EXHIBIT 10.1
RECEIVABLES PURCHASE
AGREEMENT
between
HYUNDAI CAPITAL AMERICA,
as Seller,
and
HYUNDAI ABS FUNDING
CORPORATION,
as Depositor
Dated as of September 11,
2009
TABLE
OF CONTENTS
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ARTICLE
I.
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CERTAIN
DEFINITIONS
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ARTICLE
II.
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CONVEYANCE OF
RECEIVABLES
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Conveyance of
Receivables
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3
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4
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ARTICLE
III.
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REPRESENTATIONS
AND WARRANTIES
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Representations
and Warranties of Depositor
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4
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Representations
and Warranties of Seller
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5
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ARTICLE
IV.
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CONDITIONS
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Conditions to
Obligation of the Depositor
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12
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Conditions to
Obligation of the Seller
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13
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ARTICLE
V.
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COVENANTS OF
THE SELLER
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Protection of
Right, Title and Interest
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13
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14
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14
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14
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ARTICLE
VI.
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INDEMNIFICATION
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15
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ARTICLE
VII.
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MISCELLANEOUS
PROVISIONS
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15
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15
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Depositor
Assignment of Repurchased Receivables
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16
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16
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16
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16
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17
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17
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Representations
of the Seller and the Depositor
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17
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17
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Headings and
Cross-References
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17
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17
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SCHEDULE
I
|
Schedule of
Receivables
|
I-1
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SCHEDULE
II
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Receivable File
Schedule
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II-1
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SCHEDULE
III
|
Reconveyance
Agreements
|
III-1
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SCHEDULE
IV
|
Conduit
Documents
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IV-1
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RECEIVABLES PURCHASE AGREEMENT dated as of
September 11, 2009 between HYUNDAI CAPITAL AMERICA (formerly known
as Hyundai Motor Finance Company), a California corporation, as
seller (the “ Seller ”), and HYUNDAI ABS FUNDING
CORPORATION, a Delaware corporation, as depositor (the “
Depositor ”).
RECITALS
WHEREAS, in the regular course of its business,
the Seller has purchased certain motor vehicle retail installment
sale contracts secured by new and used automobiles, light-duty
trucks, and minivans from motor vehicle dealers;
WHEREAS, the Seller and the Depositor wish to
set forth the terms pursuant to which such contracts are to be sold
by the Seller to the Depositor; and
WHEREAS, the Depositor intends, concurrently
with its purchases from time to time hereunder, to convey all of
its right, title and interest in and to $1,550,268,072.20 of such
contracts to Hyundai Auto Receivables Trust 2009-A (the “
Issuer ”) pursuant to a Sale and Servicing Agreement
dated as of September 11, 2009 (the “ Sale and Servicing
Agreement ”), by and among the Issuer, the Depositor, the
Seller, Hyundai Capital America, as Servicer and Citibank, N.A., as
Indenture Trustee, and the Issuer intends to pledge all of its
right, title and interest in such contracts to the Indenture
Trustee pursuant to the Indenture.
NOW, THEREFORE, in consideration of the
foregoing, other good and valuable consideration and the mutual
terms and covenants contained herein, the parties hereto agree as
follows:
ARTICLE I.
Certain
Definitions
Terms not defined in this Agreement shall have
the meanings assigned thereto in the Sale and Servicing Agreement
or the Indenture. As used in this Agreement, the
following terms shall, unless the context otherwise requires, have
the following meanings (such meanings to be equally applicable to
the singular and plural forms of the terms defined):
“ Agreement ” shall mean this
Receivables Purchase Agreement, as the same may be amended and
supplemented from time to time.
“ Closing Date ” shall mean
September 11, 2009.
“ Conduit Documents ” shall
mean the documents listed on Schedule IV hereto.
“ Depositor ” shall mean
Hyundai ABS Funding Corporation, a Delaware corporation,
its successors and assigns.
“ Indemnified Losses ” shall
have the meaning specified in Section 6.01.
“ Indemnified Party ” shall
have the meaning specified in Section 6.01.
“ Indenture ” means the
Indenture, dated as of September 11, 2009, between the Issuer and
the Indenture Trustee, as amended, supplemented, amended and
restated or otherwise modified from time to time.
“ Lien Certificate ” means
with respect to a Financed Vehicle, an original certificate of
title, certificate of lien or other notification issued by the
Registrar of Titles of the applicable state to a secured party
which indicates that the lien of the secured party on the Financed
Vehicle is recorded on the original certificate of
title. In any jurisdiction in which the original
certificate of title is required to be given to the Obligor, the
term “ Lien Certificate ” shall mean only a
certificate or notification issued to a secured party.
“ Purchase Price ” means,
with respect to any Receivable, an amount equal to the Principal
Balance of such Receivable as of the Cutoff Date.
“ Receivable ” shall mean any
Contract listed on Schedule I hereto (which Schedule may be in the
form of microfiche).
“ Reconveyance Documents ”
shall mean the documents listed on Schedule III hereto.
“ Registrar of Titles ” means
with respect to any state, the governmental agency or body
responsible for the registration of, and the issuance of
certificates of title relating to, motor vehicles and liens
thereon.
“ Repurchase Event ” shall
have the meaning specified in Section 7.02.
“ Sale and Servicing Agreement
” shall have the meaning set forth in the
recitals.
“ Schedule of Receivables ”
shall mean the list of Receivables annexed hereto as
Schedule I.
“ Seller ” shall mean Hyundai
Capital America, a California corporation, its successors and
assigns.
“ Transfer Date ” shall mean
the Cutoff Date.
“ Transfer Tax ” shall have
the meaning specified in Section 3.02(b)(xlvi).
“ Underwriting Agreement ”
means the Underwriting Agreement dated September 2, 2009, relating
to Hyundai Auto Receivables Trust 2009-A among the Depositor, the
Seller and Banc of America Securities LLC, on behalf of itself and
as Representative of the Several Underwriters, as amended,
supplemented, amended and restated or otherwise modified from time
to time.
ARTICLE II.
Conveyance of
Receivables
Section 2.01 Conveyance of
Receivables .
(a) In consideration of the
Depositor’s delivery to the Seller on the Closing Date of
approximately $1,306,519,241.96 and a capital contribution by the
Seller to the Depositor of approximately $243,748,830.24 aggregate
principal amount of the Receivables, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Depositor
without recourse (subject to the obligations of the Seller herein)
all right, title, and interest of the Seller in and to:
(i) the Receivables and all moneys
received thereon on or after the Cutoff Date;
(ii) the security interests in the
Financed Vehicles and any accessions thereto granted by Obligors
pursuant to the Receivables and any other interest of the Seller in
such Financed Vehicles;
(iii) any Liquidation Proceeds and
any other proceeds with respect to the Receivables pursuant to the
Hyundai Assurance Program or from claims on any physical damage,
credit life or disability insurance policies covering Financed
Vehicles or Obligors, including any vendor’s single interest
or other collateral protection insurance policy;
(iv) any property that shall have
secured any Receivable and that shall have been acquired by or on
behalf of the Seller;
(v) all documents and other items
contained in the Receivable Files;
(vi) all proceeds from any Receivable
repurchased by a Dealer pursuant to a Dealer Agreement;
and
(vii) the proceeds of any and all of
the foregoing.
The Seller and
the Depositor agree that the purchase price for the Receivables
sold by the Seller to the Depositor represents fair market value
for the Receivables. The Depositor shall make payment in
respect of the Purchase Price upon demand by the Seller.
(b) [Reserved] .
(c) [ Reserved ].
(d) The Seller and the Depositor
intend that the transfer of assets by the Seller to the Depositor
pursuant to this Agreement be a sale of the ownership interest in
such assets to the Depositor, rather than the mere granting of a
security interest to secure a borrowing. In the event,
however, that such transfer is deemed not to be a sale but to be of
a mere security interest to secure a borrowing or such transfer is
otherwise not effective to sell the Receivables and other property
described in Section 2.01(a) hereof, the Seller shall be deemed to
have hereby granted to the Depositor a perfected first priority
security interest in all such assets, and this Agreement shall
constitute a security agreement under applicable
law. Pursuant to the Sale and Servicing Agreement and
Section 7.04 hereof, the Depositor may sell, transfer and assign to
the Issuer (i) all or any portion of the assets assigned to
the Depositor hereunder, (ii) all or any portion of the
Depositor’s rights against the Seller under this Agreement
and (iii) all proceeds thereof. Such assignment may be
made by the Depositor with or without an assignment by the
Depositor of its rights under this Agreement, and without further
notice to or acknowledgement from the Seller. The Seller
waives, to the extent permitted under applicable law, all claims,
causes of action and remedies, whether legal or equitable
(including any right of setoff), against the Depositor or any
assignee of the Depositor relating to such action by the Depositor
in connection with the transactions contemplated by the Sale and
Servicing Agreement.
Section 2.02 The Closing
. The sale and purchase of the Receivables shall take
place at a closing at the offices of Mayer Brown LLP, 71 South
Wacker Drive, Chicago, Illinois 60606, on the Closing Date,
simultaneously with the closing under (a) the Sale and Servicing
Agreement, (b) the Indenture and (c) the Trust
Agreement.
ARTICLE III.
Representations and
Warranties
Section 3.01 Representations and
Warranties of Depositor . The Depositor hereby
represents and warrants as follows to the Seller and the Indenture
Trustee as of the date hereof and the Transfer Date:
(a) Organization and Good
Standing . The Depositor has been duly organized and
is validly existing as a corporation in good standing under the
laws of the State of Delaware, with the corporate power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted, including the corporate power, authority and legal right
to acquire and sell the Receivables.
(b) Power and Authority
. The Depositor has the power and authority to execute
and deliver this Agreement and to carry out its terms; and the
execution, delivery and performance of this Agreement have been
duly authorized by the Depositor by all necessary corporate
action.
(c) No Violation
. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of
time or both) a default under, the charter or bylaws of the
Depositor, or any indenture, agreement or other instrument to which
the Depositor is a party or by which it is bound. There
shall be no breach of the representations and warranties in this
paragraph resulting from any of the foregoing breaches, violations,
Liens or other matters which, individually or in the aggregate,
would not materially and adversely affect the Depositor’s
ability to perform its obligations under the Basic Documents or the
consummation of the transactions as contemplated by the Basic
Documents.
Section 3.02 Representations and
Warranties of Seller .
(a) The Seller hereby represents and
warrants as follows to the Depositor and the Indenture Trustee as
of the date hereof and as of the Transfer Date:
(i) Organization and Good
Standing . The Seller has been duly organized and is
validly existing as a corporation in good standing under the laws
of the State of California, with the corporate power and authority
to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted.
(ii) Due Qualification
. The Seller is duly qualified to do business as a
foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions where the
failure to do so would materially and adversely affect the
Seller’s ability to acquire, own and service the
Receivables.
(iii) Power and Authority
. The Seller has the power and authority to execute and
deliver this Agreement and the other Basic Documents to which it is
a party and to carry out their respective terms; the Seller had at
all relevant times, and has, full power, authority and legal right
to sell, transfer and assign the property sold, transferred and
assigned to the Depositor hereby and has duly authorized such sale,
transfer and assignment to the Depositor by all necessary corporate
action; and the execution, delivery and performance of this
Agreement and the other Basic Documents to which the Seller is a
party have been duly authorized by the Seller by all necessary
corporate action.
(iv) No Violation
. The consummation of the transactions contemplated by
this Agreement and the other Basic Documents to which the Seller is
a party and the fulfillment of their respective terms do not
conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of
time or both) a default under, the articles of incorporation or
bylaws of the Seller, or any indenture, agreement or other
instrument to which the Seller is a party or by which it is bound,
or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement
or other instrument (other than this Agreement), or violate any law
or, to the best of the Seller’s knowledge, any order, rule or
regulation applicable to the Seller of any court or of any federal
or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or
its properties. There shall be no breach of the
representations and warranties in this paragraph resulting from any
of the foregoing breaches, violations, Liens or other matters
which, individually or in the aggregate, would not materially and
adversely affect the Seller’s ability to perform its
obligations under the Basic Documents or the consummation of the
transactions as contemplated by the Basic Documents.
(v) No Proceedings
. There are no proceedings or investigations pending or,
to the Seller’s knowledge, threatened against the Seller
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or
its properties (A) asserting the invalidity of this Agreement or
any other Basic Document to which the Seller is a party, (B)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any other Basic Document to which
the Seller is a party or (C) seeking any determination or ruling
that would materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability
of, this Agreement or any other Basic Document to which the Seller
is a party.
(vi) Valid Sale, Binding
Obligation . This Agreement and the other Basic
Documents to which the Seller is a party, when duly executed and
delivered by the other parties hereto and thereto, shall constitute
legal, valid and binding obligations of the Seller, enforceable
against the Seller in accordance with their respective terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization and similar laws now or hereafter in
effect relating to or affecting creditors’ rights generally
and to general principles of equity (whether applied in a
proceeding at law or in equity).
(vii) Chief Executive Office
. The chief executive office of the Seller is located at
3161 Michelson Drive, Suite 1900, Irvine, California
92612.
(viii) No Consents
. The Seller is not required to obtain the consent of
any other party or any consent, license, approval, registration,
authorization, or declaration of or with any governmental
authority, bureau or agency in connection with the execution,
delivery, performance, validity, or enforceability of this
Agreement or any other Basic Document to which it is a party that
has not already been obtained, other than (A) UCC filings and (B)
consents, licenses, approvals, registrations, authorizations or
declarations which, if not obtained or made, would not have a
material adverse affect on the enforceability or collectibility of
the Receivables or would not materially and adversely
affect the ability of the Depositor to perform its obligations
under the Basic Documents.
(ix) Ordinary Course
. The transactions contemplated by this Agreement and
the other Basic Documents to which the Seller is a party are in the
ordinary course of the Seller’s business.
(x) Solvency . The
Seller is not insolvent, nor will the Seller be made insolvent by
the transfer of the Receivables, nor does the Seller contemplate
any pending insolvency.
(xii) Creditors
. The Seller represents and warrants that it did not
sell the Receivables to the Depositor with any intent to hinder,
delay or defraud any of its creditors.
(xiii) No Notice
. The Seller represents and warrants that it acquired
title to the Receivables in good faith, without notice of any
adverse claim.
(xiv) Bulk Transfer
. The Seller represents and warrants that the transfer,
assignment and conveyance of the Receivables by the Seller pursuant
to this Agreement are not subject to the bulk transfer laws or any
similar statutory provisions in effect in any applicable
jurisdiction.
(b) The Seller makes the following
representations and warranties with respect to the Receivables, on
which the Depositor relies in accepting the Receivables and in
transferring the Receivables to the Issuer under the Sale and
Servicing Agreement, and on which the Issuer relies in pledging the
same to the Indenture Trustee. Such representations and
warranties speak as of the execution and delivery of this Agreement
or as of the Cutoff Date as applicable, but shall survive the sale,
transfer and assignment of the Receivables to the Depositor, the
subsequent sale, transfer and assignment of the Receivables by the
Depositor to the Issuer pursuant to the Sale and Servicing
Agreement and the pledge of the Receivables by the Issuer to the
Indenture Trustee pursuant to the Indenture.
(i) Characteristics of
Receivables . Each Receivable (A) was originated in
the United States of America by a Dealer located in the United
States of America for the retail sale of a Financed Vehicle in the
ordinary course of such Dealer’s business and satisfied the
Seller’s Credit and Collection Policy as of the date of
origination of the related Receivable, is payable in United States
dollars, has been fully and properly executed by the parties
thereto, has been purchased by the Seller from such Dealer under an
existing Dealer Agreement and has been validly assigned by such
Dealer to the Seller, (B) has created or shall create a valid,
subsisting and enforceable first priority security interest in
favor of the Seller in the Financed Vehicle, which security
interest is assignable by the Seller to the Depositor, by the
Depositor to the Issuer, and by the Issuer to the Indenture
Trustee, (C) contains customary and enforceable provisions such
that the rights and remedies of the holder thereof are adequate for
realization against the collateral of the benefits of the security,
(D) provides for fixed level monthly payments (provided that the
payment in the last month of the term of the Receivable may be
insignificantly different from the level payments) that fully
amortize the Amount Financed by maturity and yield interest at the
APR, (E) amortizes using the simple interest method and (F) has an
Obligor which is not an affiliate of the Seller, is not a
government or governmental subdivision or agency and is not shown
on the Servicer’s records as a debtor in pending bankruptcy
proceeding.
(ii) Compliance with Law
. Each Receivable and the sale of the related Financed
Vehicle complied at the time it was originated or made, and at the
time of execution of this Agreement complies, in all material
respects with all requirements of applicable federal, state and
local laws, rulings and regulations thereunder, including usury
laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Billing Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal
Trade Commission Act, the Magnuson-Moss Warranty Act, the Federal
Reserve Board’s Regulations “B” and
“Z”, the Servicemembers Civil Relief Act, the
Gramm-Leach-Bliley Act, state adaptations of the National Consumer
Act and of the Uniform Consumer Credit Code, and other consumer
credit laws and equal credit opportunity and disclosure
laws.
(iii) Binding Obligation
. Each Receivable represents the genuine, legal, valid
and binding payment obligation of the Obligor thereon, enforceable
by the holder thereof in accordance with its terms, except
(A)
