OWNER TRUST ADMINISTRATION AGREEMENT among HYUNDAI AUTO RECEIVABLES TRUST 2011-A, as Issuer, HYUNDAI CAPITAL AMERICA, as Administrator, and CITIBANK, N.A., as Indenture Trustee Dated as of January 27, 2011
Exhibit
10.3
among
HYUNDAI
AUTO RECEIVABLES TRUST 2011-A, as Issuer,
HYUNDAI
CAPITAL AMERICA, as Administrator,
and
CITIBANK,
N.A., as Indenture Trustee
Dated as
of January 27, 2011
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Page
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Section
1.1
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Duties
of the Administrator with Respect to the Depository Agreement and the
Indenture
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2
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Section
1.2
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Additional
Duties
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5
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Section
1.3
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Non-Ministerial
Matters
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6
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Section
2.
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Records
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7
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Section
3.
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Compensation
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7
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Section
4.
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Additional
Information To Be Furnished to the Issuer
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7
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Section
5.
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Independence
of the Administrator
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7
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Section
6.
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No
Joint Venture
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7
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Section
7.
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Other
Activities of Administrator
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7
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Section
8.
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Term
of Agreement; Resignation and Removal of Administrator
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7
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Section
9.
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Action
upon Termination, Resignation or Removal
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9
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Section
10.
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Notices
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9
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Section
11.
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Amendments
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10
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Section
12.
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Successors
and Assigns
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11
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Section
13.
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GOVERNING
LAW
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11
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Section
14.
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Headings
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11
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Section
15.
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Counterparts
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11
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Section
16.
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Severability
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11
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Section
17.
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Not
Applicable to Citibank, N.A. in Other Capacities
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11
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Section
18.
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Limitation
of Liability of Owner Trustee and Indenture Trustee
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11
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Section
19.
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Third-Party
Beneficiary
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12
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Section
20.
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Nonpetition
Covenants
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12
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Section
21.
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Liability
of Administrator
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13
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Exhibit
A
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POWER
OF ATTORNEY
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A-1
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This
OWNER TRUST ADMINISTRATION AGREEMENT dated as of January 27, 2011 (this “Agreement”) among
HYUNDAI AUTO RECEIVABLES TRUST 2011-A, a Delaware statutory trust (the “Issuer”), HYUNDAI
CAPITAL AMERICA, a California corporation, as administrator (the “Administrator”), and
CITIBANK, N.A., a national banking association, not in its individual capacity
but solely as Indenture Trustee (the “Indenture
Trustee”).
WITNESSETH:
WHEREAS,
the Issuer was formed pursuant to a Trust Agreement dated as of August 26, 2010
and is governed by an Amended and Restated Trust Agreement dated as of January
27, 2011 (as amended and supplemented from time to time, the “Trust Agreement”), by
and among Hyundai ABS Funding Corporation, as depositor (the “Depositor”),
Wilmington Trust Company, not in its individual capacity but solely as
owner trustee (the “Owner Trustee”), and
Hyundai Capital America, as administrator (the “Administrator”), and
is issuing 0.31830% Asset Backed Notes, Class A-1, 0.69% Asset Backed
Notes, Class A-2, 1.16% Asset Backed Notes, Class A-3, 1.78% Asset Backed
Notes, Class A-4 (collectively, the “Class A Notes”),
2.45% Asset Backed Notes, Class B (the “Class B Notes”), and
3.00% Asset Backed Notes (the “Class C Notes”, collectively with the Class A
Notes and the Class B Notes, the “Notes”) pursuant to
the Indenture dated as of January 27, 2011 (as amended and supplemented from
time to time, the “Indenture”), between
the Issuer and the Indenture Trustee, and is issuing asset backed certificates
(the “Trust
Certificates” and, collectively with the Notes, the “Securities”) pursuant
to the Trust Agreement (capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the Indenture or the Trust
Agreement, as applicable);
WHEREAS,
the Issuer has entered into certain agreements in connection with the issuance
of the Securities (collectively, the “Related Agreements”),
including (i) a Sale and Servicing Agreement dated as of January 27, 2011 (as
amended and supplemented from time to time, the “Sale and Servicing
Agreement”), among Hyundai Capital America, as seller (in such capacity,
the “Seller”)
and as servicer (in such capacity the “Servicer”), the
Depositor, the Issuer and the Indenture Trustee, (ii) a Letter of
Representations dated January 27, 2011 (as amended and supplemented from time to
time, the “Depository
Agreement”), among the Issuer, the Indenture Trustee, the Administrator
and The Depository Trust Company (“DTC”) relating to the
Notes and (iii) the Indenture.
WHEREAS,
pursuant to the Related Agreements, the Issuer and Owner Trustee are required to
perform certain duties in connection with (a) the Notes and the collateral
therefor pledged pursuant to the Indenture (the “Collateral”) and (b)
the beneficial ownership interests in the Issuer (the registered holders of such
interests being referred to herein as the “Owners”);
WHEREAS,
the Issuer and the Owner Trustee desire to have the Administrator perform
certain of the duties of the Issuer and the Owner Trustee referred to in the
preceding clause and to provide such additional services consistent with the
terms of this Agreement and the Related Agreements as the Issuer and the Owner
Trustee may from time to time request; and
WHEREAS,
the Administrator has the capacity to provide the services required hereby and
is willing to perform such services for the Issuer and the Owner Trustee on the
terms set forth herein;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
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Duties of the
Administrator with Respect to the Depository Agreement and the
Indenture.
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The
Administrator agrees to perform all its duties as Administrator and all the
duties of the Issuer and the Owner Trustee under the Depository
Agreement. In addition, the Administrator shall consult with the
Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the
Indenture and the Depository Agreement. The Administrator shall
monitor the performance of the Issuer and shall advise the Owner Trustee when
action is necessary to comply with the Issuer’s or the Owner Trustee’s duties
under the Indenture and the Depository Agreement. The Administrator
shall prepare for execution by the Issuer, or shall cause the preparation by
other appropriate persons of, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer or the Owner
Trustee to prepare, file or deliver pursuant to the Indenture and the Depository
Agreement. In furtherance of the foregoing, the Administrator shall
take all appropriate action that is the duty of the Issuer or the Owner Trustee
to take pursuant to the Indenture including, without
limitation, such of the foregoing as are required with respect to the following
matters under the Indenture (parenthetical section references are to sections of
the Indenture):
(a) the
duty to cause the Note Register to be kept and to give the Indenture Trustee
notice of any appointment of a new Note Registrar and the location, or change in
location, of the Note Register (Section 2.04);
(b) the
notification of Noteholders of the final principal payment on their Notes
(Section 2.08(b));
(c) the
preparation of or obtaining of the documents and instruments required for
authentication of the Notes and delivery of the same to the Indenture Trustee
(Section 2.02);
(d) the
preparation, obtaining or filing of the instruments, opinions and certificates
and other documents required for the release of collateral (Section
4.04);
(e) the
maintenance of an office in the Borough of Manhattan, City of New York, for
registration of transfer or exchange of Notes (Section 3.02);
(f) the
duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture
Trustee the instrument specified in the Indenture regarding funds held in trust
(Section 3.03);
(g) the
direction to the Indenture Trustee to deposit moneys with Paying Agents, if any,
other than the Indenture Trustee (Section 3.03);
(h) the
obtaining and preservation of the Issuer’s qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of the Indenture, the Notes, the Collateral and each
other instrument and agreement included in the Trust Estate (Section
3.04);
(i) the
preparation of all supplements and amendments to the Indenture and all financing
statements, continuation statements, instruments of further assurance and other
instruments and the taking of such other action as is necessary or advisable to
protect the Trust Estate (Section 3.05);
(j) the
delivery of the Opinion of Counsel on the Closing Date and the annual delivery
of Opinions of Counsel as to the Trust Estate, and the annual delivery of the
Officer’s Certificate and certain other statements as to compliance with the
Indenture (Sections 3.06 and 3.09);
(k) the
identification to the Indenture Trustee in an Officer’s Certificate of a Person
with whom the Issuer has contracted to perform its duties under the Indenture
(Section 3.07(b));
(l)
the delivery of written notice to the Indenture Trustee and the
Rating Agencies of a Servicer Termination Event under the Sale and Servicing
Agreement and, if such Servicer Termination Event arises from the failure of the
Servicer to perform any of its duties under the Sale and Servicing Agreement
with respect to the Receivables, the taking of all reasonable steps available to
remedy such failure (Section 3.07(d));
(m) [Reserved];
(n) the
preparation and obtaining of documents and instruments required for the release
of the Issuer from its obligations under the Indenture (Section
4.01);
(o) the
delivery of written notice to the Indenture Trustee and the Rating Agencies of
each Event of Default under the Indenture and each default by the Servicer or
the Seller under the Sale and Servicing Agreement and by the Seller or the
Company under the Receivables Purchase Agreement (Section 3.19);
(p) the
monitoring of the Issuer’s obligations as to the satisfaction and discharge of
the Indenture and the preparation and execution of an Officer’s Certificate and
the obtaining of the Opinion of Counsel and the Independent Certificate relating
thereto (Section 4.01);
(q) the
compliance with any written directive of the Indenture Trustee with respect to
the sale of the Trust Estate in a commercially reasonable manner if an Event of
Default shall have occurred and be continuing (Section 5.04);
(r) the
preparation and delivery of notice to Noteholders of the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee (Section
6.08);
(s) the
preparation of any written instruments required to confirm more fully the
authority of any co-trustee or separate trustee and any written instruments
necessary in connection with the resignation or removal of any co-trustee or
separate trustee (Sections 6.08 and 6.10);
(t) the
furnishing to the Indenture Trustee with the names and addresses of Noteholders
during any period when the Indenture Trustee is not the Note Registrar
(Section 7.01);
(u) the
duty to provide reasonable and appropriate assistance to the Depositor or its
designees, as applicable, with the preparation and filing with the Commission,
any applicable state agencies and the Indenture Trustee of documents required to
be filed on a periodic basis with, and summaries thereof as may be required by
rules and regulations prescribed by, the Commission and any applicable state
agencies and the transmission of such summaries, as necessary, to the
Noteholders (Section 7.03);
(v) the
opening of one or more accounts in the Issuer’s name, the preparation and
delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and
all other actions necessary with respect to investment and reinvestment of funds
in the Trust Accounts (Sections 8.02 and 8.03);
(w) the
preparation of an Issuer Request and Officer’s Certificate and the obtaining of
an Opinion of Counsel and Independent Certificates, if necessary, for the
release of the Trust Estate (Sections 8.04 and 8.05);
(x) the
preparation of Issuer Orders and the obtaining of Opinions of Counsel with
respect to the execution of supplemental indentures and the mailing to the
Noteholders of notices with respect to such supplemental indentures (Sections
9.01, 9.02 and 9.03);
(y) the
execution and delivery of new Notes conforming to any supplemental indenture
(Section 9.05);
(z) the
duty to notify Noteholders of redemption of the Notes or to cause the Indenture
Trustee to provide such notification (Section 10.02);
(aa) the
preparation and delivery of all Officer’s Certificates, Opinions of Counsel and
Independent Certificates with respect to any requests by the Issuer to the
Indenture Trustee to take any action under the Indenture (Section
11.01(a));
(bb) the
preparation and delivery of Officer’s Certificates and the obtaining of
Independent Certificates, if necessary, for the release of property from the
lien of the Indenture (Section 11.01(b));
(cc) the
notification of the Rating Agencies, upon the failure of the Indenture Trustee
to give such notification, of the information required pursuant to Section 11.04
of the Indenture (Section 11.04);
(dd) the
preparation and delivery to Noteholders and the Indenture Trustee of any
agreements with respect to alternate payment and notice provisions (Section
11.06);
(ee) the
recording of the Indenture, if applicable (Section 11.14);
(ff) the
preparation of Definitive Notes in accordance with the instructions of the
Clearing Agency (Section 2.12);
(gg) the
direction to Paying Agents to pay to the Indenture Trustee all sums held in
trust by such Paying Agents (Section 3.03); and
(hh) the
duty to provide the Indenture Trustee with the information necessary to deliver
to each Noteholder such information as may be reasonably required to enable such
Holder to prepare its United States federal and state and local income or
franchise tax returns (Section 6.06).
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Section
1.2
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Additional
Duties.
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(a) In
addition to the duties of the Administrator set forth above, the Administrator
shall (i) perform all duties and obligations applicable to or required of the
Issuer as set forth in Appendix A to the Sale and Servicing Agreement in
accordance with the terms and conditions thereof, and (ii) perform such
calculations and shall prepare or shall cause the preparation by other
appropriate persons of, and shall execute on behalf of the Issuer or the Owner
Trustee, all such documents, reports, filings, instruments, certificates and
opinions that it shall be the duty of the Issuer or the Owner Trustee to
prepare, file or deliver pursuant to the Related Agreement or Section 5.04(a),
(b), (c) or (d) of the Trust Agreement, and at the request of the Owner Trustee
shall take all appropriate action that it is the duty of the Issuer or the Owner
Trustee to take pursuant to the Related Agreements. In furtherance
thereof, the Owner Trustee shall, on behalf of itself and of the Issuer, execute
and deliver to the Administrator and to each successor Administrator appointed
pursuant to the terms hereof, one or more powers of attorney substantially in
the form of Exhibit A hereto, appointing the Administrator the attorney-in-fact
of the Owner Trustee and the Issuer for the purpose of executing on behalf of
the Owner Trustee and the Issuer all such documents, reports, filings,
instruments, certificates and opinions. Subject to Section 5 of this
Agreement, and in accordance with the directions of the Owner Trustee, the
Administrator shall administer, perform or supervise the performance of such
other activities in connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing provisions and as are
expressly requested by the Owner Trustee and are reasonably within the
capability of the Administrator. Such responsibilities shall include
providing to the Depositor and the Indenture Trustee the monthly servicing
report in an appropriate electronic form.
(b) Notwithstanding
anything in this Agreement or the Related Agreements to the contrary, the
Administrator shall be responsible for performance of the duties of the Owner
Trustee set forth in Section 5.04(a), (b), (c) and (d), the penultimate sentence
of Section 5.04 and Section 5.05(a) of the Trust Agreement with respect to,
among other things, accounting and reports to Certificateholders; provided,
however, that the Owner Trustee shall retain responsibility for the distribution
of the Schedule K-1s (as prepared by the Administrator) necessary to enable each
Certificateholder to prepare its federal and state income tax
returns.
(c) The
Administrator shall satisfy its obligations with respect to clause (b) above by
retaining, at the expense of the Trust payable by the Administrator, a firm of
independent public accountants (the “Accountants”)
acceptable to the Owner Trustee, which shall perform the obligations of the
Administrator thereunder.
(d) The
Administrator shall perform the duties of the Administrator including, without
limitation, those specified in Sections 8.01, 8.02 and 10.02 of the Trust
Agreement required to be performed in connection with the fees, expenses and
indemnification and the resignation or removal of the Owner Trustee, and any
other duties expressly required to be performed by the Administrator under the
Trust Agreement.
(e) In
carrying out the foregoing duties or any of its other obligations under this
Agreement, the Administrator may enter into transactions or otherwise deal with
any of its affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any directions received
from the Issuer and shall be, in the Administrator’s opinion, no less favorable
to the Issuer than would be available from unaffiliated parties.
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Section
1.3
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Non-Ministerial
Matters.
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With
respect to matters that in the reasonable judgment of the Administrator are
non-ministerial, the Administrator shall not take any action unless within a
reasonable time before the taking of such action, the Administrator shall have
notified the Owner Trustee of the proposed action and the Owner Trustee shall
have withheld consent or provided an alternative direction. Unless
explicitly provided under this Administration Agreement, for the purpose of the
preceding sentence, “non-ministerial matters” shall include, without
limitation:
(a) the
amendment of or any supplement to the Indenture;
(b) the
initiation of any claim or lawsuit by the Issuer and the compromise of any
action, claim or lawsuit brought by or against the Issuer (other than in
connection with the collection of the Receivables).
(c) the
amendment, change or modification of the Related Agreements;
(d) the
appointment of successor Note Registrars, successor Paying Agents and successor
Indenture Trustees pursuant to the Indenture or the appointment of successor
Administrators or Successor Servicers, or the consent to the assignment by the
Note Registrar, Paying Agent or Indenture Trustee of its obligations under the
Indenture; and
(e) the
removal of the Indenture Trustee.
Notwithstanding
anything to the contrary in this Agreement, the Administrator shall not be
obligated to, and shall not, (i) make any payments to the Noteholders under the
Related Agreements, (ii) sell the Trust Estate pursuant to Section 5.04 of the
Indenture or (iii) take any other action that the Issuer directs the
Administrator not to take on its behalf.
Section
2. Records. The
Administrator shall maintain appropriate books of account and records relating
to services performed hereunder, which books of account and records shall be
accessible for inspection by the Issuer at any time during normal business
hours.
Section
3. Compensation. As
compensation for the performance of the Administrator’s obligations under this
Agreement and as reimbursement for its expenses related thereto, the
Administrator shall be paid by the Servicer in accordance with the Sale and
Servicing Agreement.
Section
4. Additional Information To Be
Furnished to the Issuer. The Administrator shall furnish to
the Issuer from time to time such additional information regarding the
Collateral as the Issuer shall reasonably request.
Section
5. Independence of the
Administrator. For all purposes of this Agreement, the
Administrator shall be an independent contractor and shall not be subject to the
supervision of the Issuer or the Owner Trustee with respect to the manner in
which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or the
Owner Trustee in any way and shall not otherwise be deemed an agent of the
Issuer or the Owner Trustee.
Section
6. No Joint
Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
Section
7. Other Activities of
Administrator.
Nothing
herein shall prevent the Administrator or its Affiliates from engaging in other
businesses or, in its sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Owner
Trustee or the Indenture Trustee.
The
Administrator and its affiliates may generally engage in any kind of business
with any person party to a Related Agreement, any of its affiliates and any
person who may do business with or own securities of any such person or any of
its affiliates, without any duty to account therefor to the Issuer, the Owner
Trustee or the Indenture Trustee.
Section
8. Term of Agreement;
Resignation and Removal of Administrator.
(a) This
Agreement shall continue in force until the dissolution of the Issuer, upon
which event this Agreement shall automatically terminate.
(b) Subject
to Sections 8(e) and (f), the Administrator may resign its duties hereunder by
providing the Issuer with at least 60 days’ prior written notice.
(2011-A
Owner Trust Administration Agreement)
7
(c) Subject
to Sections 8(e) and (f), the Issuer may remove the Administrator without cause
by providing the Administrator with at least 60 days’ prior written
notice.
(d) Subject
to Sections 8(e) and (f), at the sole option of the Issuer, the Administrator
may be removed immediately upon written notice of termination from the Issuer to
the Administrator if any of the following events shall occur:
(i) the
Administrator shall default in the performance of any of its duties under this
Agreement and, after notice of such default, shall not cure such default within
ten Business Days (or, if such default cannot be cured in such time, shall not
give within ten days such assurance of cure as shall be reasonably satisfactory
to the Issuer);
(ii) a
court having jurisdiction in the premises shall enter a decree or order for
relief, and such decree or order shall not have been vacated within 60 days, in
respect of the Administrator in any involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect or
appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the
Administrator shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, shall consent to the
entry of an order for relief in an involuntary case under any such law, shall
consent to the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of possession by
any such official of any substantial part of its property, shall make any
general assignment for the benefit of creditors or shall fail generally to pay
its debts as they become due.
The
Administrator agrees that if any of the events specified in clauses (ii) or
(iii) of this Section shall occur, it shall give written notice thereof to the
Issuer and the Indenture Trustee within seven days after the happening of such
event.
(e) No
resignation or removal of the Administrator pursuant to this Section shall be
effective until (i) a successor Administrator shall have been appointed by the
Issuer, (ii) such successor Administrator shall have agreed in writing to
be bound by the terms of this Agreement in the same manner as the Administrator
is bound hereunder and (iii) the Owner Trustee and the Indenture Trustee consent
to the successor Administrator.
(f) The
appointment of any successor Administrator shall be effective only after the
satisfaction of the Rating Agency Condition with respect to such
appointment.
(g) A
successor Administrator shall execute, acknowledge and deliver a written
acceptance of its appointment hereunder to the resigning Administrator and to
the Issuer. Thereupon the resignation or removal of the resigning
Administrator shall become effective, and the successor Administrator shall have
all the rights, powers and duties of the Administrator under this
Agreement. The successor Administrator shall mail a notice of its
succession to the Noteholders and the Certificateholders. The
resigning Administrator shall promptly transfer or cause to be transferred all
property and any related agreements, documents and statements held by it as
Administrator to the successor Administrator and the resigning Administrator
shall execute and deliver such instruments and do other things as may reasonably
be required for fully and certainly vesting in the successor Administrator all
rights, power, duties and obligations hereunder.
(2011-A
Owner Trust Administration Agreement)
8
(h) In
no event shall a resigning Administrator be liable for the acts or omissions of
any successor Administrator hereunder.
(i) In
the exercise or administration of its duties hereunder and under the Related
Documents, the Administrator may act directly or through its agents or attorneys
pursuant to agreements entered into with any of them, and the Administrator
shall not be liable for the conduct or misconduct of such agents or attorneys if
such agents or attorneys shall have been selected by the Administrator with due
care.
Section
9. Action upon Termination,
Resignation or Removal. Promptly upon the effective date of
termination of this Agreement pursuant to Section 8(a) or the resignation or
removal of the Administrator pursuant to Section 8(b) or (c), respectively, the
Administrator shall be entitled to be paid all fees and reimbursable expenses
accruing to it to the date of such termination, resignation or
removal. The Administrator shall forthwith upon such termination
pursuant to Section 8(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the
Administrator pursuant to Section 8(b) or (c), respectively, the Administrator
shall cooperate with the Issuer and take all reasonable steps requested to
assist the Issuer in making an orderly transfer of the duties of the
Administrator.
Section
10. Notices. Any
notice, report or other communication given hereunder shall be in writing and
addressed as follows:
(a) if
to the Issuer or the Owner Trustee, to:
In care
of Wilmington Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention: Corporate
Trust Administration
(b) if
to the Administrator, to:
Hyundai
Capital America
0000
Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Attention:
Vice President, Finance
with a
copy to the General Counsel
(2011-A
Owner Trust Administration Agreement)
9
(c) if
to the Indenture Trustee, to:
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Global Transaction Services – Hyundai Auto Receivables Trust 2011-A
or to
such other address as any party shall have provided to the other parties in
writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
Section
11. Amendments. This
Agreement may be amended from time to time by a written amendment duly executed
and delivered by the Issuer, the Administrator and the Indenture Trustee, with
prior written notice to each Rating Agency, without the consent of the Owner
Trustee, the Noteholders and the Certificateholders, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement to cure any ambiguity, to correct or supplement any provisions
in this agreement; provided that (a) such amendment will not materially and
adversely affect the interest of any Noteholder or Certificateholder as
confirmed by an opinion of counsel provided to the Indenture Trustee and (b) the
Administrator shall have delivered to the Owner Trustee and the Indenture
Trustee, an Opinion of Counsel stating that, in the opinion of such counsel,
either (i) all financing statements and continuation statements have been filed
that are necessary to fully preserve and protect the interest of the Owner
Trustee and the Indenture Trustee in the Receivables, and reciting the details
of such filings or referring to prior Opinions of Counsel in which such details
are given, or (ii) no such action shall be necessary to preserve and protect
such interest. This Agreement may also be amended by the Issuer, the
Administrator and the Indenture Trustee with the written consent of the Owner
Trustee and the holders of Notes evidencing at least a majority of the
Outstanding Amount of the Controlling Class and the holders of Trust
Certificates evidencing at least a majority of the Certificate Percentage
Interests for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of Noteholders or the Certificateholders; provided, however,
that no such amendment may (a) reduce the interest rate or principal amount of
any Note or Certificate or delay the Stated Maturity Date of any Note without
the consent of any Holder of such Note or (b) reduce the aforesaid
percentage of the holders of Notes and Trust Certificates which are required to
consent to any such amendment, without the consent of the holders of all the
outstanding Notes and Trust Certificates. Notwithstanding the foregoing, the
Administrator may not amend this Agreement without the permission of the Seller,
which permission shall not be unreasonably withheld. Prior to
consenting to any such amendment the Indenture Trustee shall have the right to
receive (at other than its own expense) an Opinion of Counsel that such
amendment is authorized or permitted by this Agreement.
(2011-A
Owner Trust Administration Agreement)
10
Section
12. Successors and
Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent
and satisfaction, if accepted by the assignee, shall bind the assignee hereunder
in the same manner as the Administrator is bound
hereunder. Notwithstanding the foregoing, this Agreement may be
assigned by the Administrator without the consent of the Issuer or the Owner
Trustee to a corporation or other organization that is a successor (by merger,
consolidation or purchase of assets) to the Administrator; provided that such
successor organization executes and delivers to the Issuer, the Owner Trustee
and the Indenture Trustee an agreement in which such corporation or other
organization agrees to be bound hereunder by the terms of said assignment in the
same manner as the Administrator is bound hereunder and represents that it has
the financial ability to satisfy its indemnification obligations
hereunder. Notwithstanding the foregoing, the Administrator can
transfer its obligations to any affiliate that succeeds to substantially all of
the assets and liabilities of the Administrator and who has represented and
warranted that it is not less creditworthy than the
Administrator. Subject to the foregoing, this Agreement shall bind
any successors or assigns of the parties hereto.
Section
13. GOVERNING
LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
14. Headings. The
section headings hereof have been inserted for convenience of reference only and
shall not be construed to affect the meaning, construction or effect of this
Agreement.
Section
15. Counterparts. This
Agreement may be executed in counterparts, each of which when so executed shall
be an original, but all of which together shall constitute but one and the same
agreement.
Section
16. Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section
17. Not Applicable to Citibank,
N.A. in Other Capacities. Nothing in this Agreement shall
affect any obligation Citibank, N.A. may have in any other
capacity.
Section
18. Limitation of Liability of
Owner Trustee and Indenture Trustee.
(a) Notwithstanding
anything contained herein to the contrary, this instrument has been executed by
the Owner Trustee solely in its capacity as Owner Trustee and in no event shall
the Owner Trustee in its individual capacity or any beneficial owner of the
Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder, as to all of which
recourse shall be had solely to the assets of the Issuer. For all
purposes of this Agreement, in the performance of any duties or obligations of
the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Articles 6, 7 and 8 of the Trust
Agreement.
(2011-A
Owner Trust Administration Agreement)
11
(b) Notwithstanding
anything contained herein to the contrary, this Agreement has been countersigned
by the Indenture Trustee solely as Indenture Trustee and in no event shall the
Indenture Trustee have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
(c) No
recourse under any obligation, covenant or agreement of the Issuer contained in
this Agreement shall be had against any agent of the Issuer (including the
Administrator and the Owner Trustee) as such by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of any statute or
otherwise; it being expressly agreed and understood that this Agreement is
solely an obligation of the Issuer as a Delaware statutory trust, and that no
personal liability whatever shall attach to or be incurred by any agent of the
Issuer (including the Administrator and the Owner Trustee), as such, under or by
reason of any of the obligations, covenants or agreements of the Issuer
contained in this Agreement, or implied therefrom, and that any and all personal
liability for breaches by the Issuer of any such obligations, covenants or
agreements, either at common law or at equity, or by statute or constitution, of
every such agent is hereby expressly waived as a condition of and in
consideration for the execution of this Agreement.
Section
19. Third-Party
Beneficiary. The Seller, the Depositor and the Owner Trustee
are third-party beneficiaries to this Agreement and are entitled to the rights
and benefits hereunder and may enforce the provisions hereof as if each were a
party hereto.
Section
20. Nonpetition
Covenants. Notwithstanding any prior termination of this
Agreement, the Administrator and the Indenture Trustee shall not, prior to the
date which is one year and one day after the termination of this Agreement with
respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Issuer to invoke the process of any court of government authority for the
purpose of commencing or sustaining a case against the Issuer under any Federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of the Issuer.
(2011-A
Owner Trust Administration Agreement)
12
Section
21. Liability of
Administrator. Notwithstanding any provision of this
Agreement, the Administrator shall not have any obligations under this Agreement
other than those specifically set forth herein, and no implied obligations of
the Administrator shall be read into this Agreement. Neither the
Administrator nor any of its directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken in good faith by it or them
under or in connection with this Agreement, except for its or their own
negligence or willful misconduct and in no event shall the Administrator be
liable under or in connection with this Agreement for indirect, special or
consequential losses or damages of any kind, including lost profits, even if
advised of the possibility thereof and regardless of the form of action by which
such losses or damages may be claimed. Without limiting the
foregoing, the Administrator may (a) consult with legal counsel (including
counsel for the Issuer), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts and (b) shall incur no liability under or in respect of
this Agreement by acting upon any notice (including notice by telephone),
consent, certificate or other instrument or writing (which may be by facsimile)
believed by it to be genuine and signed or sent by the proper party or
parties.
[SIGNATURE
PAGES FOLLOW]
(2011-A
Owner Trust Administration Agreement)
13
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and
delivered as of the day and year first above written.
|
By:
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WILMINGTON
TRUST COMPANY,
|
|
not
in its individual capacity
|
|
|
but
solely as Owner Trustee
|
|
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By:
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/s/ Xxxxxx X. Xxxxx
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Name:
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Xxxxxx
X. Xxxxx
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Title:
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Assistant
Vice President
|
(2011-A
Owner Trust Administration Agreement)
S-1
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CITIBANK,
N.A.,
|
|
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not
in its individual capacity
|
|
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but
solely as Indenture Trustee
|
|
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By:
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/s/ Xxxxx Xxxxxxxx
|
|
Name:
|
Xxxxx
Xxxxxxxx
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|
Title:
|
Vice
President
|
(2011-A
Owner Trust Administration Agreement)
S-2
|
HYUNDAI CAPITAL
AMERICA,
|
|
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as
Administrator
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|
|
By:
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/s/ Xxx Xxxx Ko
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|
Name:
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Xxx
Xxxx Ko
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|
Title:
|
Treasurer
|
(2011-A
Owner Trust Administration Agreement)
S-3
EXHIBIT
A
POWER
OF ATTORNEY
|
STATE
OF
|
)
|
|
)
|
|
|
COUNTY
OF
|
)
|
KNOW ALL
MEN BY THESE PRESENTS, that Hyundai Auto Receivables Trust 2011-A (the “Issuer”), does hereby
make, constitute and appoint Hyundai Capital America, as administrator (the
“Administrator”) under
the Owner Trust Administration Agreement dated January 27, 2011 (the “Administration
Agreement”), among the Issuer, the Administrator and Citibank, N.A.,
as Indenture Trustee, as the same may be amended from time to time, and its
agents and attorneys, as Attorneys-in-Fact to execute on behalf of the Owner
Trustee or the Issuer all such documents, reports, filings, instruments,
certificates and opinions as it should be the duty of the Owner Trustee or the
Issuer to prepare, file or deliver pursuant to the Basic Documents, or pursuant
to Section 5.04(a), (b), (c) or (d) of the Trust Agreement, including, without
limitation, to appear for and represent the Owner Trustee and the Issuer in
connection with the preparation, filing and audit of federal, state and local
tax returns pertaining to the Issuer, and with full power to perform any and all
acts associated with such returns and audits that the Owner Trustee could
perform, including without limitation, the right to distribute and receive
confidential information, defend and assert positions in response to audits,
initiate and defend litigation, and to execute waivers of restrictions on
assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements.
All
powers of attorney for this purpose heretofore filed or executed by the Owner
Trustee are hereby revoked.
Capitalized
terms that are used and not otherwise defined herein shall have the meanings
ascribed thereto in the Administration Agreement.
EXECUTED
this ___ day
of ________, 2011.
|
By:
|
WILMINGTON
TRUST COMPANY,
|
|
|
not
in its individual capacity
|
||
|
but
solely as Owner Trustee
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
(2011-A
Owner Trust Administration Agreement)
Exhibit
A-1
|
STATE
OF
|
)
|
|
)
|
|
|
COUNTY
OF
|
)
|
Before
me, the undersigned authority, on this day personally appeared
________________________________, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he/she
signed the same for the purposes and considerations therein
expressed.
Sworn to
before me this ___ day of ________, 2011.
Notary
Public - State of _________________
(2011-A
Owner Trust Administration Agreement)
Exhibit
A-2
