HYUNDAI AUTO RECEIVABLES TRUST 2010-B $1,171,300,000 ASSET BACKED NOTES HYUNDAI ABS FUNDING CORPORATION (DEPOSITOR) HYUNDAI CAPITAL AMERICA (SELLER AND SERVICER) UNDERWRITING AGREEMENT
Exhibit
1.1
$1,171,300,000
ASSET BACKED NOTES
HYUNDAI
ABS FUNDING CORPORATION
(DEPOSITOR)
HYUNDAI
CAPITAL AMERICA
(SELLER
AND SERVICER)
August
19, ▇▇▇▇
▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ Securities LLC
as
Representative of the
Several
Underwriters
Hearst
Tower
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
SECTION
1. Introduction. Hyundai
ABS Funding Corporation (the “Depositor”) proposes to cause Hyundai Auto
Receivables Trust 2010-B (the “Trust”) to issue and sell $267,000,000 principal
amount of its Class A-1 Notes (the “Class A-1 Notes”), $267,000,000 principal
amount of its Class A-2 Notes (the “Class A-2 Notes”), $419,000,000 principal
amount of its Class A-3 Notes (the “Class A-3 Notes”) and $218,300,000 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 August 26, 2010 (the “Indenture”), between the Trust and ▇▇▇▇▇
Fargo Bank, National Association, 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 Capital America (“HCA”) 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 August 6, 2010 (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 August 26, 2010 (the “Sale
and Servicing Agreement”) among the Trust, HCA, 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 HCA will service the
Receivables on behalf of the Trust. In addition, pursuant to the
Owner Trust Administration Agreement to be dated as of August 26, 2010 (the
“Administration Agreement”) among the Trust, HCA and the Indenture Trustee, HCA
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 August 26, 2010 among the Depositor, HCA 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 HCA pursuant to the terms of the
Receivables Purchase Agreement (the “Receivables Purchase Agreement”) to be
dated as of August 26, 2010 between the Depositor and HCA. HCA has
acquired the Receivables from franchised dealers (the “Dealers”) pursuant to
certain dealer retail agreements between each Dealer and HCA (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 date when sales to purchasers of the Notes were first made to
investors by the Underwriters, which was August 19, 2010 (the “Applicable
Date”), the Seller had prepared the Prospectus Supplement dated August 16, 2010
(the “Preliminary Prospectus Supplement”) to the Base Prospectus dated August
16, 2010 (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”) and the Free Writing
Prospectus dated August 16, 2010 relating to the ratings on the Notes (the
“Ratings Free Writing Prospectus” and together with the Preliminary Prospectus,
the “Time of Sale Information”). If, subsequent to the Applicable
Date and prior to the Closing Date, such Time of Sale 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 “Time
of Sale Information” will refer to the information conveyed to investors at the
time of entry into such new Contract of Sale, in an amended Preliminary
Prospectus or Free Writing Prospectus approved by the Depositor and the
Representative that corrects such material misstatements or omissions (a
“Corrected Prospectus”) and “Applicable Date” 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
HCA 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 HCA jointly, and to the
extent a representation or warranty specifically relates solely to HCA, such
representation or warranty is only made by HCA 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
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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.
(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 HCA 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 HCA 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
Time of Sale Information, at the Applicable Date, did not, and at the Closing
Date will not, contain any untrue statement of a material fact or omit to state
a
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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.
(iv) The
Ratings Free Writing Prospectus has been filed with the Commission in accordance
with Section 8 (to the extent required by Rule 433 under the Securities
Act).
(v) 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 HCA 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.
(vi) The
Indenture has been qualified under the Trust Indenture Act.
(vii) The
Trust Agreement is not required to be qualified under the Trust Indenture
Act.
(viii) The
Trust is not required to register under the Investment Company Act of 1940, as
amended (the “Investment Company Act”).
(ix) 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.
(x) Each
of the Depositor and HCA 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 HCA 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 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.
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(xi) The
execution and delivery of this Agreement have been duly authorized by all
necessary corporate action of the Depositor and HCA, and this Agreement has been
duly executed and delivered by the Depositor and HCA and when duly executed and
delivered by the other parties hereto will be the legal, valid and binding
agreement of the Depositor and HCA, enforceable against the Depositor and HCA 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.
(xii) 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 HCA,
as applicable, and, when duly executed and delivered by the Depositor and HCA
(assuming due authorization, execution and delivery by the other parties
thereto), will be legal, valid and binding agreements of the Depositor and HCA,
enforceable against the Depositor or HCA 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.
(xiii) The
execution and delivery by each of the Depositor and HCA of, and the performance
by each of the Depositor and HCA 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 HCA 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 HCA, any
indenture mortgage, deed of trust, lease or other agreement or instrument to
which the Depositor or HCA 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 HCA of any court,
regulatory body, administrative agency, governmental body or arbitrator having
jurisdiction over the Depositor or HCA, or result in the creation of any lien
upon any property or assets of the Depositor or HCA (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 HCA
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.
(xiv) None
of the Depositor or HCA 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
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or any
arbitrator applicable to the Depositor or HCA, 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 HCA 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.
(xv) None
of the Depositor, HCA 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 HCA act, nor has either of
them authorized nor will either of them authorize any person to act, in such
manner.
(xvi) Each
of the Depositor and HCA 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 HCA 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 HCA 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 HCA, except as described
in or contemplated by the Prospectus.
(xvii) No
legal or governmental proceedings are pending or threatened to which the
Depositor or HCA is a party or to which the property of the Depositor or HCA 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 HCA or the Depositor’s or HCA’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.
(xviii) 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 HCA is
a party or by which the Depositor or HCA or any of its respective properties is
bound.
(xix) The
Notes and the Transaction Documents conform in all material respects to the
descriptions thereof contained in the Preliminary Prospectus and in the
Prospectus.
(xx) Each
of the Depositor’s and HCA’s representations and warranties in the Transaction
Documents are true and correct as of the date they are given therein and
will
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be true
and correct on the Closing Date, and such representations and warranties are
incorporated herein by reference.
(xxi) 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.
(xxii) None
of the Depositor, HCA 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.
(xxiii) 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.
(xxiv) 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.
(xxv) 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.
(xxvi) 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.
(xxvii) Under
generally accepted accounting principles, HCA 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.
(xxviii) 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.
(xxix) As
of the Applicable Date, 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.
(xxx) 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
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Regulations
and it has done so within the applicable periods of time required under the
Securities Act and the Rules and Regulations.
(xxxi) Prior
to the date hereof, none of HCA, 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.
(xxxii) HCA
has executed and delivered a written representation to each Rating Agency that
it will take the actions specified in paragraphs (a)(3)(iii)(A) through (D) of
Rule 17g-5 of the Exchange Act (“Rule 17g-5”), and it has complied with each
such representation.
(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 August
26, 2010 (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 III hereto, prior to the cut-off time
for DTC settlement 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
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until all
Permitted Liens have been released prior to the cut-off time for DTC settlement
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.
(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 HCA. Each of the Depositor and HCA 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 each of
the Ratings Free Writing Prospectus and a Free Writing Prospectus that is
Pre-pricing and Pricing Information no later than the second business day
following the day it is first used). The Depositor or HCA 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, the
Prospectus, the Ratings Free Writing 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 HCA 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 to 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
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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 to 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 and any Free Writing Prospectus,
during the period when any Underwriter is required to deliver a Prospectus under
the Securities Act, at the cost and expense of HCA, 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.
(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) HCA
and the Depositor shall (i) furnish or make available to the Underwriters or
their counsel such additional documents and information regarding HCA, 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
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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, HCA, 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.
(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, HCA or any of their Affiliates shall offer, sell,
contract to sell or otherwise dispose of any securities of the Trust, the
Depositor or HCA 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 HCA 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, HCA 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, HCA
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 HCA,
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, HCA 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 HCA 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
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the
taking of any other actions by the Depositor or HCA, 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 HCA 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.
(p) The
Depositor or HCA will, and will cause the Trust to, promptly pay and perform its
respective obligations under the Transaction Documents.
(q) To
comply with the representation made by it to each Rating Agency pursuant to
paragraph (a)(3)(iii) of Rule 17g-5.
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,
including the Ratings Free Writing Prospectus.
(ii) “Issuer Information”
means the information contained in the Preliminary Prospectus (other than
Underwriters’ Information), the Ratings Free Writing Prospectus 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, (C) expected or actual pricing parameters for
each class of Notes, (D) expected settlement and non offered notes and (E) 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
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Prospectus,
the Prospectus and written communications constituting a bona fide electronic
road show within the meaning of Rule 433(h) under the Securities Act (the “Road
Show Material”) unless the Depositor has obtained the prior consent of the
Representative.
(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.
(e) In
the event that the Depositor or HCA becomes aware that, as of the Applicable
Date, 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
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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.
(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 HCA jointly
and severally agree to reimburse such Underwriter for such costs. In
the event the Depositor or HCA 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 HCA, as applicable, for such costs.
(i) Each
Underwriter, severally and not jointly, (A) represents to the Depositor and HCA
that it has not provided, as of the date of this Agreement, and covenants with
the Depositor and HCA that it will not provide, on or prior to the Closing Date,
to any Rating Agency or other
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“nationally
recognized statistical rating organization” (within the meaning of the Exchange
Act), any information, written or oral, relating to the Trust, the Notes, the
Receivables, the transactions contemplated by this Agreement or the other Basic
Documents or any other information, that could be reasonably determined to be
relevant to determining an initial credit rating for the Notes (as contemplated
by Rule 17g-5(a)(3)(iii)(C)), without the prior consent of the Depositor or HCA,
and (B) covenants with the Depositor and HCA that it will not provide to any
Rating Agency or other “nationally recognized statistical rating organization”
(within the meaning of the Exchange Act), any information, written or oral,
relating to the Trust, the Notes, the Receivables, the transactions contemplated
by this Agreement or the other Basic Documents or any other information, that
could be reasonably determined to be relevant to undertaking credit rating
surveillance on the Notes (as contemplated by Rule 17g-5(a)(3)(iii)(D)), without
the prior consent of the Depositor or HCA.
SECTION
7. Payment of
Expenses. HCA 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 HCA’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,
P.A., Delaware counsel to the Trust, (k) the reasonable fees and expenses of
HCA’s and the Depositor’s counsel and (l) any costs reimbursed to the
Underwriters under section 6(h) above. To the extent that the
transactions contemplated by this agreement are consummated, HCA shall only pay
the fees and expenses described in clauses (a) through (l). Neither
HCA nor the Depositor is responsible for any out -of-pocket expenses of the
Representative or the Underwriters in connection with the offering of the
Notes. Notwithstanding the foregoing, if for any reason the purchase
of the Notes by the Underwriters is not consummated (other than pursuant to
Section 11 hereof), HCA 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.
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 HCA of their obligations hereunder, and to the following
additional conditions precedent:
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(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, HCA 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, HCA, 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.
(e) The
Representative shall have received an opinion of in-house counsel to the
Depositor and HCA, 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 HCA 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.
-17-
(ii) Each
of this Agreement and each Transaction Document has been duly authorized,
executed and delivered by the Depositor and HCA, as applicable.
(iii) Each
of the Depositor and HCA 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 HCA 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 HCA 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 HCA, (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 HCA 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 HCA 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 HCA or the Depositor, in
each case that would materially and adversely affect the performance by the
Depositor or HCA 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 HCA 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.
(vi) Such
counsel is familiar with HCA’s standard operating procedures relating to its
acquisition of a perfected first priority security interest in the
vehicles
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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 HCA has not followed its standard
procedures in all material respects in connection with the perfection of
security interests in the Vehicles), HCA 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 HCA, 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 HCA 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, HCA 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 HCA is a party has been duly executed and delivered by and on behalf of such
party and constitutes a valid and binding obligation of such Company,
enforceable against such party in accordance with its terms.
(ii) The
execution and delivery by each of HCA, 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 HCA, 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 HCA, 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
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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 HCA, the Depositor and the Trust of the Transaction
Documents and this Agreement to which it is a party do not, and the consummation
by HCA, 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.
(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 Trust, enforceable against the Trust 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 Applicable Date, 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.
(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 Preliminary Prospectus Supplement and the Prospectus
Supplement under the headings “SUMMARY OF TERMS—ERISA CONSIDERATIONS” and “ERISA
CONSIDERATIONS” and in the Base Prospectus under the headings “SUMMARY OF
TERMS—ERISA CONSIDERATIONS” and
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“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, HCA 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 HCA 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 HCA.
(ii) In
a properly presented and argued case in a proceeding under the Bankruptcy Code,
in which HCA is the debtor, the bankruptcy court would determine that, with
respect to the sale of the Receivables from HCA to the Depositor, such sale was
a “true sale.”
(iii) If
HCA 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 HCA 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 HCA of collections on the Receivables in
accordance with the Transaction Agreements.
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.
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(h) The
Underwriters shall have received a letter of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the
Depositor, HCA and the Trust, addressed to the Underwriters, dated the Closing
Date and satisfactory in form and substance to the Underwriters 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 HCA and the Depositor,
representatives of the independent public accountants for HCA 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, at the
Effective Date, 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 Preliminary Prospectus, as of the
Applicable Date, considered together with the statements in the Prospectus with
respect to blanks and other items identified in the Preliminary Prospectus as to
be completed in the Prospectus, included an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or that the Prospectus, as of its date or as of the Closing Date,
included or includes an 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 or the
Indenture Trustee’s Statement of Eligibility on Form T-1. Such
counsel expresses no opinion regarding any Underwriter Free Writing
Prospectus.
Such
letter may provide that it is being furnished only to the Underwriters, is
solely for their benefit as Underwriters of the Notes, and is not to be used,
quoted, relied upon or otherwise referred to by any other person (including any
direct or indirect purchaser or owner of any of the Notes, or any other person
claiming by or through any such purchaser or owner, for any purpose or in any
circumstance) or for any other purpose without such counsel’s prior written
consent.
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
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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 HCA 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 HCA’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 “HCA 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 HCA).
(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):
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(1)
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HCA
is “located” in California and the local law of that state governs
perfection by the filing of financing statements of a nonpossessory
security interest in HCA’s rights in the HCA
Collateral.
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(2)
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The
Depositor is “located” in Delaware and the local law of that state governs
perfection by the filing of financing statements of a nonpossessory
security interest in Depositor’s rights in the Depositor
Collateral.
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(3)
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The Trust is “located” in Delaware and the local
law of that state governs perfection by the filing of financing statements
of a nonpossessory security interest
in the Trust’s rights in the Indenture Collateral.
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(v) When
the HCA 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 HCA 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) When
the Issuer Financing Statement is filed (within the meaning of Section 9-516 of
the Delaware UCC in the Delaware Search Office), under the provisions of the
Delaware UCC, the Trust’s security interest in the Indenture Collateral will be
perfected.
Under the
New York UCC, except as provided in the next sentence, the local law of each of
HCA’s, the Depositor’s or the Trust’s (each, a “Transferring Party”), as
applicable, location (as set forth in clause (iv) 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 HCA Collateral, the
Depositor Collateral or Indenture Collateral, as applicable. To the
extent that any of the HCA 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
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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 HCA Collateral, the Seller Collateral or the Collateral, as applicable, as
collateral. Accordingly,
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(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 HCA Financing Statement in the
California Search Office, the Depositor’s perfected security
interest in the HCA Collateral will
be prior to any other security interest granted by HCA that is
perfected solely by the filing of
financing statements in the
California Search Office;
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(2)
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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
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(3)
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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.
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(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 HCA 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
-25-
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”.
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
Base Prospectus and Prospectus Supplement, as of the date of the Prospectus
Supplement and as of the Closing Date, and the Base Prospectus and Preliminary
Prospectus Supplement, as of the Applicable Date and as of the Closing Date,
under the headings “SUMMARY OF TERMS—TAX STATUS” and “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, addressed to the Representative,
of in-house counsel to the Indenture 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
Indenture Trustee, based upon a certificate of corporate existence issued by the
Comptroller of the Currency, is validly existing as a banking association in
good standing under the laws of the United States, and has the requisite entity
power and authority to execute and deliver each Transaction Document to which it
is a party and to perform its obligations thereunder.
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(ii) Each
of the Transaction Documents to which the Indenture Trustee is a party has been
duly authorized by all requisite action, executed and delivered by the Indenture
Trustee.
(iii) Each
of the Transaction Documents to which the Indenture Trustee is a party, assuming
(unless opined to therein) the necessary entity power and authority,
authorization, execution, authentication, payment and delivery of and by each
party thereto, is a valid and legally binding agreement under the laws of the
State of New York, enforceable thereunder in accordance with its terms against
the Indenture Trustee.
(iv) With
respect to the Indenture Trustee, the performance of its
obligations under each of the Transaction Documents to which it is a
party and the consummation of the transactions contemplated thereby do not
require any consent, approval, authorization or order of, filing with or notice
to any United States federal or State of New York court, agency or other
governmental body under any United States federal or State of New York statute
or regulation that is normally applicable to transactions of the type
contemplated by the Transaction Documents, except as such may be required under
the securities laws of any State of the United States or such as have been
obtained, effected or given.
(v) With
respect to the Indenture Trustee, the performance of its obligations under each
of the Transaction Documents to which it is party and the consummation of the
transactions contemplated thereby will not result in any breach or violation of
any United States federal or State of New York statute or regulation that is
normally applicable to transactions of the type contemplated by the Transaction
Documents.
(vi) The
Notes have been duly authenticated and delivered by the Indenture Trustee in
accordance with the Indenture.
(l) The
Representative shall have received an opinion addressed to the Representative,
of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., 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.
-27-
(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, P.A., 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).
(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
-28-
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.
(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) 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 HCA shall
have furnished to such counsel such documents as it may reasonably request for
the purpose of enabling it to pass upon such matters.
(o) 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
-29-
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.
(p) 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 HCA 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 HCA except as
disclosed to the Representative in writing, and (C) there are no actions,
proceedings or investigations to which the Depositor or HCA is a party or that
are threatened before any court, administrative agency or other tribunal having
jurisdiction over HCA 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 HCA 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 headings
“MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES.”
(q) 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 HCA 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.
(r) The
Representative shall have received evidence of ratings letters that assign the
ratings to the Notes specified in the Ratings Free Writing
Prospectus.
(s) The
Representative shall have received, from each of HCA 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.
(t) 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 HCA,
in form and substance satisfactory to the Representative and counsel to the
Underwriters.
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(u) 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.
(v) All
representations and warranties made by or on behalf of HCA and the Depositor in
the Transaction Documents to which each is a party are true and correct as of
the Closing Date.
(w) The
Representative shall have received evidence that the Trust has obtained Sales
Finance Company Licenses from the States of Maryland and
Pennsylvania.
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.
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 HCA 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 HCA 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 HCA 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 HCA, 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
-31-
liability
of HCA 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 HCA 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:
(i) any
untrue statement or alleged untrue statement made by the Depositor or HCA 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, the Road
Show Material 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, the Road Show Materials 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 HCA 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, the Road Show Materials 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 HCA 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 HCA may otherwise
have.
(b) Each
Underwriter, severally and not jointly, will indemnify and hold harmless each of
the Depositor and HCA, each of its directors and officers and each person, if
any, who controls the Depositor or HCA within the meaning of Section 15 of the
Securities Act or Section
-32-
20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Depositor, HCA 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) (i) arise out of or are
based upon (A) 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 (B) 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 or (ii) arise out of or are based upon the breach
by such Underwriter of the representation and covenant set forth in Section
6(i), and, in each case will reimburse, as incurred, any legal or other expenses
reasonably incurred by the Depositor, HCA 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; provided, however, that the
indemnification provided by any Underwriter pursuant to clause (ii) above will
in no event exceed the total underwriting discounts and commissions (the
“Spread”) received by such Underwriter as set forth in the
Prospectus. 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.
(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
-33-
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.
(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 HCA 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 HCA
(including for such purpose, the value of the Certificates) bear to 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, HCA
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, HCA 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
-34-
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 HCA, each officer of the Depositor and HCA and
each person, if any, who controls the Depositor and HCA 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 HCA.
(e) Notwithstanding
any other provision of this Agreement, the aggregate liability of any
Underwriter to the Depositor and HCA in respect of any losses, claims, damages,
liabilities, legal or other expenses or other amounts (collectively, “Amounts”)
arising out of or based upon any breaches or alleged breaches by such
Underwriter of its covenant set forth in Section 6(i)(B), without regard to
whether such amounts are payable by such Underwriter under the indemnification
provided by Section 10(b) or as damages for breach of contract or otherwise,
will in no event exceed the Spread received by such Underwriter as set forth in
the Prospectus.
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, HCA, their
Affiliates and any non-defaulting Underwriter(s) for damages occasioned by its
default hereunder.
-35-
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 HCA
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 HCA 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 HCA
acknowledges and agrees that the Underwriters’ responsibility to the Depositor
and HCA 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 HCA in
connection with the offering of the Notes and the other transactions
contemplated by this Agreement.
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 HCA:
Hyundai
Capital America
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
Attention:
Chief Financial Officer
in
the case of the Representative:
Banc of
America Securities LLC
Hearst
Tower
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
-36-
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 HCA 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.
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, HCA 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 HCA 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 HCA, the officers of the
Depositor and HCA and any person or persons who control the Depositor or HCA
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.
-37-
(f) The
respective representations, warranties, agreements, covenants, indemnities and
other statements of the Depositor and HCA, 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
HCA, 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.
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.
-38-
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 HCA.
|
Very
truly yours,
|
|
|
HYUNDAI
ABS FUNDING CORPORATION
|
|
|
By: /s/ Min ▇▇▇ ▇▇▇▇▇
Park
|
|
|
Name: Min ▇▇▇ ▇▇▇▇▇ Park
|
|
|
Title: Vice President and
Secretary
|
|
|
HYUNDAI
CAPITAL AMERICA
|
|
|
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: Director
|
-39-
SCHEDULE
I
|
Underwriter
|
Class A-1
Notes |
Class A-2
Notes |
Class A-3
Notes |
Class A-4
Notes |
||||
|
Banc
of America Securities LLC
|
$100,124,000
|
$100,124,000
|
$157,124,000
|
$81,863,000
|
||||
|
Barclays
Capital Inc. .
|
$74,426,000
|
$74,426,000
|
$116,796,000
|
$60,852,000
|
||||
|
SG
Americas Securities, LLC.
|
$74,426,000
|
$74,426,000
|
$116,796,000
|
$60,852,000
|
||||
|
HSBC
Securities (USA) Inc.
|
$6,008,000
|
$6,008,000
|
$9,428,000
|
$4,911,000
|
||||
|
RBC
Capital Markets Corporation.
|
$6,008,000
|
$6,008,000
|
$9,428,000
|
$4,911,000
|
||||
|
RBS
Securities Inc. .
|
$6,008,000
|
$6,008,000
|
$9,428,000
|
$4,911,000
|
||||
|
Total
|
$267,000,000
|
$267,000.000
|
$419,000,000
|
$218,300,000
|
-40-
SCHEDULE
II
|
Security
|
Original
Principal
Balance $ |
Price
$
|
||
|
Class
A-1 Notes
|
$267,000,000
|
$266,733,000.00
|
||
|
Class
A-2 Notes
|
$267,000.000
|
$266,513,259.00
|
||
|
Class
A-3 Notes
|
$419,000,000
|
$418,024,400.40
|
||
|
Class
A-4 Notes
|
$218,300,000
|
$217,701,093.95
|
||
|
Total
Price to Depositor
|
$1,168,971,753.35
|
-41-
SCHEDULE
III
LIST
OF PERMITTED LIENS
|
1.
|
Receivables
Sale Agreement, dated as of May 20, 2010, between Hyundai Capital America,
as seller, and Hyundai HK Funding, LLC, as
buyer.
|
|
2.
|
Loan
and Security Agreement, dated as of May 20, 2010, among Hyundai HK
Funding, LLC, as the borrower, Hyundai Capital America, as the servicer,
each of the commercial paper conduits from time to time party thereto, as
the conduit lenders, each of the financial institutions from time to time
party thereto, as the committed lenders, each of the financial
institutions from time to time party thereto, as the group agents and
JPMorgan Chase Bank, N.A., as the administrative agent, on behalf of the
secured parties, as amended from time to
time.
|
-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
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the
expression “Prospectus Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
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