ASSET REPRESENTATIONS REVIEW AGREEMENT among HYUNDAI AUTO RECEIVABLES TRUST 2024-A, as Issuer, HYUNDAI CAPITAL AMERICA, as Servicer and CLAYTON FIXED INCOME SERVICES LLC, as Asset Representations Reviewer Dated as of March 20, 2024
Exhibit 10.5
ASSET REPRESENTATIONS REVIEW AGREEMENT
among
HYUNDAI AUTO RECEIVABLES TRUST 2024-A,
as Issuer,
HYUNDAI CAPITAL AMERICA,
as Servicer
and
XXXXXXX FIXED INCOME SERVICES LLC,
as Asset Representations Reviewer
Dated as of March 20, 2024
Table of Contents
Page
ARTICLE I USAGE AND DEFINITIONS | 2 | |
Section 1.1. | Usage and Definitions | 2 |
Section 1.2. | Additional Definitions | 2 |
ARTICLE II ENGAGEMENT OF ASSET REPRESENTATIONS REVIEWER | 3 | |
Section 2.1. | Engagement; Acceptance | 3 |
Section 2.2. | Confirmation of Scope | 3 |
ARTICLE III ASSET REPRESENTATIONS REVIEW PROCESS | 3 | |
Section 3.1. | Review Notices | 3 |
Section 3.2. | Identification of Subject Receivables | 3 |
Section 3.3. | Review Materials | 4 |
Section 3.4. | Performance of Reviews | 4 |
Section 3.5. | Review Reports | 5 |
Section 3.6. | Limitations on Review Obligations | 6 |
Section 3.7. | Dispute Resolution | 6 |
ARTICLE IV ASSET REPRESENTATIONS REVIEWER | 6 | |
Section 4.1. | Representations and Warranties | 6 |
Section 4.2. | Covenants | 7 |
Section 4.3. | Fees, Expenses and Indemnities | 8 |
Section 4.4. | Limitation on Liability | 9 |
Section 4.5. | Indemnification by Asset Representations Reviewer | 9 |
Section 4.6. | Indemnification of Asset Representations Reviewer | 9 |
Section 4.7. | Inspections of Asset Representations Reviewer | 10 |
Section 4.8. | Delegation of Obligations | 10 |
Section 4.9. | Confidential Information | 10 |
Section 4.10. | Personally Identifiable Information | 12 |
ARTICLE V RESIGNATION AND REMOVAL; SUCCESSOR ASSET REPRESENTATIONS REVIEWER | 14 | |
Section 5.1. | Eligibility Requirements for Asset Representations Reviewer | 14 |
Section 5.2. | Resignation and Removal of Asset Representations Reviewer | 14 |
Section 5.3. | Successor Asset Representations Reviewer | 15 |
Section 5.4. | Merger, Consolidation or Succession | 15 |
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Table of Contents
(continued)
Page
ARTICLE VI OTHER AGREEMENTS | 15 | |
Section 6.1. | Independence of Asset Representations Reviewer | 15 |
Section 6.2. | No Petition | 15 |
Section 6.3. | Limitation of Liability of Owner Trustee | 16 |
Section 6.4. | Termination of Agreement | 16 |
ARTICLE VII MISCELLANEOUS PROVISIONS | 16 | |
Section 7.1. | Amendments | 16 |
Section 7.2. | Assignment; Benefit of Agreement; Third Party Beneficiaries | 17 |
Section 7.3. | Notices | 17 |
Section 7.4. | Governing Law; Submission to Jurisdiction; Waiver of Jury Trial | 18 |
Section 7.5. | No Waiver; Remedies | 18 |
Section 7.6. | Severability | 19 |
Section 7.7. | Headings | 19 |
Section 7.8. | Counterparts; Electronic Signatures and Transmission | 19 |
Schedule A | Representations and Warranties, Review Materials and Tests |
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ASSET REPRESENTATIONS REVIEW AGREEMENT, dated as of March 20, 2024 (this “Agreement”), among HYUNDAI AUTO RECEIVABLES TRUST 2024-A, a Delaware statutory trust, as issuer (the “Issuer”), HYUNDAI CAPITAL AMERICA, a California corporation (“HCA”), as servicer (the “Servicer”), and XXXXXXX FIXED INCOME SERVICES LLC , a Delaware limited liability company, as asset representations reviewer (the “Asset Representations Reviewer”).
ARTICLE I
USAGE AND DEFINITIONS
Section 1.1. Usage and Definitions. (a) Except as otherwise specified herein or if the context may otherwise require, capitalized terms not defined in this Agreement shall have the respective meanings assigned such terms set forth in Appendix A to the Sale and Servicing Agreement, dated as of the date hereof (the “Sale and Servicing Agreement”), by and among the Depositor, HCA, as seller and servicer, Hyundai Auto Receivables Trust 2024-A, as issuer and Citibank, N.A., as indenture trustee (the “Indenture Trustee”).
(b) With respect to all terms in this Agreement, the singular includes the plural and the plural the singular; words importing any gender include the other genders; references to “writing” include printing, typing, lithography and other means of reproducing words in a visible form; references to agreements and other contractual instruments include all subsequent amendments, amendments and restatements, and supplements thereto or changes therein entered into in accordance with their respective terms and not prohibited by this Agreement; references to Persons include their permitted successors and assigns; references to laws include their amendments and supplements, the rules and regulations thereunder and any successors thereto; the term “including” means “including without limitation;” and the term “or” is not exclusive.
Section 1.2. Additional Definitions. The following terms have the meanings given below:
“Asset Representations Review” means the performance by the Asset Representations Reviewer of the testing procedures for each Test and each Subject Receivable according to Section 3.4.
“Confidential Information” has the meaning stated in Section 4.9(b).
“Information Recipients” has the meaning stated in Section 4.9(a).
“Issuer PII” has the meaning stated in Section 4.10.
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“Personally Identifiable Information” or “PII” has the meaning stated in Section 4.10(a).
“Review Fee” has the meaning stated in Section 4.3(b).
“Review Materials” means, for an Asset Representations Review and a Subject Receivable, the documents and other materials for each Test listed under “Review Materials” in Schedule A.
“Review Report” means, for an Asset Representations Review, the report of the Asset Representations Reviewer prepared according to Section 3.5.
“Test” has the meaning stated in Section 3.4(a).
“Test Complete” has the meaning stated in Section 3.4(c).
“Test Fail” has the meaning stated in Section 3.4(a).
“Test Incomplete” has the meaning stated in Section 3.4(a).
“Test Pass” has the meaning stated in Section 3.4(a).
ARTICLE II
ENGAGEMENT OF ASSET REPRESENTATIONS REVIEWER
ARTICLE III
ASSET REPRESENTATIONS REVIEW PROCESS
Section 3.1. Review Notices. On receipt of a Review Notice in accordance with Section 7.05 of the Indenture, the Asset Representations Reviewer will commence an Asset Representations Review. The Asset Representations Reviewer will have no obligation to start an Asset Representations Review until a Review Notice is received.
Section 3.2. Identification of Subject Receivables. Within ten (10) Business Days after receipt of a Review Notice, the Servicer will deliver to the Asset Representations Reviewer a list of the Subject Receivables.
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Section 3.3. Review Materials.
(a) Access to Review Materials. The Servicer will give the Asset Representations Reviewer access to the Review Materials for all of the Subject Receivables within sixty (60) calendar days after receipt of the Review Notice in one or more of the following ways in the Servicer’s reasonable discretion: (i) by electronic posting of Review Materials to a password-protected website to which the Asset Representations Reviewer has access, (ii) by providing originals or photocopies of documents relating to the Subject Receivables at one of the properties of the Servicer or (iii) in another manner agreed by the Servicer and the Asset Representations Reviewer. The Servicer may redact or remove PII from the Review Materials so long as all information in the Review Materials necessary for the Asset Representations Reviewer to complete the Asset Representations Review remains intact and unchanged.
(b) Missing or Insufficient Review Materials. The Asset Representations Reviewer will review the Review Materials to determine if any Review Materials are missing or insufficient for the Asset Representations Reviewer to perform any Test. If the Asset Representations Reviewer reasonably determines that any of the Review Materials are missing or insufficient for the Asset Representations Reviewer to perform any Test, the Asset Representations Reviewer will notify the Servicer promptly, and in any event no less than twenty (20) calendar days before completing the Review, and the Servicer will use reasonable efforts to provide the Asset Representations Reviewer access to such missing Review Materials or other documents or information to correct the insufficiency within fifteen (15) calendar days. If the missing or insufficient Review Materials have not been provided by the Servicer within sixty (60) calendar days, the parties agree that the Subject Receivable will have a Test Incomplete for the related Test(s) and the Review Report will indicate the reason for the Test Incomplete.
Section 3.4. Performance of Reviews.
(a) Test Procedures. For an Asset Representations Review, the Asset Representations Reviewer will perform for each Subject Receivable the procedures listed under “Tests” in Schedule A for each representation and warranty (each, a “Test”), using the Review Materials listed for each such Test in Schedule A. For each Test and Subject Receivable, the Asset Representations Reviewer will determine in its reasonable judgment if the Test has been satisfied (a “Test Pass”), if the Test has not been satisfied (a “Test Fail”) or if the Test could not be concluded as a result of missing or incomplete Review Materials (a “Test Incomplete”). The Asset Representations Reviewer will use such determination for all Subject Receivables that are subject to the same Test.
(b) Review Period. The Asset Representations Reviewer will complete the Asset Representations Review of all of the Subject Receivables within sixty (60) calendar days after receiving access to the Review Materials under Section 3.3(a). However, if missing or additional Review Materials are provided to the Asset Representations Reviewer under Section 3.3(b), the review period will be extended for an additional thirty (30) calendar days.
(c) Completion of Review for Certain Subject Receivables. Following the delivery of the list of the Subject Receivables and before the delivery of the Review Report by the Asset Representations Reviewer, the Servicer may notify the Asset Representations Reviewer if a Subject Receivable is paid in full by the Obligor or purchased from the Issuer by the Seller or the Servicer according to the applicable Basic Document. On receipt of notice, the Asset Representations Reviewer will immediately terminate all Tests of such Receivables and the Review of such Receivables will be considered complete (a “Test Complete”). In this case, the Review Report will indicate a Test Complete for the Receivables and the related reason.
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(d) Previously Reviewed Receivable. If a Subject Receivable was included in a prior Asset Representations Review, the Asset Representations Reviewer will not conduct additional Tests on any such duplicate Subject Receivable unless such Subject Receivable was deemed a Test Incomplete as a result of the failure of the Servicer to provide missing Review Material for such Subject Receivable and the Servicer elects to have such Subject Receivable included in the current Asset Representations Review. The Asset Representations Reviewer will include the previously reported Test results for any such duplicate Subject Receivable within the Review Report for the current Asset Representations Review.
(e) Duplicative Tests. If the same Test is required for more than one representation or warranty listed on Schedule A, the Asset Representations Reviewer will only perform the Test once for each Subject Receivable but will report the results of the Test for each applicable representation or warranty on the Review Report.
(f) Termination of Review. If an Asset Representations Review is in process and all of the Notes will be paid in full on the next Payment Date, the Servicer will notify the Asset Representations Reviewer and the Indenture Trustee no less than ten days before that Payment Date. On receipt of notice, the Asset Representations Reviewer will terminate the Asset Representations Review immediately and will have no obligation to deliver a Review Report.
Section 3.5. Review Reports. (a) Within ten (10) calendar days after the end of the Asset Representations Review period under Section 3.4(b), the Asset Representations Reviewer will deliver to the Issuer, the Servicer and the Indenture Trustee a Review Report indicating for each Subject Receivable whether there was a Test Pass, a Test Incomplete or a Test Fail for each Test, or whether the Subject Receivable was a Test Complete and the related reason. The Review Report will contain a summary of the findings and conclusions of the Asset Representations Reviewer with respect to the Asset Representations Review to be included in the Issuer’s Form 10-D report for the Collection Period in which the Review Report is received. The Asset Representations Reviewer will ensure that the Review Report does not contain any Issuer PII. On the reasonable request of the Servicer, the Asset Representations Reviewer will provide additional details on the Test results.
(b) Questions About Review. The Asset Representations Reviewer will make appropriate personnel available to respond in writing to written questions or requests for clarification of any Review Report from the Servicer until payment of the Notes in full. The Asset Representations Reviewer will have no obligation to respond to questions or requests for clarification from Noteholders or any Person other than the Servicer and will direct such Persons to submit written questions or requests to the Servicer.
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Section 3.6. Limitations on Review Obligations. The Asset Representations Reviewer may rely on the information in any Review Notice, the list(s) of the Subject Receivables provided by the Servicer, and the accuracy and completeness of the Review Materials. The Asset Representations Reviewer will have no obligation:
(a) to determine whether a Delinquency Trigger has occurred or whether the required percentage of Noteholders has voted to direct an Asset Representations Review under the Indenture;
(b) to determine which Receivables are Subject Receivables;
(c) to confirm the validity of the Review Materials; or
(d) to take any action or cause any other party to take any action under any of the Basic Documents or otherwise to enforce any remedies against any Person for breaches of representations or warranties about the Subject Receivables.
Section 3.7. Dispute Resolution. The Asset Representations Reviewer acknowledges and agrees that any Review Report may be used by the Issuer, the Seller or the Servicer in any dispute resolution proceeding related to the Subject Receivables. No additional fees or reimbursement of expenses shall be paid to the Asset Representations Reviewer regarding the Issuer’s, the Seller’s or the Servicer’s use of any Review Report; provided that the Asset Representations Reviewer will be reimbursed for its out-of-pocket expenses incurred in its participation in any dispute resolution proceeding.
ARTICLE IV
ASSET REPRESENTATIONS REVIEWER
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Section 4.2. Covenants. The Asset Representations Reviewer covenants and agrees that:
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Section 4.3. Fees, Expenses and Indemnities.
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Section 4.6. Indemnification of Asset Representations Reviewer.
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Section 4.9. Confidential Information.
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(i) lists of Subject Receivables and any related Review Materials;
(ii) origination and servicing guidelines, policies and procedures and form contracts; and
(iii) notes, analyses, compilations, studies or other documents or records prepared by the Servicer, which contain information supplied by or on behalf of the Servicer or its representatives.
However, Confidential Information will not include information that (A) is or becomes generally available to the public other than as a result of disclosure by the Information Recipients, (B) was available to, or becomes available to, the Information Recipients on a non-confidential basis from a Person or entity other than the Issuer or the Servicer before its disclosure to the Information Recipients who, to the knowledge of the Information Recipient is not bound by a confidentiality agreement with the Issuer or the Servicer and is not prohibited from transmitting the information to the Information Recipients, (C) is independently developed by the Information Recipients without the use of the Confidential Information, as shown by the Information Recipients’ files and records or other evidence in the Information Recipients’ possession or (D) the Issuer or the Servicer provides permission to the applicable Information Recipients to release.
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Section 4.10. Personally Identifiable Information.
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(i) The Asset Representations Reviewer will not disclose Issuer PII to its personnel or allow its personnel access to Issuer PII except (A) for the Asset Representations Reviewer personnel who require Issuer PII to perform an Asset Representations Review, (B) with the prior consent of the Issuer or (C) as required by applicable law. When permitted, the disclosure of or access to Issuer PII will be limited to the specific information necessary for the individual to complete the assigned task. The Asset Representations Reviewer will inform personnel with access to Issuer PII of the confidentiality requirements in this Agreement and train its personnel with access to Issuer PII on the proper use and protection of Issuer PII.
(ii) The Asset Representations Reviewer will not sell, disclose, provide or exchange Issuer PII with or to any third party without the prior consent of the Issuer.
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ARTICLE V
RESIGNATION AND REMOVAL;
SUCCESSOR ASSET REPRESENTATIONS REVIEWER
Section 5.1. Eligibility Requirements for Asset Representations Reviewer. The Asset Representations Reviewer must be a Person who (a) is not Affiliated with the Sponsor, the Depositor, the Servicer, the Indenture Trustee, the Owner Trustee or any of their Affiliates and (b) was not, and is not Affiliated with a Person that was, engaged by the Sponsor or any underwriter to perform any due diligence on the Receivables prior to the Closing Date.
Section 5.2. Resignation and Removal of Asset Representations Reviewer.
(a) No Resignation of Asset Representations Reviewer. The Asset Representations Reviewer will not resign as Asset Representations Reviewer unless the Asset Representations Reviewer no longer meets the eligibility requirements in Section 5.1. The Asset Representations Reviewer will notify the Issuer and the Servicer of its resignation as soon as practicable after it determines it is required to resign and stating the resignation date and including an Opinion of Counsel supporting its determination.
(b) Removal of Asset Representations Reviewer. If any of the following events occur, the Issuer, by notice to the Asset Representations Reviewer, may, and in the case of clause (i) below, shall, remove the Asset Representations Reviewer and terminate its rights and obligations under this Agreement:
(i) the Asset Representations Reviewer no longer meets the eligibility requirements in Section 5.1;
(ii) the Asset Representations Reviewer breaches of any of its representations, warranties, covenants or obligations in this Agreement; or
(iii) an Insolvency Event of the Asset Representations Reviewer occurs.
(c) Notice of Resignation or Removal. The Issuer will notify the Servicer and the Indenture Trustee of any resignation or removal of the Asset Representations Reviewer.
(d) Continue to Perform After Resignation or Removal. No resignation or removal of the Asset Representations Reviewer will be effective, and the Asset Representations Reviewer will continue to perform its obligations under this Agreement, until a successor Asset Representations Reviewer has accepted its engagement according to Section 5.3(b).
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Section 5.3. Successor Asset Representations Reviewer.
(a) Engagement of Successor Asset Representations Reviewer. Following the resignation or removal of the Asset Representations Reviewer, the Issuer will appoint a successor Asset Representations Reviewer who meets the eligibility requirements of Section 5.1.
(b) Effectiveness of Resignation or Removal. No resignation or removal of the Asset Representations Reviewer will be effective until the successor Asset Representations Reviewer has executed and delivered to the Issuer and the Servicer an agreement accepting its engagement and agreeing to perform the obligations of the Asset Representations Reviewer under this Agreement or entered into a new agreement with the Issuer on substantially the same terms as this Agreement.
(c) Transition and Expenses. If the Asset Representations Reviewer resigns or is removed, the Asset Representations Reviewer will cooperate with the Issuer and take all actions reasonably requested to assist the Issuer in making an orderly transition of the Asset Representations Reviewer’s rights and obligations under this Agreement to the successor Asset Representations Reviewer. The Asset Representations Reviewer will pay the reasonable expenses (including the fees and expenses of counsel) of transitioning the Asset Representations Reviewer’s obligations under this Agreement and preparing the successor Asset Representations Reviewer to take on such obligations on receipt of an invoice with reasonable detail of the expenses from the Issuer or the successor Asset Representations Reviewer.
Section 5.4. Merger, Consolidation or Succession. Any Person (a) into which the Asset Representations Reviewer is merged or consolidated, (b) resulting from any merger or consolidation to which the Asset Representations Reviewer is a party or (c) succeeding to the business of the Asset Representations Reviewer, if that Person meets the eligibility requirements in Section 5.1, will be the successor to the Asset Representations Reviewer under this Agreement. Such Person will execute and deliver to the Issuer and the Servicer an agreement to assume the Asset Representations Reviewer’s obligations under this Agreement (unless the assumption happens by operation of law).
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Section 6.3. Limitation of Liability of Owner Trustee. Notwithstanding anything contained herein to the contrary, (a) this instrument is executed and delivered by U.S. Bank Trust National Association, not individually or personally but solely as Owner Trustee of Hyundai Auto Receivables Trust 2024-A, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, undertakings and agreements by U.S. Bank Trust National Association but is made and intended for the purpose for binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on U.S. Bank Trust National Association individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (d) U.S. Bank Trust National Association has made no investigation as to the accuracy or completeness of any representations or warranties made by the Issuer in this instrument and (e) under no circumstances shall U.S. Bank Trust National Association be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this instrument or any other related documents. In no event will U.S. Bank Trust National Association in its individual capacity or a beneficial owner of the Issuer be liable for the Issuer’s obligations under this Agreement. For all purposes under this Agreement, the Owner Trustee will be subject to, and entitled to the benefits of, the Trust Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
(a) This Agreement may be amended by the parties hereto, but without the consent of the Depositor, the Indenture Trustee, the Owner Trustee, any of the Noteholders or the Certificateholders, to cure any ambiguity, to correct or supplement any provisions in this Agreement, or for the purpose of correcting any inconsistency with the Prospectus or for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions in this Agreement or of modifying in any manner the rights of the Noteholders or the Certificateholders, subject to one of the following conditions:
(i) the Servicer delivers an Opinion of Counsel or an Officer’s Certificate to the Indenture Trustee to the effect that such amendment will not materially and adversely affect the interests of the Noteholders (and, if the Certificates are then held by anyone other than the Depositor or a U.S. Affiliate of the Depositor, the Certificateholders); or
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(ii) the Rating Agency Condition is satisfied (other than with respect to S&P, but with satisfaction of the Rating Agency Notification with respect to S&P if S&P is rating any Outstanding Class of Notes) with respect to such action.
(b) With respect to any amendment for which clauses (a)(i) or (a)(ii) above cannot be satisfied, this Agreement can be amended with the consent of the Noteholders holding not less than a majority of the Outstanding Amount of the Controlling Class of Notes. It shall not be necessary for the consent of Noteholders pursuant to this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such approval shall be with respect to the substance thereof.
(c) Promptly after the execution of any amendment, the Administrator shall furnish written notification of the substance of such amendment to each Noteholder and each Rating Agency.
Section 7.2. Assignment; Benefit of Agreement; Third Party Beneficiaries.
(i) For overnight mail, on delivery or, for a letter mailed by registered first class mail, postage prepaid, three days after deposit in the mail;
(ii) for an email, when receipt is confirmed by telephone or reply email from the recipient; and
(iii) for an electronic posting to a password-protected website to which the recipient has access, on delivery (without the requirement of confirmation of receipt) of an email to that recipient stating that the electronic posting has occurred.
(b) Notice Addresses. Any notice, request, demand, consent, waiver or other communication will be delivered or addressed to: (i) (a) in the case of the Servicer, to Hyundai Capital America, 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, Attention: Treasurer, (b) in the case of the Issuer, to Hyundai Auto Receivables Trust 2024-A, c/o Hyundai Capital America, 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, Attention: Treasurer, (c) in the case of the Indenture Trustee, to Citibank, N.A., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Agency & Trust – XXXX 2024-A, and (d) in the case of the Asset Representations Reviewer, to Xxxxxxx Fixed Income Services LLC, c/o Covius Services, LLC, 000 X. Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, XX 00000, Attention: Legal Department, with a copy to XXXXxxxxxx@xxxxxxx.xxx, or, (ii) as to each party, at such other address or email as shall be designated by such party in a written notice to each other party.
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Section 7.4. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. 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.
EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK JURISDICTION OVER SUCH PARTY, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT IN ANY OF THE AFORESAID COURTS, THAT ANY SUCH COURT LACKS JURISDICTION OVER SUCH PARTY. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
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Section 7.8. Counterparts; Electronic Signatures and Transmission.
(a) This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by Electronic Transmission shall be effective as delivery of a manually executed counterpart of this Agreement.
(b) For purposes of this Agreement, any reference to “written” or “in writing” means any form of written communication, including, without limitation, electronic signatures, and any such written communication may be transmitted by Electronic Transmission. The Indenture Trustee and the Issuer are authorized to accept written instructions, directions, reports, notices or other communications signed manually, by way of facsimiled signatures, or delivered by Electronic Transmission. In the absence of bad faith or negligence on its part, each of the Indenture Trustee and the Issuer may conclusively rely on the fact that the Person sending instructions, directions, reports, notices or other communications or information by Electronic Transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such Electronic Transmission and, in the absence of bad faith or negligence, shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information to the Indenture Trustee or the Issuer, including, without limitation, the risk of either the Indenture Trustee or Issuer acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
(c) The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act or any other similar state laws based on the Uniform Electronic Transactions Act.
(d) Notwithstanding anything to the contrary in this Agreement, any and all communications (both text and attachments) by or from the Indenture Trustee that the Indenture Trustee in its sole discretion deems to contain confidential, proprietary and/or sensitive information and sent by Electronic Transmission will be encrypted. The recipient of the Electronic Transmission may be required to complete a one-time registration process.
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EXECUTED BY: | ||
HYUNDAI AUTO RECEIVABLES TRUST 2024-A, | ||
as Issuer | ||
By: | U.S. Bank Trust National Association, not in its individual capacity, but solely as Owner Trustee | |
By: | /s/ Xxxx Xxxxxxxx | |
Name: Xxxx Xxxxxxxx | ||
Title: Vice President | ||
HYUNDAI CAPITAL AMERICA, | ||
as Servicer | ||
By: | /s/ Xxxx Xxxx Xxx | |
Name: Xxxx Xxxx Xxx | ||
Title: Chief Financial Officer | ||
XXXXXXX FIXED INCOME SERVICES LLC, | ||
as Asset Representations Reviewer | ||
By: | /s/ Xxxxxxx Xxxxx | |
Name: Xxxxxxx Xxxxx | ||
Title: Senior Vice President |
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Schedule A
Representations and Warranties, Review Materials and Tests
Review Materials
· | Retail Installment Contract |
· | Any assignment if not included in Contract |
· | Documents which evidence the security interest in the Financed Vehicle (Certificate of Title, E-Title, Application for Title, etc) (the “Title Documents’) |
· | List of Approved Contracts form numbers and revision dates |
· | Servicing System screen prints or data fields within the Data Tape (As of the Cutoff Date) showing (the “Cutoff Date Data File”) |
o | Receivable Active/Satisfied |
o | Scheduled Monthly Payment amount |
o | Annual Percentage Rate |
o | Original Balance |
o | Unpaid Balance |
o | Maturity Date |
o | Days Delinquent |
o | Bankruptcy Flag |
o | Litigation/Attorney Involvement Flag |
o | Vehicle Repossessed Flag |
o | Days Delinquent |
A-1 | (2024-A Asset Representations Review Agreement) |
· | Applicable Dealer Agreement |
· | List of Seller Affiliates |
· | Schedule of Receivables to Receivables Purchase Agreement and Sale and Servicing Agreement |
· | Receivable File |
Representation | Method of Testing | |
(i)(a) |
(i) Characteristics of Receivables. Each Receivable:
(a) was originated by a Dealer located in the United States of America for the retail sale of a Financed Vehicle, is payable in United States dollars, has been signed or electronically authenticated by the Obligor and the Dealer thereto, has been purchased by the Seller from such Dealer under an existing Dealer Agreement and has been validly assigned by such Dealer to the Seller,
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1. Confirm that Dealer’s location, indicated in the Receivable File, is in United States. 2. Confirm that the Receivable is payable in US Dollars. 3. Confirm that the Receivable has been signed by the Obligor and the Dealer. 4. Confirm that there is a Dealer Agreement between the applicable Dealer and the Seller. 5. Confirm the assignment section of the Receivable is signed by the Dealer and the Seller is listed as the assignee. |
A-2 | (2024-A Asset Representations Review Agreement) |
Representation | Method of Testing | |
(i)(b) |
(b) has created or shall create a first priority security interest in favor of the Seller in the Financed Vehicle, which security interest has been assigned by the Seller to the Depositor and by the Depositor to the Issuer,
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1. Confirm that the Receivable contains security interest language in favor of the Seller in the Financed Vehicle. 2. Confirm that a Certificate of Title or other suitable documentation lists Seller as lienholder or that an application for a Certificate of Title or other suitable documentation has been filed in the applicable state listing the Seller as lienholder. 3. Confirm that the Receivable is listed on Schedules of Receivables to the Receivables Purchase Agreement and the Sale and Servicing Agreement. |
(i)(c) | (c) contains provisions that permit the repossession and sale of the Financed Vehicle upon a default under the Receivable by the Obligor, | 1. Review the Receivable to confirm that its terms permit repossession and sale of the Financed Vehicle upon default by Obligor. |
(i)(d) | (d) provided, at origination, for fixed level monthly payments (provided that the first and last payments may be different from but in no event more than three times the level payments) that fully amortize the Amount Financed over the original term, |
1. Review the Receivable in order to confirm all payments at origination were scheduled as fixed monthly payments, with the possible exception of the first and last payments, which may be three times the level payment. 2. Using the Truth in Lending section of the Receivable, confirm that payment schedule fully amortizes the Amount Financed over the original term at the applicable APR. |
(i)(e) |
(e) amortizes using the simple interest method,
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1. Confirm the Receivable employs a simple interest method of amortization. |
(i)(f) | (f) has an Obligor which is not an affiliate of the Seller, | 1. Confirm that the Obligor’s name does not appear on a list provided by the Seller of the Seller’s affiliates. |
A-3 | (2024-A Asset Representations Review Agreement) |
Representation | Method of Testing | |
(i)(g) | (g) has an Obligor which is not listed on Seller’s electronic records related to receivables as a government or governmental subdivision or agency, and | 1. Confirm the Cutoff Date Data File does not indicate the Obligor was a government entity. |
(i)(h) | (h) has an Obligor which is not shown on the Servicer’s electronic records related to receivables as a debtor in pending bankruptcy proceeding, | 1. Confirm the Cutoff Date Data File does not indicate the Obligor was in bankruptcy. |
(ii) | (ii) Compliance with Law. Each Receivable complied at the time it was originated or made in all material respects with all requirements of law in effect at that time and applicable to such Receivable. | 1. Confirm that the contract form number and revision date are on a list of approved contract forms provided by the Seller. |
(iii) | (iii) Binding Obligation. Each Receivable represents the legal and binding payment obligation of the Obligor, enforceable in all material respects by the holder of the Receivable, except as may be limited by bankruptcy, insolvency, reorganization or other laws relating to the enforcement of creditors’ rights or by general equitable principles, consumer protection laws and the Servicemembers Civil Relief Act. |
1. Confirm that the contract form number and revision date are on a list of approved contract forms provided by the Seller. 2. Confirm that the buyer and co-buyer, if applicable, have signed the Contract. |
(iv) | (iv) Chattel Paper. Each Receivable constitutes either “tangible chattel paper” or “electronic chattel paper” within the meaning of the UCC as in effect in the state of origination. If such Receivable constitutes electronic chattel paper, the Seller has “control” of such electronic chattel paper within the meaning of Section 9-105 of the applicable UCC. |
1. Confirm that the contract form number and revision date are on a list of approved contract forms provided by the Seller. 2. Confirm that there is a signature under the appropriate buyer, co-buyer, if applicable, and Seller signature lines within the contract. 3. Confirm the Receivable contains security interest language in favor of the Seller in the Financed Vehicle? |
A-4 | (2024-A Asset Representations Review Agreement) |
A-5 | (2024-A Asset Representations Review Agreement) |
Representation | Method of Testing | |
(ix) | (ix) No Defenses. The Servicer’s electronic records related to receivables do not reflect any right of rescission, setoff, counterclaim or defense asserted or threatened by any Obligor for any Receivable indicated in the Seller’s receivable system. | 1. Confirm the Cutoff Date Data File does not contain any indication of any right of rescission, counterclaim or defense asserted or threatened by any Obligor as of the Cutoff Date. |
(x) | (x) No Default. As of the Cutoff Date, the Servicer’s receivable system did not disclose that there was any payment default under the terms of any Receivable (other than payment delinquencies of not more than 30 days). | 1. Review the records in Seller’s receivable system to confirm that Receivable was not more than 30 days past due as of Cutoff Date. |
(xi) | (xi) Insurance. Under the terms of each Receivable, the Obligor is required to maintain physical damage insurance covering the related Financed Vehicle. | 1. Confirm the Receivable contains language that requires the Obligor to obtain and maintain insurance against physical damage to the Financed Vehicle. |
(xii)(a) |
(a) each Receivable had an original number of scheduled payments of not less than 24 or more than 84, |
1. Review the Receivable, as amended by documents in the Receivable File and notations in the records in Seller’s receivable system, had an original number of scheduled payments within the allowable limits as of the Cutoff Date. |
(xii)(b) | (b) no Receivable was more than 30 days past due as of the Cutoff Date, | 1. Review the records in Seller’s receivable system to confirm the Receivable was not more than the maximum allowable days past due as of the Cutoff Date. |
(xii)(c) | (c) no Receivable has a final scheduled payment date after December 11, 2030, | 1. Confirm that the final scheduled payment date specified in the Receivable, as amended by documents in the Receivable File and notations in the records in Seller’s receivable system, was not later than latest allowable final scheduled payment date as of the Cutoff Date. |
A-6 | (2024-A Asset Representations Review Agreement) |
Representation | Method of Testing | |
(xii)(d) | (d) no Receivable has an APR of less than 0.00%, | 1. Review the records in Seller’s receivable system to confirm the Receivable did not have an APR less than the minimum allowable percentage rate as of the Cutoff Date. |
(xii)(e) | (e) each Receivable has a remaining number of scheduled payments of at least 5 and not more than 82, | 1. Review the records in Seller’s receivable system to confirm the Receivable had a remaining number of scheduled payments within the allowable limits as of the Cutoff Date. |
(xii)(f) | (f) each Receivable has a remaining balance of at least $5,000.00 and not greater than $85,000.00, and | 1. Review the records in Seller’s receivable system to confirm the Receivable had a remaining balance within the allowable limits as of the Cutoff date. |
(xii)(g) | (g) each Receivable is secured by a new or used automobile, light-duty truck or minivan. | 1. Confirm that the Receivable’s terms indicate the Receivable is secured by a new or used automobile, light-duty truck or minivan. |
A-7 | (2024-A Asset Representations Review Agreement) |