OWNER TRUST ADMINISTRATION AGREEMENT among HYUNDAI AUTO RECEIVABLES TRUST 2007-A, as Issuer, HYUNDAI MOTOR FINANCE COMPANY, as Administrator, and CITIBANK, N.A., as Indenture Trustee Dated as of September 28, 2007
Exhibit
10.8
EXECUTION
COPY
among
HYUNDAI
AUTO RECEIVABLES TRUST 2007-A, as Issuer,
HYUNDAI
MOTOR FINANCE COMPANY, as Administrator,
and
CITIBANK,
N.A., as Indenture Trustee
Dated
as
of September 28, 2007
TABLE
OF CONTENTS
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Page
|
||
|
Duties
of the Administrator with Respect to the Depository Agreement and
the
Indenture
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2
|
|
|
Section
1.2
|
Additional
Duties
|
5
|
|
Section
1.3
|
Non-Ministerial
Matters
|
6
|
|
Section
2.
|
Records
|
7
|
|
Section
3.
|
Compensation
|
7
|
|
Section
4.
|
Additional
Information To Be Furnished to the Issuer
|
7
|
|
Section
5.
|
Independence
of the Administrator
|
7
|
|
Section
6.
|
No
Joint Venture
|
7
|
|
Section
7.
|
Other
Activities of Administrator
|
7
|
|
Section
8.
|
Term
of Agreement; Resignation and Removal of Administrator
|
7
|
|
Section
9.
|
Action
upon Termination, Resignation or Removal
|
9
|
|
Section
10.
|
Notices
|
9
|
|
Section
11.
|
Amendments
|
10
|
|
Section
12.
|
Successors
and Assigns
|
11
|
|
Section
13.
|
GOVERNING
LAW
|
11
|
|
Section
14.
|
Headings
|
11
|
|
Section
15.
|
Counterparts
|
11
|
|
Section
16.
|
Severability
|
11
|
|
Section
17.
|
Not
Applicable to Citibank, N.A. in Other Capacities
|
12
|
|
Section
18.
|
Limitation
of Liability of Owner Trustee and Indenture Trustee
|
12
|
|
Section
19.
|
Third-Party
Beneficiary
|
12
|
|
Section
20.
|
Nonpetition
Covenants
|
12
|
|
Section
21.
|
Liability
of Xxxxxxxxxxxxx
|
00
|
|
Xxxxxxx
00.
|
Limitation
or Rights
|
13
|
|
Exhibit
A
|
POWER
OF ATTORNEY
|
A-1
|
-i-
This
OWNER TRUST ADMINISTRATION AGREEMENT dated as of September 28, 2007 among
HYUNDAI AUTO RECEIVABLES TRUST 2007-A, a Delaware statutory trust (the
“Issuer”),
HYUNDAI MOTOR FINANCE COMPANY, 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 March 7,
2007 and is governed by an Amended and Restated Trust Agreement dated as of
September 28, 2007 (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 Motor Finance Company, as administrator (the “Administrator”),
and
is issuing 5.29050% Asset Backed Notes, Class A-1, 5.11% Asset Backed
Notes, Class A-2a, LIBOR + 0.35% Asset Backed Notes, Class A-2b, 5.04%
Asset Backed Notes, Class A-3a, LIBOR + 0.40% Asset Backed Notes, Class
A-3b and 5.21% Asset Backed Notes, Class A-4 (collectively, the “Notes”)
pursuant to the Indenture dated as of September 28, 2007 (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, including (i) a Sale and Servicing Agreement dated as of
September 28, 2007 (as amended and supplemented from time to time, the
“Sale
and Servicing Agreement”),
among
Hyundai Motor Finance Company, 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 September 28, 2007 (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, (iii) the Indenture and (iv) the Interest Rate Swap
Agreement (the Sale and Servicing Agreement, the Depository Agreement, the
Indenture, the Trust Agreement and the Interest Rate Swap Agreement being
referred to hereinafter collectively as the “Related
Agreements”);
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:
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);
2
(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 Default under the Sale and Servicing Agreement and, if such Servicer
Default 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
3.10(b));
(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);
3
(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);
4
(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).
Section
1.2 Additional
Duties.
(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 Agreements 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.
5
(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 Owners; 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 Owner
to prepare its federal and state income tax returns.
(c) The
Administrator shall satisfy its obligations with respect to clause (ii) 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.
Section
1.3 Non-Ministerial
Matters.
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.
6
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.
7
(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.
(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 receipt
of written confirmation from each Rating Agency that the proposed appointment
will not result in the qualification, downgrading or withdrawal of any rating
assigned to the Notes by such Rating Agency.
8
(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.
(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:
Hyundai
Auto Receivables Trust 2007-A
In
care
of Wilmington Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration
9
(b) if
to the
Administrator, to:
Hyundai
Motor Finance Company
00000
Xxxxxxx Xxxxxx
Xxxxxxxx
Xxxxxx, XX 00000
Attention:
Vice President, Finance
with
a
copy to the General Counsel
(c) if
to the
Indenture Trustee, to:
Citibank,
N.A.
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Structured Finance Agency and Trust - Hyundai Auto Receivables Trust
2007-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, the Certificateholders and the Swap Counterparty,
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; provided, further, that such amendment
shall
not materially and adversely affect the rights or obligations of the Swap
Counterparty under the Interest Rate Swap Agreement unless the Swap Counterparty
shall have consented in writing to such amendment. 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 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; provided, further, that such amendment shall not materially and
adversely affect the rights or obligations of the Swap Counterparty under the
Interest Rate Swap Agreement unless the Swap Counterparty shall have consented
in writing to such amendment. 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.
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.
11
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 VI, VII and VIII of the Trust
Agreement.
(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, the Owner Trustee and the Swap Counterparty 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.
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.
Section
22. Limitation
or Rights.
All of
the rights of the Swap Counterparty in, to and under this Agreement, if any,
shall terminate upon the termination of the Interest Rate Swap Agreement in
accordance with the terms thereof and the payment in full of all amounts owing
to the Swap Counterparty under such Interest Rate Swap Agreement.
[SIGNATURE
PAGES FOLLOW]
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.
| HYUNDAI AUTO RECEIVABLES TRUST 2007-A | ||
| By: |
WILMINGTON
TRUST COMPANY,
not
in its individual capacity
but
solely as Owner Trustee
|
|
| |
|
|
| By: | /s/ J. Xxxxxxxxxxx Xxxxxx | |
|
Name: J. Xxxxxxxxxxx Xxxxxx |
||
| Title: Financial Services Officer | ||
S-1
|
CITIBANK,
N.A.,
not
in its individual capacity
but
solely as Indenture Trustee
|
||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxx | |
|
Name: Xxxxx Xxxxxxxx |
||
| Title: Vice President | ||
S-2
|
HYUNDAI
MOTOR FINANCE COMPANY,
as
Administrator
|
||
| |
|
|
| By: | /s/ Xxx Xxxx Ko | |
|
Name: Xxx Xxxx Ko |
||
| Title: Treasurer | ||
S-3
EXHIBIT
A
POWER
OF ATTORNEY
| STATE OF | ) |
| ) | |
| COUNTY OF | ) |
KNOW
ALL
MEN BY THESE PRESENTS, that Hyundai Auto Receivables Trust 2007-A (the
“Issuer”),
does
hereby make, constitute and appoint Hyundai Motor Finance Company, as
administrator (the “Administrator”)
under
the Owner Trust Administration Agreement dated September 28, 2007 (the
“Administration
Agreement”),
among
the Issuer, the Administrator, the Owner Trustee, 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
September, 2007.
| HYUNDAI AUTO RECEIVABLES TRUST 2007-A | ||
| |
|
|
| By: |
WILMINGTON
TRUST COMPANY,
not
in its individual capacity
but
solely as Owner Trustee
|
|
| By: | ||
|
Name:
|
||
|
|
Title:
|
|
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 September, 2007.
Notary
Public - State of _________________
Exhibit
A-2
