (ii) an outbreak or escalation of any
other
insurrection or armed conflict involving the United States, or (iii) any other
calamity or crisis or materially adverse change in general economic, political
or financial conditions having an effect on the U. S. financial markets and,
in
the sole judgment of the Representative, the effect of any such outbreak,
escalation, insurrection, conflict, calamity or crisis makes it impractical
or
inadvisable to proceed with the offering or the delivery of the Notes as
contemplated by the Prospectus, as amended as of the date hereof; (f) any change
in or affecting the Receivables or particularly the business or properties
of
the Trust, the Depositor or HMFC shall have occurred which, in the judgment
of
the Representative, materially impairs the investment quality of the Notes
or
makes it impractical or inadvisable to market the Notes; or (g) any downgrading
in the rating of any debt securities of HMFC, the Depositor, if any, by any
“nationally recognized statistical rating organization” (as defined for purposes
of Rule 436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of any such debt
securities (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating) shall
have occurred. Termination of this Agreement pursuant to this Section 9 shall
be
without liability of any party to any other party except for the liability
of
HMFC in relation to expenses as provided in Sections 7 hereof, the indemnity
provided in Section 10 hereof and any liability arising before or in relation
to
such termination.
SECTION
10. Indemnification
and Contribution.
(a) The
Depositor and HMFC shall, jointly and severally, indemnify and hold harmless
each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to
which such Underwriter or such controlling person may become subject under
the
Securities Act or otherwise, to the extent such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon:
-30-
(i) any
untrue statement or alleged untrue statement made by the Depositor or HMFC
in
Section 2 hereof,
(ii) any
untrue statement or alleged untrue statement of any material fact contained
or
incorporated in the Registration Statement, the Issuer Information or the
Prospectus or any amendment or supplement thereto, or
(iii) the
omission or alleged omission to state in the Registration Statement, the Issuer
Information or the Prospectus or any amendment or supplement thereto a material
fact required to be stated therein or necessary to make the statements therein,
not misleading,
and
will reimburse, as incurred, each such indemnified party for any legal or other
costs or expenses reasonably incurred by it in connection with investigating,
defending against or appearing as a third-party witness in connection with
any
such loss, claim, damage, liability or action; provided, however, that the
Depositor and HMFC will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made
in
the Registration Statement, the Issuer Information or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with the
Underwriters’ Information; provided, further, that the Depositor and HMFC shall
not be liable to any Underwriter or any of the directors, officers, employees
and agents of an Underwriter and each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or Section
20
of the Exchange Act, with respect to any loss, claim, damage or liability that
results from the fact that the Underwriter sold Notes to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale,
if
delivery thereof was required, a copy of the Prospectus or the Prospectus as
then amended or supplemented, whichever is most recent, if the Depositor has
previously furnished copies thereof to such Underwriter within a reasonable
time
period prior to such confirmation. The indemnity provided for in this Section
10
shall be in addition to any liability which the Depositor and HMFC may otherwise
have. The Depositor and HMFC will not, without the prior written consent of
the
Representative, settle or compromise or consent to the entry of any judgment
in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Representative
or
any person who controls the Representative is a party to such claim, action,
suit or proceeding), unless such settlement, compromise or consent (i) includes
an unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding and
(ii) does not include a statement as to or admission of, fault, culpability
or a
failure to act by or on behalf of any Underwriter or controlling person.
(b) Each
Underwriter, severally and not jointly, will indemnify and hold harmless each
of
the Depositor and HMFC, each of its directors and officers and each person,
if
any, who controls the Depositor or HMFC within the meaning of Section 15 of
the
Securities Act or Section 20 of the Exchange Act against any losses, claims,
damages or liabilities to which the Depositor, HMFC or any such director,
officer or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Preliminary
Prospectus, any Free Writing Prospectus or the Prospectus Supplement (or any
amendment or supplement thereto) or (ii) the omission or the alleged omission
to
state in the Preliminary Prospectus, any Free Writing Prospectus or the
Prospectus Supplement (or any amendment or supplement thereto) a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with the Underwriters’ Information, and will
reimburse, as incurred, any legal or other expenses reasonably incurred by
the
Depositor, HMFC or any such director, officer or controlling person in
connection with investigating, defending against or appearing as a third--party
witness in connection with any such loss, claim, damage, liability or any action
in respect thereof. The remedies provided for in this Section 10 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
-31-
(c) In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to paragraph (a) or (b) of this Section 10, such person (for purposes
of this paragraph (c), the “indemnified party”) shall, promptly after receipt by
such party of notice of the commencement of such action, notify the person
against whom such indemnity may be sought (for purposes of this paragraph (c),
the “indemnifying party”), but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party under this Section 10. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and,
to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory
to
such indemnified party (which may be counsel to such indemnifying party if
otherwise reasonably acceptable to the indemnified party); provided, however,
that if the defendants in any such action include both the indemnified party
and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available
to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense of any such action and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 10 for
any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel in each applicable local jurisdiction) in any one
action or separate but substantially similar actions arising out of the same
general allegations or circumstances, designated in writing by the
Representative in the case of paragraph (a) of this Section 10, representing
the
indemnified parties under such paragraph (a) who are parties to such action
or
actions), (ii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party, (iii) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest or (iv) the
indemnifying party has elected to assume the defense of such proceeding but
has
failed within a reasonable time to retain counsel reasonably satisfactory to
the
indemnified parties. All fees and expenses reimbursed pursuant to this paragraph
(c) shall be reimbursed as they are incurred. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not
be
liable for the costs and expenses of any settlement of such action effected
by
such indemnified party without the consent of the indemnifying party. No
indemnifying party shall, without the written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnification
could have been sought hereunder by such indemnified party, unless such
settlement (x) includes an unconditional release of such indemnified party
from
all liability on claims that are the subject matter of such proceeding and
(y)
does not include any statement as to or any admission of fault, culpability
or a
failure to act by or on behalf of any indemnified party.
-32-
(d) In
circumstances in which the indemnity agreement provided for in the preceding
paragraphs of this Section 10 is unavailable or insufficient, for any reason,
to
hold harmless an indemnified party in respect of any losses, claims, damages
or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as
is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from
the
offering of Notes or (ii) if the allocation provided by the foregoing clause
(i)
is not permitted by applicable law, not only such relative benefits but also
the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
or
alleged statements or omissions that resulted in such losses, claims, damages
or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Depositor and
HMFC on the one hand and the Underwriters on the other shall be deemed to be
in
the same proportion as the total proceeds from the offering of the Notes (before
deducting expenses) received by the Depositor and HMFC (including for such
purpose, the value of the Certificates) bear to the total discounts and
commissions received by the Underwriters (the “Spread”) as set forth in the
Prospectus. The relative fault of the parties shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Depositor, HMFC or the Underwriters,
the
parties’ relative intents, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Depositor, HMFC and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if
the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to above in this paragraph (d). Notwithstanding any other provision
of
this paragraph (d), no Underwriter shall be obligated to make contributions
hereunder that in the aggregate exceed the amount by which the Spread received
by it in the initial offering of such Notes, less the aggregate amount of any
damages that such Underwriter has otherwise been required to pay in respect
of
the same or any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations to contribute
hereunder are several in proportion to their respective principal amount of
Notes they have purchased hereunder, and not joint. For purposes of this
paragraph (d), each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and each director, officer, employee and agent of an Underwriter shall have
the
same rights to contribution as such Underwriter, and each director of the
Depositor and HMFC, each officer of the Depositor and HMFC and each person,
if
any, who controls the Depositor and HMFC within the meaning of Section 15 of
the
Securities Act or Section 20 of the Exchange Act, shall have the same rights
to
contribution as the Depositor and HMFC.
-33-
SECTION
11. Defaults
by an Underwriter.
If any
one or more Underwriter(s) fail(s) to purchase and pay for any of the Notes
agreed to be purchased by such Underwriter(s) hereunder, and such failure
constitutes a default in the performance of its or their obligations under
this
Agreement, the remaining Underwriter(s) shall be obligated severally to take
up
and pay for (in the respective proportions that the amount of Notes set forth
opposite their names in Schedule I bears to the aggregate amount of Notes set
forth opposite the names of all the remaining Underwriter(s)) the Notes that
the
defaulting Underwriter(s) agreed but failed to purchase; provided, however,
that
if the aggregate amount of Notes that the defaulting Underwriter(s) agreed
but
failed to purchase exceeds 10% of the aggregate principal amount of Notes,
the
remaining Underwriter(s) shall have the right to purchase all, but shall not
be
under any obligation to purchase any, of the Notes, and if such non-defaulting
Underwriter(s) do not purchase all the Notes, this Agreement will terminate
without liability to any non-defaulting Underwriter. In the event of a default
by any Underwriter as set forth in this paragraph, the Closing Date shall be
postponed for such period, not exceeding seven days, as the remaining
Underwriter(s) shall determine in order that the required changes in the
Prospectus Supplement or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter(s)
of any liability to the Depositor, HMFC, their Affiliates and any non-defaulting
Underwriter(s) for damages occasioned by its default hereunder.
SECTION
12. Survival
of Representations and Obligations.
The
respective indemnities, agreements, representations, warranties and other
statements set forth in or made pursuant to this Agreement or contained in
certificates of officers submitted pursuant hereto shall remain operative and
in
full force and effect, regardless of any investigation or statement as to the
results thereof, and will survive delivery of and payment for the Notes. If
for
any reason the purchase of the Notes by the Underwriters is not consummated,
each of the Depositor and HMFC shall remain responsible for the expenses to
be
paid or reimbursed pursuant to Section 7 and the obligations pursuant to Section
10 shall remain in effect. If for any reason the purchase of the Notes by the
Underwriters is not consummated (other than as a result of any Underwriters’
breach under Section 4 of this Agreement), the Depositor and HMFC will reimburse
the Underwriters severally, upon demand, for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) incurred by any
Underwriter in connection with the offering of the Notes.
SECTION
13. Obligations
Solely Contractual in Nature.
Each of
the Depositor and HMFC acknowledges and agrees that the Underwriters'
responsibility to the Depositor and HMFC is solely contractual in nature and
that none of the Underwriters or their affiliates shall be acting in a fiduciary
or advisory capacity, or otherwise owe any fiduciary or advisory duty, to the
Depositor or HMFC in connection with the offering of the Notes and the other
transactions contemplated by this Agreement.
-34-
SECTION
14. Notices.
Any
notice or notification in any form to be given under this Agreement may be
delivered in person or sent by mail, facsimile or telephone (subject in the
case
of a communication by telephone to confirmation by facsimile) addressed
to:
|
in
the case of the Depositor:
|
|
|
Hyundai
ABS Funding Corporation
|
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
Attention:
Vice President; Secretary
|
|
|
in
the case of HMFC:
|
|
|
Hyundai
Motor Finance Company
|
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Facsimile
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
Attention:
Vice President; Finance
|
|
|
in
the case of the Representative:
|
|
|
Banc
of America Securities LLC
|
|
|
Hearst
Tower
|
|
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
|
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
Attention:
▇▇▇▇ ▇▇▇▇▇
|
Any
such notice shall take effect, in the case of delivery, at the time of delivery
and, in the case of facsimile, at the time of dispatch.
SECTION
15. Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto,
their respective successors and agents, and the directors, officers and control
persons referred to in Section 10, and no other person will have any rights
or
obligations hereunder.
SECTION
16. The
Representative.
The
Representative represents and warrants to the Depositor and HMFC that it is
duly
authorized to enter into this Agreement. The Representative shall act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters. In all dealings hereunder, the parties hereto shall be entitled
to
act and rely upon any statement, request, notice or agreement on behalf of
any
Underwriter made or given by the Representative.
-35-
SECTION
17. Miscellaneous.
(a) Time
shall be of the essence of this Agreement.
(b) The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect, the meaning or interpretation of this
Agreement.
(c) For
purposes of this Agreement, (a) “business day” means any day on which the New
York Stock Exchange is open for trading, and (b) each of “subsidiary” and
“Affiliate” has the meaning set forth in Rule 405 under the Securities Act.
(d) This
Agreement may be executed in any number of counterparts, all of which, taken
together, shall constitute one and the same Agreement and any party may enter
into this Agreement by executing a counterpart.
(e) This
Agreement shall inure to the benefit of and shall be binding upon the several
Underwriters, the Depositor, HMFC and their respective successors and legal
representatives, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons
and
for the benefit of no other person, except that (i) the indemnities of the
Depositor and HMFC contained in Section 10 hereof shall also be for the benefit
of any person or persons who control any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and (ii)
the
indemnities of the Underwriters contained in Section 10 hereof shall also be
for
the benefit of the directors of the Depositor and HMFC, the officers of the
Depositor and HMFC and any person or persons who control the Depositor or HMFC
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act. No purchaser of Notes from any Underwriter shall be deemed a
successor because of such purchase.
(f) The
respective representations, warranties, agreements, covenants, indemnities
and
other statements of the Depositor and HMFC, its officers and the several
Underwriters set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement shall remain in full force and effect,
regardless of (i) any investigation made by or on behalf of the Depositor or
HMFC, any of its officers, directors, employees or agents, any Underwriter
or
any controlling person referred to in Section 10 hereof and (ii) delivery of
and
payment for the Notes. The respective agreements, covenants, indemnities and
other statements set forth in Sections 6 and 10 hereof shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement.
SECTION
18. Severability.
It is
the desire and intent of the parties that the provisions of this Agreement
be
enforced to the fullest extent permissible under the law and public policies
applied in each jurisdiction in which enforcement is sought. Accordingly, in
the
event that any provision of this Agreement would be held in any jurisdiction
to
be invalid, prohibited or unenforceable for any reason, such provision, as
to
such jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
such
provision in any other jurisdiction.
-36-
SECTION
19. Governing
Law.
THE
VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS
SET
FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO
CONFLICTS OF LAWS.
-37-
If
the foregoing is in accordance with your understanding, please sign and return
to us five counterparts hereof, and upon the acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Depositor
and HMFC.
Very
truly yours,
HYUNDAI
ABS FUNDING CORPORATION
By:
/s/
Min ▇▇▇ ▇▇▇▇▇
Park
Name:
Min
▇▇▇ ▇▇▇▇▇ Park
Title:
Vice President and Secretary
HYUNDAI
MOTOR FINANCE COMPANY
By:
/s/
▇▇▇ ▇▇▇▇
Ko
Name:
▇▇▇
▇▇▇▇ Ko
Title:
Treasurer
The
foregoing Agreement is hereby confirmed and accepted as of the date first above
written.
BANC
OF AMERICA SECURITIES LLC,
on
behalf of itself and as Representative of the
several
Underwriters
By:
/s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Managing Director
-38-
SCHEDULE
I
|
Underwriter
|
Class
A-1 Notes
|
Class
A-2 Notes
|
Class
A-3 Notes
|
Class
A-4 Notes
|
|
Banc
of America Securities LLC
|
53,000,000
|
59,666,667
|
57,000,000
|
34,514,000
|
|
RBS
Greenwich Capital
|
53,000,000
|
59,666,667
|
57,000,000
|
34,514,000
|
|
SG
Americas Securities, LLC
|
53,000,000
|
59,666,666
|
57,000,000
|
34,514,000
|
|
Total
|
159,000,000
|
179,000,000
|
171,000,000
|
103,542,000
|
-39-
SCHEDULE
II
|
Security
|
Original
Principal
Balance
$
|
Price
$
|
|
Class
A-1 Notes
|
159,000,000
|
158,809,200
|
|
Class
A-2 Notes
|
179,000,000
|
178,723,928
|
|
Class
A-3 Notes
|
171,000,000
|
170,689,977
|
|
Class
A-4 Notes
|
103,542,000
|
103,330,433
|
|
Total
Price to Depositor
|
611,553,538
|
-40-
SCHEDULE
III
LIST
OF OFFICES TO FILE FINANCING STATEMENTS
|
1.
|
HMFC
Financing Statements - California
|
|
2.
|
Depositor
Financing Statements - Delaware
|
-41-
SCHEDULE
IV
LIST
OF PERMITTED LIENS
|
1.
|
Second
Amended and Restated Receivables Purchase Agreement, dated as of
July 23,
2002, as amended, among Hyundai BC Funding Corporation and the Purchasers
and Agents parties thereto.
|
|
2.
|
Purchase
and Sale Agreement, dated as of January 17, 2000, as amended, between
Hyundai Motor Finance Company, as seller, and Hyundai BC Funding
Corporation, as purchaser.
|
-42-
ANNEX
A
REPRESENTATIONS
AND AGREEMENTS OF THE UNDERWRITERS
(a) Each
Underwriter represents and agrees that:
(i) it
has
only communicated or caused to be communicated and will only communicate or
cause to be communicated an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services and Markets
▇▇▇ ▇▇▇▇, as amended (“FSMA”)) received by it in connection with the issue or
sale of the Notes in circumstances in which Section 21(1) of the FSMA does
not
apply to the Issuer; and
(ii) it
has
complied and will comply with all applicable provisions of the FSMA with respect
to anything done by it in relation to the Notes in, from or otherwise involving
the United Kingdom.
(b) In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), each
Underwriter represents and agrees that with effect from and including the date
on which the Prospectus Directive is implemented in that Relevant Member State
(the “Relevant Implementation Date”), each Underwriter has not made and will not
make an offer of Notes to the public in that Relevant Member State prior to
the
publication of a prospectus in relation to Notes which has been approved by
the
competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant
Implementation Date, make an offer of Underwritten Notes to the public in that
Relevant Member State at any time:
(i) to
legal
entities which are authorized or regulated to operate in financial markets
or,
if not so authorized or regulated, whose corporate purpose is solely to invest
in securities;
(ii) to
any legal entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more
than
€43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in
its last annual or consolidated accounts; or
(iii) in
any other circumstances which do not require the publication by the Issuer
of a
prospectus pursuant to Article 3 of the Prospectus Directive.
For
purposes of this Annex A, the expression an “offer of Notes to the public” in
relation to any notes in any Relevant Member State means the communication
in
any form and by any means of sufficient information on the terms of the offer
and the Notes to be offered so as to enable an investor to decide to purchase
or
subscribe the Notes, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State, and the
expression “Prospectus Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
-43-