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Exhibit 10.2
EXECUTION COPY
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RECEIVABLES PURCHASE AGREEMENT
between
HYUNDAI MOTOR FINANCE COMPANY,
as Seller,
and
HYUNDAI ABS FUNDING CORPORATION,
as Depositor
Dated as of September 1, 2004
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TABLE OF CONTENTS
ARTICLE I
Certain Definitions
ARTICLE II
Conveyance of Receivables
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Section 2.01. Conveyance of
Receivables......................................3
Section 2.02. The
Closing....................................................4
ARTICLE III
Representations and Warranties
Section 3.01. Representations and
Warranties of Depositor....................4
Section 3.02. Representations and
Warranties of Seller.......................5
ARTICLE IV
Conditions
Section 4.01. Conditions to Obligation of
the Depositor.....................14
Section 4.02. Conditions to Obligation of
the Seller........................14
ARTICLE V
Covenants of the Seller
Section 5.01. Protection of Right, Title
and Interest.......................15
Section 5.02. Other Liens or
Interests......................................15
Section 5.03. Costs and
Expenses............................................15
Section 5.04. Hold
Harmless.................................................15
ARTICLE VI
Indemnification
Section 6.01.
Indemnification...............................................16
ARTICLE VII
Miscellaneous Provisions
Section 7.01. Obligations of
Seller.........................................16
Section 7.02. Repurchase
Events.............................................16
Section 7.03. Depositor Assignment of
Repurchased Receivables...............17
Section 7.04. Transfer to the
Issuer........................................17
Section 7.05.
Amendment.....................................................17
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Section 7.06.
Waivers.......................................................17
Section 7.07.
Notices.......................................................18
Section 7.08. Costs and
Expenses............................................18
Section 7.09. Representations of the
Seller and the Depositor...............18
Section 7.10. Confidential
Information......................................18
Section 7.11. Headings and
Cross-References.................................18
Section 7.12. GOVERNING
LAW.................................................18
Section 7.13.
Counterparts..................................................18
Section 7.14. Third Party
Beneficiary.......................................19
Section 7.15. No
Proceedings................................................19
Section 7.16. Nonpetition
Covenant..........................................19
EXHIBIT A
Subordinated Promissory Note...............................
A-1
SCHEDULE I Schedule
of Receivables.................................... I-1
SCHEDULE II Receivable File
Schedule................................... II-1
SCHEDULE III Reconveyance
Documents.....................................III-1
SCHEDULE IV Conduit
Documents.......................................... IV-1
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RECEIVABLES PURCHASE AGREEMENT dated as of September 1, 2004
between
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 and light-duty trucks
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
$807,850,711.24 of such contracts to
Hyundai Auto Receivables Trust 2004-A (the
"Issuer") pursuant to a Sale and Servicing
Agreement dated as of September 1,
2004 (the "Sale and Servicing Agreement"),
by and among the Issuer, the
Depositor, the Seller, Hyundai Motor
Finance Company, 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 1, 2004.
"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.
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"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 Motor Finance Company, a California
corporation, its successors and
assigns.
"Subordinated Promissory Note" shall have the meaning specified
in
Section 2.01(a).
"Transfer Date" shall mean the Closing Date.
"Transfer Tax" shall have the meaning specified in Section
3.02(b)(xlvi).
"Underwriting Agreement" means the Underwriting Agreement dated
August
26, 2004, relating to Hyundai Auto
Receivables Trust 2004-A among the Depositor,
HMFC 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.
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ARTICLE II
Conveyance of Receivables
Section 2.01.
Conveyance of Receivables.
(a) In
consideration of the Depositor's delivery to or upon the order
of
the Seller on the Closing Date of
$739,076,414.87 and a subordinated revolving
credit note of the Depositor in the form of
Exhibit A attached hereto (the
"Subordinated Promissory Note") in a
principal amount equal to $68,774,296.37,
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
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 Depositor shall make payment in respect
of the Purchase Price upon demand by
the Seller.
(b) The
outstanding principal amount of the Subordinated Promissory
Note
shall bear interest at a rate per annum
equal to the prime rate as published on
such day (or, if not then published, on the
most recently preceding day) in The
Wall Street Journal as the "Prime Rate."
Changes in the rate payable hereunder
shall be effective on each day on which a
change in the Prime Rate is published.
On each Payment Date, the Depositor shall
repay the accrued interest on, and
principal amount of, the Subordinated
Promissory Note as and to the extent of
any amounts received by the Depositor from
proceeds of collections of
Receivables, subject, however, to the prior
right of the Issuer to receive
payments out of the collections pursuant to
this Agreement.
(c)
[Reserved]
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(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
Latham & Watkins LLP, 885 Third
Avenue, Suite 1000, New York, New York
10022, 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
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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.
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 in which the ownership or
lease of
property or the conduct of its business shall require such
qualifications.
(iii) Power and Authority. The Seller has the power and authority
to
execute and
deliver this Agreement and the other Basic Documents to which
it is a party
and to carry out their respective terms; the Seller had at
all relevant
times, and has, full power, authority and legal right to sell,
transfer and
assign the property sold, transferred and assigned to the
Depositor hereby
and has duly authorized such sale, transfer and assignment
to the Depositor
by all necessary corporate action; and the execution,
delivery and
performance of this Agreement and the other Basic Documents to
which the Seller
is a party have been duly authorized by the Seller by all
necessary
corporate action.
(iv) No Violation. The consummation of the transactions
contemplated
by this
Agreement and the other Basic Documents to which the Seller is
a
party and the
fulfillment of their respective terms do not conflict with,
result in any
breach of any of the terms and provisions of, or constitute
(with or without
notice or lapse of time or both) a default under, the
articles of
incorporation or bylaws of the Seller, or any indenture,
agreement or
other instrument to which the Seller is a party or by which it
is bound, or
result in the creation or imposition of any Lien upon any of
its properties
pursuant to the terms of any such indenture, agreement or
other instrument
(other than this Agreement), or violate any law or, to the
best of the
Seller's knowledge, any order, rule or regulation applicable to
the Seller of
any court or of any federal or state regulatory body,
administrative
agency or other governmental instrumentality having
jurisdiction
over the Seller or its properties.
(v) No Proceedings. There are no proceedings or investigations
pending
or, to the
Seller's knowledge, threatened against the Seller before any
court,
regulatory body, administrative agency or other governmental
instrumentality
having jurisdiction over the Seller or its properties (i)
asserting the
invalidity of this Agreement or any other Basic Document to
which the Seller
is a party, (ii) seeking to prevent the consummation of
any of the
transactions contemplated by this Agreement or any other Basic
Document to
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which the Seller
is a party or (iii) seeking any determination or ruling
that might
materially and adversely affect the performance by the Seller
of
its obligations
under, or the validity or enforceability of, this Agreement
or any other
Basic Document to which the Seller is a party.
(vi) Valid Sale, Binding Obligation. This Agreement and the
other
Basic Documents
to which the Seller is a party, when duly executed and
delivered by the
other parties hereto and thereto, shall constitute legal,
valid and
binding obligations of the Seller, enforceable against the
Seller
in accordance
with their respective terms, except as the enforceability
thereof may be
limited by bankruptcy, insolvency, reorganization and
similar laws now
or hereafter in effect relating to or affecting creditors'
rights generally
and to general principles of equity (whether applied in a
proceeding at
law or in equity).
(vii) Chief Executive Office. The chief executive office of the
Seller
is located at
10550 Talbert Avenue, Fountain Valley, California 92708.
(viii) No Consents. The Seller is not required to obtain the
consent
of any other
party or any consent, license, approval, registration,
authorization,
or declaration of or with any governmental authority, bureau
or agency in
connection with the execution, delivery, performance,
validity, or
enforceability of this Agreement or any other Basic Document
to which it is a
party that has not already been obtained.
(ix) Seller Information. No certificate of an officer, statement
or
document
furnished in writing or report delivered pursuant to the terms
hereof by the
Seller contains any untrue statement of a material fact or
omits to state
any material fact necessary to make the certificate,
statement,
document or report not misleading.
(x) Ordinary Course. The transactions contemplated by this
Agreement
and the other
Basic Documents to which the Seller is a party are in the
ordinary course
of the Seller's business.
(xi) Solvency. The Seller is not insolvent, nor will the Seller
be
made insolvent
by the transfer of the Receivables, nor does the Seller
contemplate any
pending insolvency.
(xii) Legal Compliance. The Seller is not in violation of, and
the
execution and
delivery of this Agreement and the other Basic Documents to
which the Seller
is a party by it and its performance and compliance with
the terms of
this Agreement and the other Basic Documents to which the
Seller is a
party will not constitute a violation with respect to, any
order or decree
of any court or any order or regulation of any federal,
state, municipal
or governmental agency having jurisdiction, which
violation would
materially and adversely affect the Seller's condition
(financial or
otherwise) or operations or any of the Seller's properties or
materially and
adversely affect the performance of any of its duties under
the Basic
Documents.
(xiii) Creditors. The Seller represents and warrants that it did
not
sell the
Receivables to the Depositor with any intent to hinder, delay
or
defraud any of
its creditors.
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(xiv) No Notice. The Seller represents and warrants that it
acquired
title to the
Receivables in good faith, without notice of any adverse
claim.
(xv) Bulk Transfer. The Seller represents and warrants that the
transfer,
assignment and conveyance of the Receivables by the Seller
pursuant to this
Agreement are not subject to the bulk transfer laws or any
similar
statutory provisions in effect in any applicable jurisdiction.
(b) The Seller
makes the following representations and warranties with
respect to the Receivables, on which the
Depositor relies in accepting the
Receivables and in transferring the
Receivables to the Issuer under the Sale and
Servicing Agreement, and on which the
Issuer relies in pledging the same to the
Indenture Trustee. Such representations and
warranties speak as of the execution
and delivery of this Agreement as of the
Closing Date, but shall survive the
sale, transfer and assignment of the
Receivables to the Depositor, the
subsequent sale, transfer and assignment of
the Receivables by the Depositor to
the Issuer pursuant to the Sale and
Servicing Agreement and the pledge of the
Receivables by the Issuer to the Indenture
Trustee pursuant to the Indenture.
(i) Characteristics of Receivables. Each Receivable (A) was
originated
in the United
States of America by a Dealer located in the United States of
America for the
retail sale of a Financed Vehicle in the ordinary course of
such Dealer's
business and satisfied the Seller's Credit and Collection
Policy as of the
date of origination of the related Receivable, is payable
in United States
dollars, has been fully and properly executed by the
parties thereto,
has been purchased by the Seller from such Dealer under an
existing Dealer
Agreement and has been validly assigned by such Dealer to
the Seller, (B)
has created or shall create a valid, subsisting and
enforceable
first priority security interest in favor of the Seller in the
Financed
Vehicle, which security interest is assignable by the Seller to
the Depositor,
by the Depositor to the Issuer, and by the Issuer to the
Indenture
Trustee, (C) contains customary and enforceable provisions such
that the rights
and remedies of the holder thereof are adequate for
realization
against the collateral of the benefits of the security, (D)
provides for
fixed level monthly payments (provided that the payment in the
last month of
the term of the Receivable may be insignificantly different
from the level
payments) that fully amortize the Amount Financed by
maturity and
yield interest at the APR and (E) amortizes using the simple
interest
method.
(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; and each Dealer has
represented to
the Seller that such Dealer had all necessary licenses and
permits to
originate such Receivables.
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(iii) Binding Obligation. Each Receivable represents the
genuine,
legal, valid and
binding payment obligation of the Obligor thereon,
enforceable by
the holder thereof in accordance with its terms, except (A)
as
enforceability thereof may be limited by bankruptcy,
insolvency,
reorganization
or similar laws affecting the enforcement of creditors'
rights generally
and by equitable limitations on the availability of
specific
remedies, regardless of whether such enforceability is
considered
in a proceeding
in equity or at law and (B) as such Receivable may be
modified by the
application after the Transfer Date of the Servicemembers
Civil Relief
Act.
(iv) No Government Obligor. No Receivable is due from the
United
States of
America or any State or any agency, department, subdivision or
instrumentality
thereof.
(v) Obligor Bankruptcy. According to the records of the Seller, as
of
the Cutoff Date,
no Obligor is the subject of a bankruptcy proceeding.
(vi) Schedule of Receivables. The information set forth in Schedule
I
to this
Agreement is true and correct in all material respects as of
the
close of
business on the Cutoff Date.
(vii) Marking Records. By the Transfer Date, the Seller will
have
caused its
computer and accounting records relating to each Receivable to
be clearly and
unambiguously marked to show that the Receivables have been
sold to the
Depositor by the Seller and transferred and assigned by the
Depositor to the
Issuer in accordance with the terms of the Sale and
Servicing
Agreement and pledged by the Issuer to the Indenture Trustee in
accordance with
the terms of the Indenture.
(viii) Computer Tape. The computer tape regarding the Receivables
made
available by the
Seller to the Depositor is complete and accurate in all
respects as of
the Transfer Date.
(ix) No Adverse Selection. The Receivables sold to the Depositor
by
the Seller were
randomly selected from those motor vehicle installment
contracts in the
Seller's portfolio based upon the satisfaction of the
criteria set
forth in this Agreement and no selection procedures believed
by the Seller to
be adverse to the Noteholders or the Certificateholder
were utilized in
selecting the Receivables.
(x) Chattel Paper. Each Receivable constitutes chattel paper
within
the meaning of
the UCC as in effect in the state of origination.
(xi) One Original. There is only one executed original of each
Receivable.
(xii) Receivables in Force. No Receivable has been satisfied,
subordinated or
rescinded, nor has any Financed Vehicle been released from
the Lien of the
related Receivable in whole or in part. None of the terms
of any
Receivable has been waived, altered or modified in any respect
since
its origination,
except by instruments or documents identified in the
related
Receivable File.
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(xiii) Lawful Assignment. No Receivable has been originated in, or
is
subject to the
laws of, any jurisdiction the laws of which would make
unlawful, void
or voidable the sale, transfer and assignment of such
Receivable under
this Agreement, the Sale and Servicing Agreement or the
pledge of such
Receivable under the Indenture.
(xiv) Title. It is the intention of the Seller that the transfers
and
assignments
herein contemplated constitute sales of the Receivables from
the Seller to
the Depositor and that the beneficial interest in and title
to the
Receivables not be part of the debtor's estate in the event of
the
filing of a
bankruptcy petition by or against the Seller under any
bankruptcy law.
No Receivable, other than the Receivables identified in the
Reconveyance
Documents, has been sold, transferred, assigned or pledged by
the Seller to
any Person other than to the Depositor or pursuant to this
Agreement (or by
the Depositor to any other Person other than to the Issuer
pursuant to the
Sale and Servicing Agreement). Except with respect to the
Liens under the
Conduit Documents (which such Liens shall be released in
ac
