Exhibit 10.3
EXECUTION COPY
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OWNER TRUST ADMINISTRATION AGREEMENT
among
HYUNDAI AUTO RECEIVABLES TRUST 2004-A,
HYUNDAI MOTOR FINANCE COMPANY, as Administrator,
and
CITIBANK, N.A., as Indenture Trustee
Dated as of September 1, 2004
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TABLE OF CONTENTS
Page
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Section 1.1 Duties of the Administrator with Respect to the Depository Agreement
and the Indenture.............................................................................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...........................................11
Section 18. Limitation of Liability of Owner Trustee and Indenture Trustee.................................11
Section 19. Third-Party Beneficiary........................................................................12
Section 20. Nonpetition Covenants..........................................................................12
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Section 21. Liability of Administrator.....................................................................12
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This OWNER TRUST ADMINISTRATION AGREEMENT dated as of September 1, 2004
among HYUNDAI AUTO RECEIVABLES TRUST 2004-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").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Issuer was formed pursuant to a Trust Agreement dated as
of June 25, 2004 and is governed by an Amended and Restated Trust Agreement
dated as of September 1, 2004 (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 1.78125%
Asset Backed Notes, Class A-1, 2.36% Asset Backed Notes, Class A-2, 2.97% Asset
Backed Notes, Class A-3 and 3.54% Asset Backed Notes, Class A-4 (collectively,
the "Class A Notes"), 3.46% Asset Backed Notes, Class B (the "Class B Notes"),
3.36% Asset Backed Notes, Class C (the "Class C Notes"), and 4.10% Asset Backed
Notes, Class D Notes (the "Class D Notes", and, collectively with the Class A
Notes, the Class B Notes and the Class C Notes, the "Notes") pursuant to the
Indenture dated as of September 1, 2004 (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 1, 2004 (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 1, 2004 (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 (the Sale and Servicing
Agreement, the Depository Agreement, the Indenture and the Trust 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:
Section 1.1 Duties of the Administrator with Respect to the Depository
Agreement and the Indenture.
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);
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(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 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) the duty to cause the Servicer to comply with Sections 4.09, 4.10,
4.11 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(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);
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(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) 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));
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(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) 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.
(i) In addition to the duties of the Administrator set forth
above, the Administrator shall 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.
(ii) 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
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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.
(iii) 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.
(iv) 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.
(v) 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.
Notwithstanding anything to the contrary in this Agreement, the Administrator
shall not be obligated to, and shall not, (x) make any payments to the
Noteholders under the Related Agreements, (y) sell the Trust Estate pursuant to
Section 5.04 of the Indenture or (z) take any other action that the Issuer
directs the Administrator not to take on its behalf.
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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 as set
forth in Schedule C to 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.
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(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.
(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
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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:
(i) if to the Issuer or the Owner Trustee, to:
Hyundai Auto Receivables Trust 2004-A
In care of Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
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(ii) if to the Administrator, to:
Hyundai Motor Finance Company
10550 Talbert Avenue
Fountain Valley, CA 92708
Attention: Vice President, Finance
with a copy to the General Counsel
(iii) if to the Indenture Trustee, to:
Citibank, N.A.
111 Wall Street, 14th Floor, Zone 3
New York, New York 10005
Attention: Structured Finance Agency and Trust - Hyundai
Auto Receivables Trust 2004-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 the written consent of the Owner Trustee,
without the consent of 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; provided that (i) 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 (ii) 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 (A) 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 (B) 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 (i) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on Receivables or
distributions that are required to be made for the benefit of the Noteholders or
Certificateholders or (ii) 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
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not amend this Agreement without the permission of the Seller, which permission
shall not be unreasonably withheld.
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
11
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 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.
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 gross negligence or
willful misconduct and in no event shall the Administrator be liable under or in
connection with this
12
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.
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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 2004-A
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By: /s/ W. Chris Sponenberg
-------------------------------------
Name: W. Chris Sponenberg
Title: Vice President
CITIBANK, N.A., not in its individual
capacity but solely as Indenture Trustee
By: /s/ Karen Schluter
-------------------------------------
Name: Karen Schluter
Title: Vice President
HYUNDAI MOTOR FINANCE COMPANY, as
Administrator
By: /s/ Jaime Song
-------------------------------------
Name: Jae Min Song
Title: Treasurer
EXHIBIT A
POWER OF ATTORNEY
STATE OF )
)
COUNTY OF )
KNOW ALL MEN BY THESE PRESENTS, that Hyundai Auto Receivables
Trust 2004-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 1, 2004 (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 1st day of September 2004.
HYUNDAI AUTO RECEIVABLES TRUST 2004-A
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By: /s/ W. Chris Sponenberg
-------------------------------------
Name: W. Chris Sponenberg
Title: Vice President
STATE OF DELAWARE )
)
COUNTY OF NEW CASTLE )
Before me, the undersigned authority, on this day personally
appeared W. Chris Sponenberg, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that s/he signed
the same for the purposes and considerations therein expressed.
Sworn to before me this 31st
day of August 2004.
Kathleen A. Pedelini
Notary Public - State of Delaware