Exhibit 99.2
EXECUTION COPY
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ADMINISTRATION AGREEMENT
among
WORLD OMNI AUTO RECEIVABLES TRUST 2003-B
as Issuer,
WORLD OMNI FINANCIAL CORP.,
as Administrator,
WORLD OMNI AUTO RECEIVABLES LLC,
as Seller,
and
THE BANK OF NEW YORK
as Indenture Trustee
Dated as of December 2, 2003
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ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of December 2, 2003 (as
amended from time to time, this "Agreement"), is among WORLD OMNI AUTO
RECEIVABLES TRUST 2003-B, a Delaware statutory trust (the "Issuer"), WORLD OMNI
FINANCIAL CORP. ("WOFCO" or in its capacity as administrator, the
"Administrator"), WORLD OMNI AUTO RECEIVABLES LLC (the "Seller") and THE BANK OF
NEW YORK, as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer is a statutory trust under the Delaware Statutory
Trust Act created by a trust agreement dated as of November 14, 2003 (as amended
and restated as of the date hereof, and as may be further amended, supplemented
or otherwise modified and in effect from time to time, the "Owner Trust
Agreement") among the Seller, as Depositor, Chase Manhattan Bank USA, National
Association, as Owner Trustee (together with its successors and assigns in such
capacity, the "Owner Trustee").
WHEREAS, the Issuer is issuing Class A-1, 1.13% Asset-Backed Notes,
Class A-2, 1.54% Asset-Backed Notes, Class A-3, 2.20% Asset-Backed Notes, Class
A-4, 2.87% Asset-Backed Notes and Class-B, 2.56% Asset-Backed Notes,
(collectively, the "Notes") pursuant to an Indenture, dated as of the date
hereof (as amended, supplemented or otherwise modified and in effect from time
to time, the "Indenture"), between the Issuer and the Indenture Trustee
(capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in, or incorporated by reference into, the Indenture);
WHEREAS, the Issuer is issuing Certificates (the "Certificates")
pursuant to the Owner Trust Agreement;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes including (i) the sale and servicing agreement,
dated as of the date hereof (as amended, supplemented or otherwise modified and
in effect from time to time, the "Sale and Servicing Agreement"), between the
Issuer, the Seller and WOFCO, as servicer (in such capacity, the "Servicer"),
(ii) a Letter of Representations, dated as of the date hereof, among the Issuer,
the Indenture Trustee and The Depository Trust Company ("DTC") relating to the
Notes (as amended, supplemented or otherwise modified and in effect from time to
time, the "Depository Agreement") and (iii) the Indenture (the Sale and
Servicing Agreement, the Depository Agreement, the Owner Trust Agreement and the
Indenture being referred to hereinafter collectively as the "Related
Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (i) the Notes
and the collateral therefor pledged pursuant to the Indenture (the "Collateral")
and (ii) the beneficial ownership interest in the Issuer (the holder of such
interest being referred to herein as the "Depositor");
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
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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 sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Duties of the Administrator.
(a) Primary Duties of the Administrator.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under
the Related Agreements. In addition, the Administrator shall consult
with the Owner Trustee regarding the duties of the Issuer or the Owner
Trustee under the Related Agreements. The Administrator shall monitor
the performance of the Issuer and shall advise the Owner Trustee when
action is necessary to comply with the respective duties of the Issuer
and the Owner Trustee under the Related Agreements. 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 Related Agreements. In furtherance of the
foregoing, the Administrator shall take all appropriate action that
the Issuer or the Owner Trustee is required 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
(references are to Sections of the Indenture):
(A) the preparation of or obtaining of the documents and
instruments required for execution and authentication of the
Notes and delivery of the same to the Indenture Trustee (Section
2.02);
(B) the preparation of or obtaining of the documents and
instruments required for execution and authentication of
temporary Notes and delivery of the same to the Indenture Trustee
(Section 2.03);
(C) 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 2.05);
(D) the duty to cause the replacement of lost or mutilated
Notes upon the request of the Issuer (Section 2.06);
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(E) the fixing or causing to be fixed of any specified
record date and the notification of the Indenture Trustee and
Noteholders with respect to special payment dates, if any
(Section 2.08(c));
(F) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of Collateral (Section 2.10);
(G) the preparation of Definitive Notes in accordance with
the instructions of the Clearing Agency (Section 2.13);
(H) the maintenance of an office in the Borough of
Manhattan, City of New York, for registration and transfer or
exchange of Notes (Section 3.02);
(I) 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);
(J) the direction to the Indenture Trustee to deposit
monies with Paying Agents, if any, other than the Indenture
Trustee (Section 3.03);
(K) 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 and the Collateral
(Section 3.04);
(L) 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 Collateral (Section 3.05);
(M) the delivery of an Opinion of Counsel on the Closing
Date and annual 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);
(N) 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));
(O) the notification of the Indenture Trustee and each
Rating Agency 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 or obligations under
the Sale and Servicing
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Agreement with respect to the Receivables, the taking of all
reasonable steps available to remedy such failure (Section
3.07(d));
(P) the Issuer's duty to use all reasonable efforts to
cause the Servicer to comply with Sections 4.09, 4.10, 4.11,
5.07(b) and Article IX of the Sale and Servicing Agreement
(Section 3.14);
(Q) the delivery of written notice to the Indenture
Trustee, Owner Trustee and each Rating Agency of each Event of
Default under the Indenture and each default by the Servicer or
the Seller under the Sale and Servicing Agreement (Section 3.19);
(R) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation
of an Officer's Certificate and the obtaining of the Opinion of
Counsel and the Independent Certificate relating thereto (Section
4.01);
(S) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Collateral in a
commercially reasonable manner if an Event of Default shall have
occurred and be continuing (Section 5.04);
(T) the preparation of any written instruments required to
give effect to the authority of any co-trustee or separate
trustee and any written instruments necessary in connection with
the resignation or removal of the Indenture Trustee or any
co-trustee or separate trustee (Sections 6.08 and 6.10);
(U) the furnishing of 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);
(V) the preparation and, after execution by the Issuer, the
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);
(W) 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);
(X) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and
Independent
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Certificates, if necessary, for the release of the Trust Estate
(Sections 8.04 and 8.05);
(Y) 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);
(Z) arranging for the execution and delivery of new Notes
conforming to any supplemental indenture (Section 9.06);
(AA) the duty to notify Noteholders and the Rating Agencies
of redemption of the Notes or to cause the Indenture Trustee to
provide such notification (Section 10.02);
(BB) 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));
(CC) 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));
(DD) the notification of the Rating Agencies, upon the
failure of the Issuer or the Indenture Trustee to give such
notification, of the information required pursuant to Section
11.04 of the Indenture (Section 11.04);
(EE) the preparation and delivery to the Noteholders and the
Indenture Trustee of any agreements with respect to alternate
payment and notice provisions (Section 11.06); and
(FF) the recording of the Indenture, if applicable (Section
11.15); and
(ii) The Administrator will:
(A) pay the Indenture Trustee and any separate trustee or
co-trustee appointed pursuant to Section 6.10 of the Indenture (a
"Separate Trustee") from time to time reasonable compensation for
all services rendered by the Indenture Trustee or Separate
Trustee, as the case may be, under the Indenture (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee or any Separate
Trustee upon its request
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for all reasonable expenses, disbursements and advances incurred
or made by the Indenture Trustee or Separate Trustee, as the case
may be, in accordance with any provision of the Indenture
(including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence, bad faith or willful misconduct;
(C) indemnify the Indenture Trustee and any Separate
Trustee and their respective agents for, and hold them harmless
against, any Expenses (as defined below) incurred without
negligence, bad faith or willful misconduct on their part,
arising out of or in connection with the acceptance or
administration of the transactions contemplated by the Basic
Documents, including the reasonable costs and expenses of
defending themselves against any claim or liability in connection
with the exercise or performance of any of their powers or duties
under the Indenture; and
(D) indemnify the Owner Trustee (including in its
individual capacity) and its officers, directors, employees,
successors, assigns, agents and servants as primary obligor from
and against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all
reasonable and documented costs, expenses and disbursements
(including reasonable and documented legal fees and expenses and
other amounts owed to the Owner Trustee pursuant to the Trust
Agreement) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee in any way relating to or
arising out of the Basic Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action or
inaction of the Owner Trustee, except only that the Administrator
shall not be liable for or required to indemnify the Owner
Trustee from and against Expenses arising or resulting from any
of the matters described in the third sentence of Section 7.01 of
the Owner Trust Agreement. The indemnities contained in this
Section shall survive the resignation or termination of the Owner
Trustee, or the termination of this Agreement. In any event of
any claim, action or proceeding for which indemnity will be
sought pursuant to this Section, the Owner Trustee's choice of
legal counsel shall be subject to the approval of the
Administrator, which approval shall not be unreasonably withheld.
(b) Additional Duties of the Administrator.
(i) In addition to the duties set forth in Section 1(a)(i), 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, and at
the request of the Owner Trustee shall take all appropriate action
that the Issuer or the
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Owner Trustee is required 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.
(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 Sections
5.05 and 5.06 of the Owner Trust Agreement with respect to, among
other things, accounting and reports to the Depositor.
(iii) As soon as practicable, but no later than seventeen months
after the date of the final prospectus, the Administrator will cause
the Indenture Trustee to make generally available to the Noteholders
an earnings statement of the Issuer covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Notes and (ii) the effective
date of the most recent post-effective amendment to the registration
statement to become effective prior to the date of the final
prospectus and, in each case, satisfying the provisions of Section
11(a) of the Securities Act (including Rule 158 promulgated
thereunder).
(iv) The Administrator shall provide written notice to the
Indenture Trustee upon notification to the Administrator that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities as described in the Depository Agreement. Upon the
receipt of such notification from the Clearing Agency, the
Administrator shall use reasonable efforts to locate and appoint a
qualified successor Clearing Agency.
(v) The Administrator shall have the duties of the
Administrator specified in Section 10.02 of the Owner Trust Agreement
required to be performed in connection with the resignation or removal
of the Owner Trustee, and any other duties expressly required to be
performed by the Administrator under the Owner Trust Agreement.
(vi) 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
that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and
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shall be, in the Administrator's opinion, no less favorable to the
Issuer than would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of
the Administrator are non-ministerial, the Administrator shall not
take any action unless authorized pursuant to the Basic Documents and
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 not have unreasonably withheld
consent or shall not have provided an alternative direction. 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 Contracts);
(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 a successor Administrator or a
Successor Servicer, 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.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not,
(A) make any payments to the Noteholders under the Related Agreements,
(B) sell the Collateral pursuant to clause (iv) of Section 5.04(a) of
the Indenture, (C) take any other action that the Issuer directs the
Administrator not to take on its behalf or (D) take any other action
which may be construed as having the effect of varying the investment
of the Holders.
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 and the Indenture
Trustee with reasonable prior notice at any time during normal business hours.
The Issuer and the Indenture Trustee shall, and shall cause their
representatives to, hold in confidence all such information except to the extent
disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and
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except to the extent that the Indenture Trustee may reasonably determine that
such disclosure is consistent with its obligations under the Indenture.
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 entitled to an annual payment of compensation of $1,000
which shall be solely an obligation of the Servicer.
Section 4. Additional Information to be Furnished to the Issuer.
The Administrator shall furnish to the Issuer and the Indenture
Trustee from time to time such additional information regarding the Collateral
as the Issuer or the Indenture Trustee 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 shall (i) constitute the
Administrator and any of the Issuer, the Owner Trustee or the Indenture Trustee
as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) 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.
Section 8. Term of Agreement; Resignation and Removal of Administrator.
This Agreement shall continue in force until the dissolution of the
Issuer, upon which event this Agreement shall automatically terminate.
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(a) Subject to Sections 8(d) and 8(e), the Administrator may resign
its duties hereunder by providing the Issuer and the Indenture Trustee with
at least 60 days' prior written notice.
(b) Subject to Sections 8(d) and 8(e), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(c) Subject to Sections 8(d) and 8(e), 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 30 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, or 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) above shall occur, it shall give written notice thereof to
the Issuer and the Indenture Trustee within seven days after the occurrence of
such event.
(d) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator acceptable
to the Indenture Trustee shall have been appointed by the Issuer with the
consent of the Indenture Trustee and (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.
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(c) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
Section 9. Action upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of this Agreement
pursuant to the first sentence of Section 8 or the resignation or removal of the
Administrator pursuant to Section 8(a), (b) or (c), respectively, the
Administrator shall be entitled to be paid the prorated portion of all fees and
reimbursable expenses as set forth in Section 3 accruing to it to the date of
such termination, resignation or removal. The Administrator shall forthwith upon
such termination pursuant to the first sentence of Section 1.08 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(a), (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. The Administrator's payment and indemnification obligations
pursuant to this Agreement which arose as a result of Administrator's actions
while acting as Administrator shall survive the termination of this Agreement
and the resignation and removal 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:
WORLD OMNI AUTO RECEIVABLES TRUST 0000-X, x/x Xxxxx Xxxxxxxxx Xxxx
XXX, National Association, 000 Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxx 0 XXX0, Xxxxxx,
Xxxxxxxx 00000.
(b) if to the Administrator, to:
WORLD OMNI FINANCIAL CORP., 000 Xxx Xxxxx Xxxxxxxxx, Xxxxxxxxx Xxxxx,
Xxxxxxx 00000 Attention: Xxxxxxx Xxxxxxxxx, Telecopy: (000) 000-0000
(c) if to the Indenture Trustee, to:
The Bank of New York, 000 Xxxxxxx Xxxxxx, 0 Xxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx Xxxxx, Telecopy: 000-000-0000 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 parties hereto, with the prior written
consent of the Owner Trustee,
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but without the consent of the Noteholders, 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 the Noteholders;
provided that such amendment will not, as so evidenced, upon the request of the
Indenture Trustee, by an Officer's Certificate, materially and adversely affect
the interest of any Noteholder. This Agreement may also be amended by the
parties hereto with the prior written consent of the Owner Trustee and the
holders of Notes evidencing at least 50% of the Outstanding Amount of the
Controlling Securities 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; provided, further, 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 the Contracts or
distributions that are required to be made for the benefit of the Noteholders or
(ii) reduce the aforesaid percentage of the holders of Notes which are required
to consent to any such amendment, without the consent of the holders of all
outstanding Notes. Notwithstanding the foregoing, the Administrator may 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, the Owner
Trustee and the Indenture 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, the Indenture Trustee 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 the Rating Agency
Condition is satisfied and such successor organization executes and delivers to
the Issuer, the Owner Trustee and the Indenture Trustee an agreement, in form
and substance reasonably satisfactory to the Issuer, the Owner Trustee and the
Indenture Trustee, 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. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
Section 13. Governing Law.
This Agreement shall, in accordance with Section 5-1401 of the General
Obligations Law of the State of New York, be governed by, and construed in
accordance with, the laws of the State of New York without regard any otherwise
applicable conflict of law provisions.
Section 14. Headings.
The section and subsection 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.
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Section 15. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be an original and all of which 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 WOFCO in Other Capacities.
Nothing in this Agreement shall affect any obligation WOFCO 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 countersigned by Chase Manhattan Bank USA, National
Association, not in its individual capacity but solely in its capacity as
Owner Trustee of the Issuer, and in no event shall Chase Manhattan Bank
USA, National Association, 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 Owner Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by The Bank of New York, as Indenture
Trustee and in no event shall The Bank of New York 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.
Section 19. Third-Party Beneficiary.
The Owner Trustee is a third-party beneficiary to this Agreement and
is entitled to the rights and benefits hereunder and may enforce the provisions
hereof as if it were a party hereto.
Section 20. Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement, each
party hereto shall not, at any time, acquiesce, petition or otherwise
invoke or cause the Issuer to invoke the process of any court or government
authority for the purpose of commencing
14
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.
(b) Notwithstanding any prior termination of this Agreement, each
party hereto shall not, solely in its capacity as a creditor of the Seller,
at any time, acquiesce, petition or otherwise invoke or cause the Seller to
invoke the process of any court or government authority for the purpose of
commencing or sustaining an involuntary case against the Seller 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 Seller or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller.
* * * * *
15
EXECUTION COPY
IN WITNESS WHEREOF, the parties hereto have caused this Administration
Agreement to be duly executed and delivered as of the day and year first above
written.
WORLD OMNI AUTO RECEIVABLES TRUST
2003-B, as Issuer
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in
its individual capacity but solely as
Owner Trustee
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
WORLD OMNI AUTO RECEIVABLES LLC,
as Seller
By: /s/ Xxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK, as Indenture
Trustee
By: /s/ Xxxxxxx X. Clan
------------------------------------
Name: Xxxxxxx X. Clan
Title: Assistant Treasurer
WORLD OMNI FINANCIAL CORP., as
Administrator
By: /s/ Xxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Assistant Treasurer
Administration Agreement
EXHIBIT A
FORM OF POWER OF ATTORNEY
STATE OF _____________ )
COUNTY OF ____________ )
KNOW ALL MEN BY THESE PRESENTS, that Chase Manhattan Bank USA,
National Association, a national banking association, not in its individual
capacity but solely as owner trustee ("Owner Trustee") for the WORLD OMNI AUTO
RECEIVABLES TRUST 2003-B (the "Trust"), does hereby make, constitute, and
appoint WORLD OMNI FINANCIAL CORP. as Administrator under the Administration
Agreement (as defined below), and its agents and attorneys, as Attorneys-in-Fact
to execute on behalf of the Owner Trustee or the Trust all such documents,
reports, filings, instruments, certificates and opinions as it shall be the duty
of the Owner Trustee or the Trust to prepare, file or deliver pursuant to the
Related Agreements (as defined in the Administration Agreement), including,
without limitation, to appear for and represent the Owner Trustee and the Trust
in connection with the preparation, filing and audit of federal, state and local
tax returns pertaining to the Trust, 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 restriction on
assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements. For the purpose of this Power of
Attorney, the term "Administration Agreement" means the Administration
Agreement, dated as of December 2, 2003, by and among the Trust, World Omni
Financial Corp., as Administrator, World Omni Auto Receivables LLC, as Seller,
and The Bank of New York, as Indenture Trustee, as such may be amended,
supplemented or otherwise modified and in effect from time to time.
All powers of attorney for this purpose heretofore filed or executed
by the Owner Trustee are hereby revoked.
EXECUTED this _____ day of ____________, ____
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By:
-------------------------------------
Name:
Title:
Administration Agreement
